Justice Committee on Nov. 23rd, 2011

[Jack Harris, NDP, St. John's East, NL]

Mr. Cotler has a couple of amendments to the same....

[The Chair, Conservative, Dave MacKenzie]

Mr. Cotler, we have Liberal-21 and Liberal-22, but we need to deal with Liberal-21 before you move Liberal-22.

[Irwin Cotler, Liberal, Mount Royal, QC]

Correct.

[The Chair, Conservative, Dave MacKenzie]

So perhaps you would like to move Liberal-21.

[Irwin Cotler, Liberal, Mount Royal, QC]

Yes, Mr. Chairman. I move that clause 43 be amended by adding after line 22 on page 26 the following:

to receive treatment for mental health issues or attend a mental health treatment program approved by the Attorney General; or

In a word, Mr. Chairman, the purpose of this amendment is that upon conviction of an offence for which a minimum punishment is prescribed, the court may, when satisfied that a person requires mental health care, delay sentencing to enable the person to receive treatment or participate in a mental health program approved by the Attorney General. It's very analogous to the drug treatment, except the subject matter here has to do with mental health issues. I want to say, Mr. Chair, that it is utterly not only underrepresented but not represented in this bill.

When we had the debate on the need for a national suicide prevention strategy, we noted that 90% of the people there had some form of mental illness. Similarly, Mr. Chair, this legislation has no reference to the mental health component. I'm offering this provision so that, in the same way in terms of drug treatment, in an analogous fashion, the court can, when satisfied that a person requires mental health care, delay sentencing, etc.

[The Chair, Conservative, Dave MacKenzie]

Thank you, Mr. Cotler.

Just so we understand, Liberal-22 cannot be moved if Liberal-21 is defeated, because it's—

[Irwin Cotler, Liberal, Mount Royal, QC]

There's a connecting link. I understand that.

[The Chair, Conservative, Dave MacKenzie]

Mr. Harris, did you say you wished to speak to it?

[Jack Harris, NDP, St. John's East, NL]

I wish to speak to this, and perhaps one of my colleagues may as well. We're not going to speak very long, except to point out that the requirement that it be a drug treatment court.... We've had some discussion back and forth about this during the course of hearing witnesses, as well as in this debate today. The notion of the drug treatment court sounds very plausible, and certainly we don't have any objection to the drug treatment court, but the drug treatment court would be included in our amendment, because obviously a drug treatment court would be a drug treatment rehabilitation program.

The problem is that there are only a handful of places in this country that actually have drug treatment courts. So if we're going to provide an opportunity for people.... We've already been through the debate about mandatory minimums; this is an exception to it, and an exception that modifies and ameliorates to some extent the harshness of the mandatory minimums. This alleviates the requirement to impose the minimum punishment if they're engaged in a drug treatment rehabilitation program. By limiting it to drug treatment courts, or section 720 of the Criminal Code, the vast majority of the people in this country who would be exposed to the mandatory minimums could not avail themselves of this provision, because these drug treatment courts don't actually exist.

I believe there's one in Toronto, there's one in Vancouver, one in Edmonton, and a couple of other places—Calgary perhaps. They are not terribly extensive, there are not a lot of people who are able to participate in them, and the success rate hasn't been sterling. So it's not clear that proposed subsection 10(5), which we were proposing to eliminate by replacing it with this provision, would actually have much effect at all.

I think by putting this clause in, instead of the existing one in clause 43...not only would it allow more Canadians who are in this circumstance to be able to avail themselves of this so they could rehabilitate themselves from their drug addictions or dependencies, but it would provide encouragement to the provinces, which have a choice. Some of the provinces are complaining about the fact that they're going to be saddled with the costs of incarcerating people for mandatory minimum periods as set forth in this act. We know that the cost of that is tremendous, and the cost of that is tremendous compared to the cost of a drug rehabilitation program, which could serve the needs of the individual, but also serve the needs of society.

So instead of putting someone in jail, where they may not have access to any program at all—and I think we've had some evidence that the more overcrowding of jails we have, the less access to programming that's available—this would provide an incentive, an encouragement, to provinces to actually have drug treatment rehabilitation programs available to people when they are convicted of offences or if they're before the courts.

Some people may not avail themselves of them; some people may. They could in fact be conditions of a sentence added on if someone did receive a certain sentence of incarceration, or there could be a condition of probation if a person is willing to participate in a drug treatment rehabilitation program. This seems to me to be something that could aid in the rehabilitation of an individual and avoid the mandatory minimum sentence. If the individual wished to participate in such a program, and it was a condition of his probation or his sentence that he maintain his status in such a program, then the end result of failing to continue to participate in the program could be incarceration. If it was a suspended sentence, for example, that person could be back before the court and sentenced to incarceration. So it's a bit of a carrot-and-stick approach.

It is being obviously suggested by the existence of clause 43 itself. Then the fact of the matter is there's also.... You know, we're just using the stick. If there's a thought that a carrot should be available as well, then I think it should be readily available and not discriminate against people on the basis of where they live in Canada.

So that's the rationale for our amendment. I think it's a positive improvement to the act, and I ask for the consideration of government members to allow this amendment.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Mr. Woodworth.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Thank you very much, Mr. Chair.

I would like to speak briefly to Mr. Cotler's amendment. In fairness, I'll say at the outset I do not propose to support it. However, having said that, I believe Mr. Cotler has put his finger on a real problem, and that is that the incidence of mental illness in our prisons is too great. There are people who should not be in prison because they suffer from mental health disorders of various kinds.

Having said that, I will not support this because, first of all, we're dealing with sections that address drug issues, and I'd like to keep the focus on drug treatment. Secondly, I think the issue of mental health disorders in our prisons is a much wider one that deserves wider government study and efforts to address.

Thirdly, and I know Mr. Cotler will know what I mean by this—if I can mangle the language again a little more—I don't want to “psychiatrize” our criminal justice system. In my youth, there were certain socialist East Bloc nations that did purport to put people into psychiatric hospitals for what were really criminal offences. It's a difficult and fine line to draw, and I would like to see a little more government study of this before we go down this path.

But I do want to commend Mr. Cotler for putting his finger on that particular problem.

Thank you.

[The Chair, Conservative, Dave MacKenzie]

Thank you, Mr. Woodworth.

Ms. Boivin.

[Françoise Boivin, NDP, Gatineau, QC]

I am going to continue on amendment NDP-22 concerning clause 43 and drug treatment rehabilitation programs. This is not always the case. One of the problems with these centres is that there are not huge numbers of them. According to the information I have, there are six. I am going to read it in English:

only six drug treatment courts, and access is limited.

This clause deals with very specific cases. These are accused persons who still have a chance of rehabilitation through these treatment programs. I think this is a humane way to look at things. People may not be familiar with Canadian drug treatment courts.

The legislative summary from the Library of Parliament also says:

One of the main goals of the Drug Treatment Court Program is to facilitate the treatment of drug offenders by providing an intensive, court-monitored alternative to incarceration. It is said that drug treatment courts have a more humane approach to addressing minor drug crimes than incarceration.

This is a constant in what we are saying. You have not seen us here trying to reduce the maximum sentences to which people are liable who commit absolutely horrifying offences, some of which Mr. Woodworth listed in his speech a few moments ago about an earlier amendment. No one here would like to see the life sentences reserved for certain cases abolished, or the 14-year sentences reserved for others. That is not the question, those are not at all the cases we are talking about here. We are talking about cases that call for a much more humane approach. Sometimes it is all very well to make passionate speeches, but we also have to be able to put things in perspective.

Once again, I think this is a good amendment, one that would make the legislation better, and that addresses certain objectives that will not be achieved. This may be one way that we could achieve those ends.

[The Chair, Conservative, Dave MacKenzie]

Thank you, Ms. Boivin.

Mr. Harris.

[Jack Harris, NDP, St. John's East, NL]

Thank you, Chair.

I want to speak briefly to Mr. Cotler's amendment as well. I think Mr. Woodworth has it wrong. He referred to the Soviet Union putting people in mental hospitals who should be in prison, or as a substitute for putting them in prison.

What I think Mr. Cotler's amendment deals with is suggesting that we'd be putting them in prison instead of having them receive treatment for a mental health issue, or attend a mental health treatment program instead of being put in prison, if the reason for being before the law has to do with mental health issues.

Yes, I agree that obviously he has put his finger on something very important that this bill doesn't pay very much attention to. I agree with Mr. Woodworth that this ought to be the subject of a great deal of parliamentary attention. I hope we will see that in terms of mental health receiving better support from the Government of Canada and mental health treatments getting the attention they deserve. Perhaps that should be the subject of much negotiation in terms of the new health accord.

Be that as it may, I think here we're talking about adding additional rationale for delaying sentencing rather than imposing this mandatory minimum in order to receive treatment for mental health issues or to attend a mental health treatment program approved by the Attorney General. I don't see how that interferes with the operations of the prisons or how it “psychiatrizes” prison treatment. It actually allows the delay of sentencing in order for someone to receive treatment for a mental health issue, as opposed to ending up in jail where they might not get any treatment at all.

[The Chair, Conservative, Dave MacKenzie]

Mr. Wilks.

[David Wilks, Conservative, Kootenay—Columbia, BC]

Thank you, Chair. I want to quickly comment on that.

The problem I see with regard to the mental health issue is that we go beyond the realm of a criminal offence and we get into the issue of person-by-person mental health issues. When we bring those people before the courts, at some point in time as well there's a requirement for them to be checked by a physician—and sometimes, in the case of British Columbia, two physicians—who must commit that person.

Although I completely agree with Mr. Cotler and his summation, I think we're going down a road that needs to be looked at in a far different scope. To try to attach the mental addictions to drug addictions...that may be the case in some cases, but a lot of times if you can quell the drug addiction you will solve parts of the mental problem as well.

[The Chair, Conservative, Dave MacKenzie]

Mr. Cotler.

[Irwin Cotler, Liberal, Mount Royal, QC]

Mr. Chairman, I have represented a number of political prisoners over the years from the former Soviet Union and Eastern Europe at the time who were committed to a psychiatric hospital, not for reasons of treatment but for reasons of criminalization and punishment.

This is the other way around, Mr. Chairman. We are in a democracy. I am saying that people who have a mental illness or a disability should be able to get the treatment they deserve and not be criminalized. This is the exact reverse of the example that Mr. Woodworth is giving. We do have these situations before the courts in this regard.

I am saying that in this entire legislation—and this is on the issue of mandatory minimums, so it is applicable here—there is no protective provision with regard to those who are suffering from mental illness or mental disability. This is being offered within the framework of the mandatory minimums with which we are dealing, and it is being offered for purposes of allowing the Attorney General to approve the program that can provide for treatment rather than incarceration.

[The Chair, Conservative, Dave MacKenzie]

Thank you, Mr. Cotler.

Seeing no further intervention, we're at clause 43, NDP-22.

(Amendment negatived)

Liberal-21.

(Amendment negatived)

(Clause 43 agreed to)

Shall schedule 1 carry?

[Some hon. members]

Agreed.

[The Chair, Conservative, Dave MacKenzie]

Shall clause 1, the short title, carry?

[Some hon. members]

Agreed.

[The Chair, Conservative, Dave MacKenzie]

Shall the title carry?

[Some hon. members]

Agreed.