Justice Committee on May 1st, 2018

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

It would be your interpretation of the bill, then, that if this were included in the Criminal Code, consent would no longer be the key factor in determining this. We would basically have probation officers who, as a result of the amended wording of the section, would have to go out and more or less try to gather as much information as possible, whether there was consent or no consent.

[Dean Embry]

Yes. I think the problem is in the way it happens on the ground. There are many times that someone will plead guilty and say, I did x, y, or z, and that's all the judge knows. Then the judge says, this person is found guilty of these offences; then they go away for the pre-sentence report and come back for sentencing.

At that stage, the probation officers are really in a wide-open field, with no guidance as to what they're supposed to be doing other than what's in their policy. They wouldn't know what's relevant to the offence, they wouldn't know how to advise on consent, they would just have to start compiling that information. It would be very difficult.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Ms. Latimer, you indicated your general support for the bill, subject to relevancy and consent. Mr. Embry in his testimony cited, among other things, the Ellis decision and some case law and so on. From the standpoint of relevancy and consent, what do you say to his point that it's unnecessary or that it's duplicative in a best-case scenario, in his interpretation of the bill?

[Catherine Latimer]

I would look at the results, which are a huge number of people defaulting into the criminal justice system with significant mental health issues. I'm not talking about anxiety issues or some of the more minor issues in the DSM-IV. These people are not oriented to their environment, and they're not capable of.... How they got over the NCR issue is a mystery, but they're certainly in trouble when they get into the criminal justice system. I think if there's anything that can flag that....

Some of the ones who are the most seriously mentally ill who come into the federal corrections system have represented themselves. It is pretty clear, I would think, to everyone in the courtroom, that there are some significant mental health issues at play that have not been picked up, I don't think, in an appropriate way.

If all this bill did was highlight that these issues need to be made known to the sentencing judge when they're relevant to the offence at sentencing, that would be key. That would be a big step.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Finally, Mr. Embry, do you have any comments in response to what Ms. Latimer just stated?

[Dean Embry]

I think it's true that there are too many people who have mental health issues who end up in custody, but the answer isn't to then extract this mental health information from them. The problem with people who sort of duck under the NCR system is that once they're in that system, they could be hospitalized. I have clients who've been hospitalized for a decade for theft. Once they're in there, it's hard to get out, so a lot of individuals choose not to go that route, even though they probably are NCR, and they end up here.

What I'm trying to say is that it's up to the accused. If the accused want that mental health help, they should volunteer to get it, but if they don't want it and just want to do their sentences, they should be allowed to do that too, because again, it's their health.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Mr. Fraser.

[Colin Fraser, Liberal, West Nova, NS]

Thank you, Mr. Chair, and thank you all very much for being here and for sharing your knowledge on this important topic.

Ms. Latimer, do you think right now there are individuals whose relevant mental health conditions are not being taken into account in sentencing that this could address?

[Catherine Latimer]

I believe so. As I pointed out, the ones who I think have really slipped through the cracks are the ones who are self-representing and are completely disoriented. It's awkward for everyone in the process. If there were a pre-sentence report that indicated even what was evident at the proceedings, which was that the person seemed to have some significant mental health issues, it would inform the sentencing process in a better way.

I also think that there should be, and it would be nice if it could be attached to Bill C-375, sort of a fitness test. You may not be fit, you may not have the cognition or the mental capacity, to actually serve a federal sentence or a sentence in a custodial facility. People with mental illness in a custodial facility are often bullied. They can't follow the instructions. They're often subject to administrative segregation and other disciplinary measures by the correctional system, and some end up being killed in the correctional system. A lot of it has to do with the disjuncture between their mental health and their capacity to serve the sentence.

[Colin Fraser, Liberal, West Nova, NS]

Would you say, as well, that it's important to ensure that if offenders are serving a sentence in the community on a conditional sentence order, for example, that taken into account are the reasonable conditions for them to access the services they're consenting to, or whatever, to help them rehabilitate so that they don't reoffend? Do you see that as an important part of informing the court of all the relevant mental health conditions they may be under to craft that type of sentence?

[Catherine Latimer]

Yes. Certainly the John Howard believes that individuals need to consent to treatment and therapy. If people consented, and it was part of their terms of release that they had to keep on their anti-psychotic drugs, it would be very important that they respected that while they were in the community, to ensure appropriate community safety, if there were some suggestion that when off their drugs, they presented a danger.

[Colin Fraser, Liberal, West Nova, NS]

Thank you.

Mr. Embry, thanks very much for your interesting remarks. I picked up on what you were saying about the nexus between a mental health condition and the offence itself. If words were added or modified in this bill to say “information relevant to sentencing”, do you think that would solve the problem, if we were able to identify such information?

[Dean Embry]

I don't think it would, because it's the probation officers who have to make that call when collecting it. How would they go about doing so? They know the person has been convicted of whatever offence they've been found guilty of, and they're going from there when collecting information. Then it finds its way into the report, and the report goes to the judge and becomes an exhibit.

With the law as it is now, the crown or the court would have to say there's something apparently wrong, that there's a mental health issue that should be sought out. Then there's a hearing about that. Then an assessment is made.

[Colin Fraser, Liberal, West Nova, NS]

Isn't that already happening now? I know what we heard from the probation officers earlier. These sorts of judgment call are being made by probation officers all the time, about what information is relevant. I doubt very much that pre-sentence reports nowadays would contain irrelevant information about all kinds of things to be determined by the judge.

I suppose there are examples in which that's not true, but information relevant to the person's mental health condition, for example, is already in most pre-sentence reports, if it's relevant.

They can identify or pinpoint whether or not it is relevant to sentencing, can't they?

[Dean Embry]

It's such a difficult call. When coming up with examples, you say that if someone has an anxiety disorder and commits a fraud offence, it might be related. If someone has PTSD and is driving drunk, it might be related, because of their stress and their drinking.

The line between what is related to the offence and what isn't is difficult for anyone. I think it would be incredibly difficult for front-line probation officers to draw with such little information.

[Colin Fraser, Liberal, West Nova, NS]

Right now, it's up to the defence. Implied in that, of course, is that the accused or the offender is consenting to the information's being made known to the court. If the accused is not willing to provide that information in an interview or whatever with the probation officer, then it doesn't become available. Obviously there are confidentiality requirements or obligations for any professional to whom they might be asking questions.

Don't you think that the terminology in the Criminal Code saying “wherever possible” limits the obligation upon the probation officer to go beyond whatever the person is consenting to?

[Dean Embry]

It would, if it were interpreted that way. Then there would have to be something during the interview about the probation officer's getting informed consent, saying, “You don't have to tell me anything about this.”

The problem at that point is that you have people who, as Ms. Latimer points out, are either unfit or mentally unwell, so they don't understand even where they are. How do you get informed consent from an individual in that position?

[Colin Fraser, Liberal, West Nova, NS]

Ms. Gentile, do you support this bill?

[Savannah Gentile]

I don't think the bill goes far enough. I don't think it's actually going to lead to any material change for the people it is seeking to change—

[Colin Fraser, Liberal, West Nova, NS]

I understand there may be other things, but would you rather this bill pass or not pass?

[Savannah Gentile]

Without some of those features built in around consent and relevance, it's limited. I also think that once that information is obtained, there's a gross misunderstanding of how to use the information to push for alternatives, say, to incarceration where those are appropriate.

We've seen this happen with the Gladue sentencing factors. They haven't led to—

[Colin Fraser, Liberal, West Nova, NS]

If you were a member of Parliament, would you vote in favour of this bill or not?

[Savannah Gentile]

I would have to say that I would not vote in favour of it.

[Colin Fraser, Liberal, West Nova, NS]

Okay, thank you.

[The Chair, Liberal, Anthony Housefather]

Mr. MacGregor.