Justice Committee on May 1st, 2018

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Thank you, Chair.

Ms. Latimer, let me start with you. The John Howard Society of Canada is countrywide. You have a viewpoint on the way justice is administered in each of the provinces. One thing we always have to take note of as federal legislators is that we may be able to craft amendments to the Criminal Code, but the administration is very much up to the provinces.

This line of questioning has already been covered in a few areas. We've heard in previous testimony that covering mental health disorders in a pre-sentence report is a standard practice already here in Ontario. Given your countrywide viewpoint, what are some of the experiences in other provinces?

Are you supporting this bill because you're worried about the patchwork quilt, and would like to have the same standard right across the country?

[Catherine Latimer]

You're raising a very interesting question. It's somewhat difficult to determine. I know that some provinces are much further advanced on certain issues that would be relevant to sentencing; for example, fetal alcohol spectrum disorder. Some provinces really understand what it does to cognition and capabilities.

I would say there is not a monolithic way in which people are dealing with mental health issues across the country and the way in which they are being recorded or supported in pre-sentence reports. This would help to standardize the practice.

The “wherever possible” gives a considerable amount of room, but what it does is flag that this is an issue you really should be looking at. The probation officer, in the interview with the individual, should be asking them whether there's anything they would like to share about their mental condition or about what they were thinking at the time the offence was committed—things like that—so that they can get some sense at to whether there are, from the offender's perspective, any relevant issues that should be pursued in the pre-sentence report.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Mr. Embry, you've identified two major flaws: the privacy concerns of the accused—or in this case of the offender, because it has happened after a judgment has been delivered—and the practical concerns.

We conducted a study into access to the justice system last year and we know from the extensive testimony and research this committee covered that access to the justice system is still very flawed. You said that it's always a matter of course that the defence should be raising issues of mental health disorders, but we know that some people don't have very adequate legal protection when they're going through the justice system and some have much better.

Couldn't an argument be made that by codifying this requirement we are actually offering some assistance? That's one question.

Is there any way to save this bill as it is written, or are you completely unhappy with it and just wanting it to be done away with?

[Dean Embry]

With regard to your first question, concerning the access to the justice system, I was going to say that.... I don't know whether I'll ever come back here, so if I don't, let me say that if legal aid ever comes across your desks, you should up the legal aid budget, especially for people who suffer from mental health issues. Those are the people who are desperately in need of legal aid and who desperately need their own lawyers. That is part of it: access to justice from that perspective.

The problem, though, is that codifying it codifies it on the opposite side of the adversarial divide. What these individuals need are people who can help them navigate it from their perspective. In the way it's done now in the amendment, it is put in the hands of a probation officer. I think that puts it on the wrong side of things.

Just following from what my friend said, the probation officer isn't even allowed to ask, “What were you thinking at the time of the offence?” At the time they're doing a pre-sentence report they're not supposed to ask that question; they're not supposed to be asking about the offence, because there might be appeals, etc.

That's the other side of it. There needs to be mental health support on their side.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Do you not think there's enough of a safeguard in consent and privacy laws as they currently exist to protect people, if we were to pass this bill?

[Dean Embry]

No, I don't think there is.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

You don't. Okay.

[Dean Embry]

No, and unfortunately, I don't think the bill is savable. I think mental health intervention for people in the system who are mentally ill has to come in at some point, but this is the wrong point. The pre-sentence report is either too late or too early; it's just not where the intervention has to happen.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Thank you.

[The Chair, Liberal, Anthony Housefather]

Ms. Khalid.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Thank you to the witnesses for your testimony today.

I'm trying to clarify something.

Mr. Embry, you've spoken a number of times about the relevance of a mental illness or mental disorder to the crime that has been committed by an offender. But my take on the importance of a judge's knowing the mental illness or mental disorder was that it would impact what kind of sentence the judge would bestow upon this person or this offender.

If somebody is, for example, convicted of fraud but has anorexia, that would hopefully in my opinion impact the way a judge would choose to punish this person who has committed fraud.

Is that a correct analysis of how a pre-sentencing report is read that would include information on a mental disorder?

[Dean Embry]

I think there has to be a nexus between the mental disorder and the offence. If someone has a mental disorder that is difficult to deal with but has nothing to do with the offence, they shouldn't get a lower sentence. They should only get a lower sentence if the mental disorder they were suffering from somehow contributed to the offence or prevented them from being able to avoid committing the offence. That's where there has to be a nexus.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

We're talking basically about providing some sort of support system with respect to mental health for offenders as they are serving their sentences.

Ms. Latimer, if you have any comments to add with respect to that nexus being part of the pre-sentencing report, I would love to hear them.

[Catherine Latimer]

I really think the information about the accused's or the offender's mental health can affect two elements of the judge's sentencing and lead to better sentencing—fairer, just, and more humane sentencing.

The first has to do with whether or not there is some limited moral blameworthiness because they didn't fairly understand the nature of their behaviour and the consequences of it. This goes to the quantum of the penalty: there has to be a direct link between the mental health issue at the time the offence was committed and the quantum of the penalty.

The second element is more general. If you're assessing what would be the best sentencing option, let's say that the person has a brain injury such that they can't process causality. The fact that they have hit someone may not be relevant to the offence, but it might be relevant to what kind of sentence the judge should be imposing, if you actually want the person to be able to comply with the sentence and fulfill its terms and conditions.

It's a bit subtle for me, in that you might want more information when you're looking at the range of sentencing options and saying that this person reacts very badly to confined spaces. Maybe that didn't have anything to do with the offence, but maybe they are going to act out or have real problems if you put them in administrative segregation or some other confined space. This could affect the sentencing judge's determination of what the appropriate sentence should be.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Thank you.

Mr. Embry, how much of an impact does the information on the sentencing report have on the sentencing that judges do?

[Dean Embry]

It can have a great deal of impact, in my experience, and even have impact before then. It's not uncommon that a crown will say, your client pleads guilty, and my position is x or y depending upon what's in the pre-sentencing report. It even goes back into what the crown will suggest for a sentence, and then it impacts the judge. It can have a great deal of impact.

It also is the whole life of the person. I think of what my friend said about how someone who has a brain injury might have a hard time in jail. That impacts it.

Those are the same considerations as when someone has late-stage cancer or some sort of physical abnormality that makes it hard for them to be in jail. I don't think you could legislate and say that a parole officer has to go and get this person's medical record and put it in the pre-sentencing report. That would be inappropriate.

This is exactly the same thing. There's no difference between having cancer and schizophrenia. It's all just health. That's the problem, in my view.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Ms. Latimer, Mr. Embry and Ms. Gentile indicated that they do not support this bill, but you said earlier that you are in favour, with some tweaks, with respect to some of the points Mr. Embry raised about consent and about relevance.

What kinds of amendments would you propose to this bill, if it were to pass through this committee?

[Catherine Latimer]

I think one would be the idea of saying that the information should be relevant to the purposes and principles of sentencing for the accused; that it has to apply to the individual's case. Also, as I indicated I think the individual has to consent to having that information brought forward. There are still lots of reasons they would not want it brought forward.

For us as a society that cares about just and effective sentencing, it is important that the sentence be fit for the individual circumstances. The extent to which people would rather take a tougher penalty because they don't want their mental health status to be factored in is a bit of a challenge.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Thank you. Those are all the questions I have.

[The Chair, Liberal, Anthony Housefather]

Mr. Nicholson.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you all for your testimony here today.

This is a procedural issue. Mr. Embry, you mentioned at one point in your testimony that the mental condition of a person may not be disclosed for one reason or another—either consent isn't given, or it's not discovered. Would this be grounds for an appeal if, after an individual has been sentenced, it were discovered that in fact he or she had some sort of mental condition?

[The Chair, Liberal, Anthony Housefather]

May I just ascertain whether there is unanimous consent to continue, irrespective of the bells?

[Some hon. members]

Agreed.

[The Chair, Liberal, Anthony Housefather]

Please go ahead.

[Dean Embry]

It might be. If it was fresh evidence and wasn't available to anyone beforehand, wasn't discoverable, and they found out after the fact, then it would be grounds for appeal.

Jaser is coming up in the Court of Appeal on the VIA Rail terrorist case. I think in the facts of that case they found out after he was convicted that he was likely unfit, and then he was found fit. A big part of that appeal is going to be dealing with what happens when a mental health thing comes out after the fact.