Justice Committee on Oct. 27th, 2011

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Thank you, Chair.

Mrs. Campbell, you're a survivor of being sexually abused as a child. At an early age, you made a choice either to live in fear or to voice your claim—and certainly, you're to be commended for that. Despite your fear of the typical abuse, you founded the Canadian Centre for Abuse Awareness so that others wouldn't have to endure that hardship—and again, kudos to you for that.

In your opinion, how is our government's Bill C-10 going to help address the serious problem of sexual exploitation of children in Canada?

[Ellen Campbell]

I just think it's a deterrent. As I said earlier, I'm calling it an entry stage problem. It's just as serious when somebody is watching child porn: It is an entry point. They haven't actually perpetrated any acts on a child, other than, obviously, watching the Internet porn, which is also not right. But I think if at that level there is tougher sentencing, people are going to think twice about even watching Internet porn, let alone purchasing it.

Again, I would like to see the sentences be even tougher, but at least we're giving a message. I applaud this government, because I think this government is very tough on crime, and they're giving the message that it's not okay. As I was saying a little earlier, once someone crosses that line into a serious addiction, I can't guarantee that this is going to deter a serious pedophile, but what it would do is to get him off the street. We just need to get them off the street and protect our children and create a safe place.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Thank you.

Obviously the government has introduced mandatory prison sentences in response to the concerns expressed by Canadians. The idea is to be tough on serious crime. I note your agreement that by imposing longer sentences for serious crime, we're better able to protect Canadians. That would be your view on that.

[Ellen Campbell]

Absolutely. That's correct. Thank you.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Do I have time left?

[The Chair, Conservative, Dave MacKenzie]

You have a minute and a half.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

I'm going to give my time to Mr. Jean.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

Thank you, Mr. Chair, and thank you, witnesses, for attending today.

Mr. Trudell, I'm interested in your proposed amendment or provision dealing with mental health.

The 40 years of experience you have is certainly invaluable. I found that in my time as a criminal lawyer, I became desensitized to the realities of what Canadians expected and what judges were imposing. I can see by your reaction and the nod of your head that you understand. I'm sure you've seen the same thing.

Would you suggest that these people receive less of a sentence? For instance, if they sexually assaulted a child and received mental treatment for three months, would that mean the judge should take into consideration those three months of time and impose a sentence of much less than the minimum mandatory sentence this government is putting forward?

[William Trudell]

I think my answer to the question is this. If it's recognized that a mental health or health issue is connected to the offence, then obviously that should be taken into consideration by the court. Our proposal says, just as with drug treatment, that the judge can delay sentencing if there is a treatment program that the person successfully completes, because that contributes to safer streets. And if there is treatment needed, that's addressed.

What we're doing is looking at the bigger picture. In other words, if it is clearly established that there's a mental health issue present—not just because somebody suggests it, but because it's there—then I think we would all agree that we want that addressed, because if that's not addressed—

[The Chair, Conservative, Dave MacKenzie]

Sorry, your time's up. Maybe we can expand on that

[William Trudell]

Okay. Sorry.

[The Chair, Conservative, Dave MacKenzie]

That's no problem.

Mr. Cotler.

[Irwin Cotler, Liberal, Mount Royal, QC]

Thank you, Mr. Chairman.

I also want to commend the witnesses. Two of you, Ms. Campbell, Madame Jong, vous êtes vous-mêmes des victimes, you yourselves have been victims, and two of you are effectively here on behalf of victims in one form or another.

I want to commend Mr. Cooper for his presentation on a very difficult subject. People still ask why Canadians don't have a civil remedy against the perpetrators of acts of terror. I think it's important to point out, because it's not always appreciated, that the State Immunity Act at this point shields foreign governments, their agents, and perpetrators of acts of terror, from civil remedy. So the core of this legislation is an amendment to the State Immunity Act, because we have an anomalous situation. If a foreign state breaches a contract, there is a commercial exception and you have a civil remedy; but if a foreign state engages in an act of terrorism against Canadians, itself or through its agents, Canadians don't have a civil remedy. So the legislation as it now exists, not by intention but by consequence, privileges the foreign states committing acts of terror over the rights of Canadians. So I want to commend you, Mr. Cooper, for your presentation and putting so succinctly the remedies that are needed.

Because of the time factor, I want to ask Mr. Trudell to continue where he was just recently obliged to conclude.

[William Trudell]

Thank you, Mr. Cotler.

What I was saying was that if it's demonstrated that a mental health issue has contributed to the offence, it's in the interest of all of us that it be dealt with, including delaying sentencing for a treatment program to be successfully completed. It allows the court to recognize that there's some health concern present and that it should be addressed. I think we all agree that if there's a health concern, a health issue, that has contributed to the offence, then the answer is not just to lock someone up; it's to deal with it so that when they are released, the streets are safer.

[The Chair, Conservative, Dave MacKenzie]

You still have two-and-a-half minutes, sir.

[Irwin Cotler, Liberal, Mount Royal, QC]

I'd like to pursue this underlying premise, Mr. Chair.

I can appreciate that your whole approach here is that mental health is effectively underrepresented, or not represented, in this legislation.

We recently had a debate in this House on suicide prevention and having a national suicide prevention strategy. One of the datums in that debate was that 90% of those who commit suicide have mental health-related issues or psychiatric and psychological problems.

Do you see the particular set of amendments you are proposing as having an important preventive dimension in that regard?

[William Trudell]

Quite frankly, Mr. Cotler, we were surprised that mental health was not mentioned in the bill, because it's something that every one of the parties is concerned about, and it tracks the drug prevention section. Also, in the section on release from prison you'll find that mental health care is a phrase that's mentioned.

We feel this is in the spirit of having safer communities and suggest that it was perhaps overlooked. And if it were in, it wouldn't really change anything, but it would signal that the government and members of Parliament, whom we respect.... It is your job to change the law and introduce laws as you see fit. But we just feel there's a vacuum in dealing with mental health, and everyone will tell you that it is a real problem in criminal justice, an enormous problem.

[Irwin Cotler, Liberal, Mount Royal, QC]

Thank you.

[William Trudell]

I think the statistics indicate that after sentencing, 37% of persons in our correctional facilities are suffering from a mental disorder of some nature. That was a statistic presented at the conference, “Building Bridges: Mental Health and the Justice System in Calgary”.

[Irwin Cotler, Liberal, Mount Royal, QC]

Thank you for making that important point. I think that's a lacuna in the legislation that I hope we can correct.

[The Chair, Conservative, Dave MacKenzie]

Mr. Rathgeber.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Thank you, Mr. Chair, and my thanks to the witnesses for your attendance and your testimony.

Mr. Trudell, it's good to see you again.

I want to follow up on the mental health provision that Mr. Jean and my friend Mr. Cotler referred to. How would this work exactly? What would the interaction be with sections 16 and 672 of the Criminal Code, which allow an individual to be held not criminally responsible if he or she is suffering from a mental illness? I'm assuming—but I don't want to put words in your mouth—that you're talking about mental illness of a less grave kind than that qualifying one for being held not criminally responsible. Is that correct?

[William Trudell]

Yes. The issue of someone's not being criminally responsible because of mental illness has been in our Criminal Code forever. In other words, we don't punish someone who doesn't understand the nature and quality of his or her act. However, what we are faced with in this country are various mental disorders and various forms of mental illness that keep people away from work, that contribute to their addictions, and that cause them to be brought before the criminal justice system.

I think if you had a police officer here, he would probably tell you that they spend a lot of time in emergency departments with persons who are suffering from mental disorders. They don't know what to do with them and it keeps them from being out there policing. We are not discussing that specific issue, though; we are looking at the more general concern, where the mental illness, however defined, has contributed to the offence.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

No, I understand that.

I'm fairly familiar with the operation of the drug treatment courts. We have a very functional one operating in Edmonton that I visit from time to time. I see that your proposed amendment is crafted similarly to subclause 43(1). But the difficulty I'm having, number one, is with infrastructure. The drug treatment courts exist. They don't exist everywhere but they exist in many jurisdictions. They monitor an individual over the course of, usually, 18 to 24 months, to ensure that the individual completes drug treatment and rehab successfully, and then they suspend the sentence.

I have two questions. I know mental health courts exist, but they're assessment courts, not monitoring courts. In the absence of mental health courts that do monitoring, how would this work? Second, an individual can come to court and testify that a person has been successfully treated for his or her addiction. I don't know that this can be done in any reasonable length of time with respect to a mental health issue such as you're describing.

[William Trudell]

In relation to the mental health courts, they do exist and they're growing throughout the country. Some mental health court provisions have monitoring, not just assessments. Toronto is a good example of a place with mental health courts that continue with monitoring. These are being introduced across the country. I understand that Manitoba now has one; I think B.C. has one; Alberta has one. The infrastructure is starting to develop because we're recognizing the problem. With the cooperation of the provincial governments, if something is important, we'll make sure—