Evidence of meeting #94 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 information.
A recording is available from Parliament.
Conservative
Rob Nicholson Conservative Niagara Falls, ON
Once this is a mandatory part of the pre-sentence report, and if for whatever reason it were not included, it seems to me there would be grounds for an appeal at some point in time in the future when you discovered that the individual had some mental issues.
Defence Counsel, Canadian Council of Criminal Defence Lawyers
That could be, but the other practical issue is that diagnosis is all over the place. If four doctors see someone, they can give four different diagnoses, so it would be hard to say what was missed.
Conservative
Rob Nicholson Conservative Niagara Falls, ON
I suppose that would be something for the courts, then, to determine at the appeal level.
Defence Counsel, Canadian Council of Criminal Defence Lawyers
Yes.
NDP
Alistair MacGregor NDP Cowichan—Malahat—Langford, BC
This is just a quick question. I want to exhaust all my avenues with this bill.
You raised concerns, Mr. Embry, about the pre-sentence report's becoming part of the public record. I don't know whether this is yet possible, but if we could find language to make this section of the pre-sentence report a separate and confidential report to the judge for the judge's eyes only, would that satisfy some of your concerns?
Defence Counsel, Canadian Council of Criminal Defence Lawyers
Yes, for sure it would.
Liberal
The Chair Liberal Anthony Housefather
I have some tiny questions.
Mr. Embry, are you aware whether, under the Ontario policy that currently exists and that the Probation Officers Association of Ontario was referring to, the Ontario government requires consent from the accused before this information is inserted—as they mentioned, on a regular basis—into the reports?
Defence Counsel, Canadian Council of Criminal Defence Lawyers
I don't know for sure. I think it is required, just through the Ontario Mental Health Act and through PIPEDA and the Privacy Act.
Liberal
The Chair Liberal Anthony Housefather
Were we to simply insert “to the extent that the offender so consents” at the beginning of the phrase “any aspect of the offender's mental health condition that is relevant for sentencing purposes”, that would, from the perspective of what you are saying, address the concern with respect to consent, because then it can only be included if the offender consents.
With respect to sentencing purposes, I agree with Ms. Latimer. If you're talking about sentencing purposes, it's relevant for sentencing purposes if, at the time of the offence, the mental condition triggered or reduced the guilt with respect to the offence or, for the purposes of sentencing, if the offender had some type of mental health condition that requires a different type of sentence. I think they're both included if we clarify that it has to be “relevant for sentencing purposes”.
Would you not agree?
Defence Counsel, Canadian Council of Criminal Defence Lawyers
I agree with the first part, about the consent, but for the second part, about “at the time of the offence”, the Supreme Court has already ruled on it in the case of NCR. No one can bring up NCR other than the accused, unless the person is found guilty and they can raise reasonable grounds to have an assessment.
In the more serious examples, then, it's already in the accused's hands, and I think the court would follow that again in the future for sentencing.
Liberal
The Chair Liberal Anthony Housefather
Thank you so much to all of our witnesses today. We really appreciate having you here.
Given that we have to get to the House for votes, the meeting is adjourned.