Evidence of meeting #93 for Justice and Human Rights in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was illness.
A recording is available from Parliament.
NDP
Alistair MacGregor NDP Cowichan—Malahat—Langford, BC
I am just following up on the two lines of questioning. I think Mr. Nicholson was sort of going down the vein of how the requirement or the addition of this may increase workloads and so on. In previous studies on the state of our justice system, I think we've all realized that there's not a simple fix to this. It has many facets. It involves bringing in more judges and also devoting a lot of resources to the court system.
In the process of coming forward with this bill—and I know you're quite passionate about it and that you have done a lot of consultation—did you consider that the administration of justice is the responsibility of our provincial governments? Have you gotten any feedback officially from provincial governments on what this might do to their administrative burden and so on?
Liberal
Majid Jowhari Liberal Richmond Hill, ON
Specifically on going and getting feedback from the provinces, the answer is no. We consider sentencing to be one piece and looked at the judicial process as a whole. Then we looked at the person moving through our system to the point at which he or she is rehabilitated and integrated back into the community.
We believe that if the system is taxed initially as a result of gathering the extra information and doing extra consulting, this in turn will help in the long term by reducing repeat offences, providing much more effective integration into the community and reducing the number of appeals that could happen.
Overall, I believe that the cost and impact on our system will be reduced, although we may have to make sure that we strengthen certain pieces to ensure that the overall cost, the overall length, and the overall benefit are a lot more—
NDP
Alistair MacGregor NDP Cowichan—Malahat—Langford, BC
Yes, so you may have those up-front costs initially, but if the other employees in the justice system—the probation officers, the sheriffs, the correctional officers themselves—know that someone is suffering from a certain type of disorder, they can have those individual levels of care, and ultimately the system—
Liberal
Majid Jowhari Liberal Richmond Hill, ON
Absolutely. If an individual is suffering from a mental health problem, such as depression or anxiety, and then, due to circumstances, that person gets put into solitary confinement, studies have shown that it may lead to suicide or conflict with officers. This in itself will cause more costs, and it will put a lot more of a burden on the system to be able to handle this. Again, having those provisions available and making sure that all levels during this process have an understanding of the individual's situation and things that need to be considered would, in the long term and overall, not only save money but also improve the person's ability to reintegrate.
Remember, the whole goal is to bring a balance between someone who has committed a wrongdoing and needs to be sentenced and, let's say, punished for that, and making sure that we provide an environment for them to be able to effectively reintegrate back into the community, because we don't want them to re-offend.
NDP
Alistair MacGregor NDP Cowichan—Malahat—Langford, BC
Yes, I think all too often we forget that it is the correctional service. We're trying to correct the behaviour because they are not going to be staying in the institution indefinitely, and we want to make sure that when they are released they have a reintegration that works well.
When you were working with the drafters, was there discussion or debate on the terms “mental disorder” or “mental illness”? Will that have legal repercussions when it's interpreted?
Liberal
Majid Jowhari Liberal Richmond Hill, ON
It's actually quite astute of you to highlight that. Yes, we went back and forth trying to come up with the right terminology, and in my speech, I did intentionally switch back and forth between “mental illnesses” and “mental health issues”. Again, this is a discussion that I'm sure the committee will have, and you're going to hear from other experts. I'm hoping that you'll also hear from the department in relation to the right terminology.
The intent of the bill is not to play with the terminology. At the end of the day, I'll be very happy whether you use “mental health illness”, “mental health issues”, or “mental health challenges”, so long as we provide an opportunity for the individual to really get the programs and services they need to help them reintegrate and recover much faster—that is, as long as that accommodation is made. That's really the purpose.
Liberal
Ron McKinnon Liberal Coquitlam—Port Coquitlam, BC
Thanks, Chair, and thank you, Mr. Jowhari for your bill.
I guess I'm going to follow along on all these lines of questions because they're good questions.
I'm interested in the problem that probation officers will have in determining whether a mental health condition or mental disorder exists, and how to find that out. I don't know if a particular accused might present in an obvious way that he or she is having difficulties. I guess I'm asking how the probation officer will know whether or not to include mental health information and therapy.
Liberal
Majid Jowhari Liberal Richmond Hill, ON
That was a question we also probed. As I indicated, we need to remember that our studies and discussions have shown that in a majority of the cases, either the accused or the court or the judge asks for inclusion in the report the mental health status or mental illness-related issues of the person.
Our goal with this bill is not to identify or prescribe how or where the probation officer should go to collect that information. It's based on the job they're already doing and also jurisdiction. The bill is focused on making sure that we codify a practice that is already in place. In those cases where the probation officer may need training or may need to look into it, I am sure that consideration can be made by the provinces or the court system to handling it.
Liberal
Ron McKinnon Liberal Coquitlam—Port Coquitlam, BC
As you've said, there's nothing in here that says how they're going to get this information, but by requiring that it be provided, it imposes an onus on the probation officer, I believe, to find it.
What tools does a probation officer have to know what the problems might be? If the accused is not interested or willing to come forward with information, I'm not sure how the probation officer will know about it. If he or she knows about it, what action can they take to get this information he is now required to give?
Liberal
Majid Jowhari Liberal Richmond Hill, ON
From my point of view, I need to look at whether there is a legal standing or not.
I would repeat that with the current process, probation officers are already identifying these and have an existing process they go through to identify and seek input from qualified individuals. I don't think the intent of this bill is to specifically say to whom people are to go to or what training or programs they need to be able to have taken to be qualified to seek the mental health status of an individual.
The individual, as part of the whole system, could be trained or could seek support. However, that is my personal point of view.
Liberal
Ron McKinnon Liberal Coquitlam—Port Coquitlam, BC
Would it open a decision to appeal if the information about the accused's mental health was not in the pre-sentencing report, but it was found later that it should have been and that the sentence might have been different otherwise?
Liberal
Majid Jowhari Liberal Richmond Hill, ON
I would focus on the fact that there is a strong case for appeal when the condition is identified, and when the person who is serving the sentence wishes to go back and table an appeal. As far as the impact on the sentencing is concerned, that is not within the scope of this bill. I believe our judges are quite capable of taking them into account, and they would be able to make that decision.
Liberal
Ron McKinnon Liberal Coquitlam—Port Coquitlam, BC
I'm coming at this as a non-lawyer. I don't know how all of this works.
Liberal
Ron McKinnon Liberal Coquitlam—Port Coquitlam, BC
Okay, we're in good company then.
It seems to me that when you make it a requirement require that this be in the report and it's not in the report and a sentence is rendered based on whatever the report contains, this could open a whole new avenue of appeal.
Liberal
Majid Jowhari Liberal Richmond Hill, ON
Unless otherwise specified as being incorporated into the bill, as well as what I've said, it's not mandatory for the person who's accused and is about to be sentenced to voluntarily give that information. It puts the obligation for identifying any mental health or mental illness issues back on the probation officer who is preparing this, to make sure the judge takes all of that into consideration.
Liberal
Ron McKinnon Liberal Coquitlam—Port Coquitlam, BC
It does put the onus on the probation officer, but we don't necessarily have any tools for the probation officer to use to get that information or to drill into the case to find out whether or not it's relevant.
Liberal
Majid Jowhari Liberal Richmond Hill, ON
I go back again to the fact that I mentioned. Our review of this highlighted that a lot of probation officers and judges are already asking that question, so this is simply codifying or standardizing it.
Liberal
The Chair Liberal Anthony Housefather
Now we'll go to some shorter questions, so shorter answers, please, and shorter questions.
Mr. Cooper.
Conservative
Michael Cooper Conservative St. Albert—Edmonton, AB
Thank you, Mr. Jowhari.
I have a couple of quick questions. I'll ask them all, and then you can answer all at once.
First, with respect to Mr. MacGregor's question about the wording of “mental disorder” and “mental illness”, it wasn't quite clear to me from your answer whether there was any significance between why you ultimately chose “mental disorder” over “mental illness”. If you could clarify that, it would be appreciated.
Second, is it always relevant in every case? You say that judges order a report and that the report includes the mental health or mental well-being of the individual who's convicted, but when there is absolutely no evidence that there is a mental health issue, a judge would likely exercise discretion and not order that to be included. I know that your party often talks about leaving it to the discretion of judges to make decisions. Why would we take away that discretion here?
