Justice Committee on May 1st, 2018

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

—the resources simply aren't there to do it.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Mr. MacGregor.

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

I'll continue on the same line of questioning as Mr. Cooper.

The existing text of subsection 721(3) states that:

Unless otherwise specified by the court, the report must, wherever possible, contain information on the following matters:

Then we have the “age, maturity, character, behaviour, attitude and willingness to make amends”, and now we're adding mental health.

I think, and correct me if I'm wrong, the words “wherever possible” allow you some leeway whereby you try your best efforts.

Who ultimately makes the final call on the pre-sentence report? Is it the probation officer himself or herself?

Yes?

Okay, thank you.

[Christine Beintema]

That is the wording I was going back to try to find, because I think it was what led to my understanding. I don't think it's as broad; it's where we're able to, because we're dealing with a human being and can only gather as much information as they allow us to have access to.

[The Chair, Liberal, Anthony Housefather]

When you deal with, for example, “the offender’s age, maturity, character, behaviour, attitude and willingness to make amends”, you're not forced to go to any specific expert in the field to make that determination.

[Christine Beintema]

Exactly—whether or not they're 23, if they say they're 23, or....

[The Chair, Liberal, Anthony Housefather]

Right.

If we were to use, as opposed to the current wording of “any mental disorder from which the offender suffers”, perhaps “any aspect of the offender's mental condition that is relevant for sentencing purposes”, would that assist you in terms of limiting the scope of...?

[Christine Beintema]

That's a good question.

[Chris Podolinsky]

With “relevant”, it opens up the question of who determines what's relevant and what's not relevant.

[The Chair, Liberal, Anthony Housefather]

It's the person who's writing the report. It allows you to make a determination as to whether or not the information you have is actually relevant.

[Christine Beintema]

Yes.

[The Chair, Liberal, Anthony Housefather]

Okay. Interesting.

Thank you.

Mr. Fraser.

[Colin Fraser, Liberal, West Nova, NS]

Oh, I was simply going to say what Mr. MacGregor said about “wherever possible”. I thought that was an important point to get their take on.

I think that's my comment.

[The Chair, Liberal, Anthony Housefather]

Perfect.

Does anyone else have any questions? No.

I want to thank this panel of witnesses. Thank you so much for coming before us today. We really appreciate your patience and your explanations.

I'll call a brief recess while our second panel of witnesses gets set up.

[The Chair, Liberal, Anthony Housefather]

Let's begin with our second panel of witnesses.

I am very pleased to welcome, from the Canadian Association of Elizabeth Fry Societies, Ms. Savannah Gentile, Director, Advocacy and Legal Issues; from the Canadian Council of Criminal Defence Lawyers, Mr. Dean Embry, Defence Counsel; and from the John Howard Society of Canada, Ms. Catherine Latimer, Executive Director.

Welcome to all.

Ms. Gentile, the floor is yours.

[Savannah Gentile, Director, Advocacy and Legal Issues, Canadian Association of Elizabeth Fry Societies]

Thank you.

I would like to begin by acknowledging that we have the honour and privilege today of meeting on the unceded traditional territory of the Algonquin nation.

Thank you for inviting our organization to speak today on Bill C-375. I'm the director of advocacy and legal issues with the Canadian Association of Elizabeth Fry Societies, and I regularly visit the prisons for women across Canada with our regional advocate teams.

CAEFS has extensive experience advancing the equality rights of women whose behaviour is or is thought to be criminalized, and a depth of knowledge concerning the interactions of such women with the legal system. CAEFS has a substantial interest in ensuring the criminal justice system operates fairly with respect to women, and that the perspective and experience of women, in particular indigenous women, are represented in its design and operation.

My remarks today are born out of my experience working closely with women at CAEFS and whom our 24 local EFrys serve. I'll do my best to do justice to the experiences of these women and to identify the issues they have raised with me.

The numbers of women in prison with mental disabilities continues to rise. Indeed, with the majority of the female prison population identified as experiencing mental health issues, it appears prisons are becoming the default option for mental health intervention. This pattern persists despite the common practice in many jurisdictions to include mental health information in pre-sentence reports. As such, it is CAEFS's position that formalizing this practice into law does not go far enough. It will not reverse or even make a dent in the current practice of incarcerating women with mental disabilities, and it will not lead to their compassionate care.

In fact, there is a risk of which there is growing evidence that women may be sentenced to prison terms because of the false perception that appropriate counselling services are available in prison. In CAEFS's experience, women sometimes receive federal sentences rather than provincial sentences because of the misconception that they will have more access to rehabilitative programming at the federal level.

This pattern is exacerbated by the gaps in mental health services in the community and the unwillingness on the part of some community-based services to accept criminalized women. We need to work on changing this.

The fact that prisons have become the accepted placements for women with mental disabilities is deeply problematic. CSC's response to women's mental health behaviour is overwhelmingly security driven and damaging. Incarcerated women who need quality mental health care end up receiving punishment in its place. It is CAEFS's position that this substitution is unacceptable in Canada.

When prison officials adopt counselling services like those seen in community-based programs, they often lack a gender, race, and class analysis of women's experiences and needs, and become part of the punitive regime. This is a mistake. A good example of this is the heavy reliance by CSC on cognitive behavioural therapy, a technique that is not meant to address past issues or provide supportive counselling.

For most women in prison, mental health problems and their occurrence, for that matter, are intractably linked to a lifetime of being subjected to poverty, systemic racism, and physical and/or sexual abuse. Within prison, women are frequently punished for responses to trauma, which are perceived by CSC as simply bad behaviour. In too many cases, CSC's approach to mental health can be deadly. For example, current CSC policy prescribes that prisoners at risk of self-injury or suicide be placed in a segregation cell on what they call mental health observation. It's segregation by another name.

CSC's position that segregation is a status and not a place, and that individuals on mental health observation are not in segregation, demonstrates its inability to recognize that confinement of this kind escalates women's distress and can lead—and has led—to further and more lethal forms of self-harm and suicide attempts. The jury at the Ashley Smith inquest made two concrete recommendations that had the potential to lead to significant changes in CSC's approach to self-injury back in 2009. Both were rejected by CSC.

In 2016, Terry Baker committed suicide while under mental health observation in a segregation cell at the Grand Valley Prison for women. Just days prior to her death, Ms. Baker had been bound to her bed for a prolonged period of time, which is another common practice used on women at risk of self-harming.

CSC has been on the same trajectory for decades, without any signs of real change, despite several reports, commissions, inquests, and recommendations to support change. This trajectory, which is security-driven, discriminatory, and harmful, is antithetical to the treatment of mental health issues. CSC's classification scheme confines indigenous women and women with mental health problems in maximum security and segregation because of their histories, not in spite of them.

Unemployment, lack of education, family instability, and homelessness prior to incarceration all lead to higher ratings on the custody rating scale, a tool that was developed over 25 years ago based on a sample of white male prisoners, which results in overly high classifications when used on women. This has been reported on for decades. Women's needs, especially those with mental disabilities, are translated to risks. Maximum security is a form of segregation that separates women with complex needs from the general population and therefore, from programming, meaningful work opportunities, family visits, and important mental health supports. In short, placement in maximum security greatly diminishes these women's chances of obtaining parole and successfully reintegrating into the general population and ultimately, into their communities.

The following are recommendations that, unlike the current bill, could amount to real and significant changes to the circumstances of women with mental disabilities.

First, we could support the UN special rapporteur on violence against women recommendation that preference be given “in every case, to alternatives to imprisonment for prisoners with disabling mental health by utilizing [section 29 of the CCRA] to transfer prisoners to mental health services, facilities, or psychiatric hospitals.” We've reported on this before. There are currently only two mental health beds designated for women.

In the meantime, while women with mental disabilities remain incarcerated, we should transfer the responsibility for the health care, including for mental health, of prisoners from public safety to the ministry of health, as has been done in British Columbia, Alberta, and Nova Scotia.

We should legislate an absolute ban on the use of solitary confinement; segregation, including maximum security in women's prisons; medical observation; mental observation; and all other related forms of isolation of incarcerated young women and women with mental health issues. This is something that has been supported by the special rapporteur on torture.

We should create a mechanism for the external judicial oversight of CSC and specifically, in relation to decisions regarding segregation placements, placement on mental health observation, and any other forms of isolation and the use of physical restraints, like Pinel restraints.

We should create a mechanism through which judges can revisit the sentences they impose if legalities, gross mismanagement, or unfairness in the administration of a sentence renders that sentence harsher than that imposed by the court. A reduction of the period of imprisonment may be granted to reflect that the punishment administered was more punitive than the one intended. That's a recommendation coming out of the 1996 Arbour report.

Overall, we hope that you recognize that the relatively low number of women in prison as compared to men is an opportunity to innovate, rather than to ignore. Women prisoners, as a group, are low risk, and the potential gains from progressive and substantive changes to the law for this group, and for their families and communities, could be immeasurable.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

While I appreciate all of the comments, this is really about Bill C-375 and this committee cannot go beyond Bill C-375 and can only make amendments to what is before us. I'd appreciate it if witnesses would stick to the scope of the current bill because anything otherwise is not what we're actually here to talk about. You may get some questions, but they will be about Bill C-375.

[Savannah Gentile]

I appreciate that, but I think it's still important to provide the context within which this bill is going to operate.

[The Chair, Liberal, Anthony Housefather]

I understand.

Mr. Embry, go ahead.

[Dean Embry, Defence Counsel, Canadian Council of Criminal Defence Lawyers]

Thank you, and good afternoon.

The Canadian Council of Criminal Defence Lawyers, or CCCDL, was formed in 1992. It was born out of a realization that there was no truly national voice for criminal defence lawyers. To fill this gap, the CCCDL was established as a council with board members from coast to coast and the north, so a national perspective could be generated and shared with legislators.

The CCCDL has been appearing before and consulting with the House and Senate committees since its inception. As I'm sure many of you are aware, the CCCDL is always grateful for the opportunity to participate and share its perspective. On behalf of the CCCDL and myself, I thank you for the opportunity to speak to you today.

As for myself, I'm a criminal defence lawyer with a practice in the GTA, and 90% of my practice is at the trial level, which unfortunately, from time to time includes sentencing when things go wrong for me and my client. Those sentencing proceedings often have pre-sentence reports. Further, a large percentage of my clients—probably the majority—suffer from major mental illness. I represent individuals with major mental disorders, with charges ranging from theft and simple assault to homicide.

In recent years I've had the opportunity to speak at law schools, conferences, and at legal aid training seminars about the intersection between criminal law and mental health. On those occasions, I've always tried to stress that absent considerations regarding an accused's fitness for trial or criminal responsibility, as affected by a mental disorder, an accused struggling with a mental disorder ought to be treated like all other accused.

While the fact that an accused may be suffering from a mental disorder is a fact about the accused, and it may indeed be an important fact, it should never be seen as a central fact. It is from that perspective, and from the perspective of the clients I represent, that I would submit that the proposed legislation, while it appears well-intentioned, is fatally flawed and ought not to be implemented.

Now, I say it is well-intentioned because it is my impression the proposed amendment seeks to draw out mitigating factors that are usually present when an accused suffers from mental illness. I assume it also seeks to enhance the rehabilitative function of sentencing by providing the sentencing judge with the information about mental health care programs that may assist the accused. Both of these are obviously laudable goals, and defence counsels welcome both of them.

That said, there are two major issues that are, in my view, insurmountable. The first is privacy issues and the second is serious practical concerns.

With regard to privacy, there can be no doubt that the information that is the subject of the amendment is private health care information, the disclosure of which is already strictly controlled by both federal and provincial legislation. The various legislative schemes are numerous and, frankly, beyond my area of expertise. That said, I submit that the guiding principle is that the personal health information ought not be disclosed except in exceptional circumstances or when it has been shown that such disclosure is absolutely necessary.

In contrast, this amendment would see the disclosure of clients' personal medical information as a matter of course. It would compel the parole officers, who we saw today, to inquire into and document an individual's mental health status anytime someone is found guilty of a criminal offence and a pre-sentence report is generated. I note that ordering a pre-sentence report is mandatory if a party requests one. Therefore, the crown of the court could, in effect, demand this information be disclosed, without having to provide any additional information or justification.

I also note that mandating this information goes beyond simply asking the accused, as I am sure we did hear today. While compiling a pre-sentence report, parole officers will seek input from collateral sources. That raises the spectre of parole officers asking family members, or even medical practitioners, about the offender's private medical information, or indeed seeking it out at treatment facilities or hospitals.

Aside from the fact that the information of this kind is subject to an extremely high privacy interest, privacy concerns in this area are especially acute for two reasons. Making this information part of a pre-sentence report would make it part of the public record. Once completed and filed, this information would be available to the public, to anyone who sought it.

In contrast, in my experience, it is possible, as defence counsel, to bring an accused's mental health status to the attention of the court, and therefore accrue the appropriate consideration without making it part of the paper record, or as an exhibit. For example, I've simply informed the court of the client's mental health issues, or read from a doctor's or expert's report, without filing that as an exhibit. In doing so, a client's private health information is exposed only insofar as it needs to be.

Of course, a very resourceful person could order the transcript of the proceeding, but that is far harder and far less likely to happen than someone simply ordering or copying the exhibits. Again, this is highly sensitive and private information, and ought not to be made public as a matter of course.

This brings me to the second major policy concern, which is that in some cases there is a nexus between an offender's mental health difficulties, but in many cases there isn't.

Today, I'm reading prepared remarks, but when I'm not, I often stutter because I have a stutter, which, interestingly, is a mental health disorder listed in the DSM, the Diagnostic and Statistical Manual of Mental Disorders. If, heaven forbid, one day I were found guilty of an offence, would my stutter be recorded, and if so, for what purpose?

That is sort of a light example, but what if someone who suffers from anorexia is found guilty of a fraud-related offence, or if an individual with post-traumatic stress disorder, stemming from a historical sexual assault, is found guilty of impaired driving? Such disorders are deeply private and have nothing to do with the offence the offender is found guilty of, but they would be publicly disclosed anyway, to the horror of the accused and to the benefit of no one.

The proposed amendment does not allow for any distinction between a mental disorder that is related to the offence and one that isn't. It simply mandates that all mental disorders must be listed. Parenthetically, I'll also mention, strictly from a criminal defence perspective, there are some mental disorders the disclosure of which does not assist the accused. Disorders such as borderline personality disorder or psychopathy rarely garner sympathy from the bench and run the risk of attracting a higher sentence than an offender may receive if it were not disclosed. Again, such disorders may be completely unrelated to the offence.

In my submission, the problem with the amendment is that it treats the mental disorder to be as central to a person as their age, maturity, character, behaviour, and attitude, which of course is wrong. With regard to practical concerns, in my experience, a large number of offenders before the court who suffer from mental disorders are, for all intents and purposes, undiagnosed. That could either be through a lack of assisted medical care or due to the fact that many offenders come into the system when their mental disorder manifests.

A similar problem, as I alluded to earlier, is that many individuals who suffer from a mental disorder will not identify as such, either to avoid the stigma of mental illness or, more commonly, because they truly don't believe they have a mental disorder, so it may be obvious to everyone in the room that there's a mental disorder at work, but the offender won't confirm it or even agree. As I think the parole officers made clear, they are simply not equipped to make a diagnosis. This is especially so when even psychiatrists have difficulty making differential diagnoses.

In effect, the amendment could lead to an assessment being ordered and made, which, in my submission, would be hugely problematic. Forensic psychiatrists are spread thin all across the country as it is, and the addition of so many new, necessary assessments would likely be unworkable.

Further, if an offender had to wait for an assessment prior to sentencing, it could have unnecessary delays. As we know from my earlier discussion, delay generally is a concern in the justice system, but is especially concerning when an offender is in custody. One could easily imagine a situation where an individual suffering from mental illness is arrested and denied bail, and then pleads guilty. A so-called stand down pre-sentence report already takes up to four weeks to complete, and all the time the offender will be in custody. An additional requirement of mental health information would extend the time needed for such reports, even if the mental health issue played no part in the offence.

Finally, for those two reasons, I think the amendment is flawed, but on a positive note, I submit that the amendment is largely unnecessary. Although not explicit in the code, the fact that mental illness plays an important role in sentencing has already been noted by the court. In R. v. Ellis, the Ontario Court of Appeal said:

There is no doubt that an offender's mental illness is a factor to be taken into account in sentencing. Where mental illness plays a role in the commission of the offence, the offender's culpability may be diminished...

In my submission, what's missing from the amendment is that consent and relevance to the offence being sentenced are the key concepts that underlie the existing law. In my submission, defence counsel, in consultation with their clients, are in the best position to assess whether they wish to make their mental health status an issue. Defence counsel already have a duty to raise the issue if relevant, if it benefits their client, and only if their client consents. There are also cases that interpret the pre-existing sentence report provisions as authority for the court to order psychiatric assessments as part of the pre-sentence process.

In Nunavut, there was a case called R. v. Gibbons. I was following some Alberta, B.C., and Ontario decisions, and the law, as I understand it, is that an assessment can be ordered if it assists the court in determining the sentence for the offence being sentenced. The assessment has to be relevant.

The court can order an assessment without the accused's consent, but the accused cannot be compelled to participate—so the accused can just say, “I don't want anything to do with this”—and thoroughly, the order would be made following argument of the issue, and not simply as a matter of law.

Again, consent and relevance to the offence must be prerequisites. From that point of view, it is possible that the amendment be rewritten to include consent relevance, but then that would just duplicate the existing common law and therefore put us no further ahead.

Those are my submissions, and I thank you again.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Ms. Latimer.

[Catherine Latimer, Executive Director, John Howard Society of Canada]

Thank you. I would like to express my appreciation for your inviting the John Howard Society to share our concerns and perspective on Bill C-375.

As many of you know, the John Howard Societies are charities providing services in more than 60 communities across Canada, and we are all committed to effective, just, and humane responses to the causes and consequences of crime.

The John Howard Society has been long concerned about those with mental illnesses who are involved in the criminal justice system. Too often, people default into the criminal justice system because needed services in the community are unavailable and alternatives are not in place. The end result is that we end up punishing the mentally ill rather than treating them.

I share the perspective of Savannah that correctional services or correctional institutions are not well placed to deal with people with serious mental health issues. I therefore see some hope that Bill C-375, if properly implemented, could be an advantage in keeping people who do not need to be in the criminal justice system out of it.

What the bill does, as you know—and it's a nice short bill, the kind I like—is suggest that any mental disorder from which an offender suffers as well as any mental health care program available to him or her should be noted in a pre-sentence report. This amendment, I think, would really help sentencing judges become more aware and take note of the mental health issues and programs that might be available to assist.

If an individual is about to be sentenced, he or she will have been convicted, and so a finding that the accused was not criminally responsible because of a mental disorder will not have been made. NCR is a very low bar, and many people who face very serious mental health issues will find themselves being sentenced in the criminal justice system. The fact that they are at the sentencing stage and have been found to be criminally responsible—or not found not to be criminally responsible—does not relieve us of the likelihood that someone with significant mental issues is about to come into the criminal justice system.

The sentencing judge really has two important determinations to make. One is the seriousness of the offence and the degree of responsibility of the perpetrator when assessing the quantum of penalty. The second issue they have to deal with is what sentencing option should be imposed in order to hold the person accountable in the proportionate amount.

I'm easy as to whether it comes in a pre-sentence report or, in the youth justice system, conferencing that would keep it out of a formal record and the information be available to the judge, but if that information were available, it could really help individuals who are suffering from mental health issues take a look at the extent to which they are morally blameworthy for the offence, if they have serious mental health issues. The more incapable the mental illness makes individuals of understanding the nature and consequences of their criminal behaviour or appreciating that it is wrong, the more the quantum of the penalty is appropriately mitigated.

In my experience, some people who find themselves in the formal correctional system are completely disoriented as to time and place. They are so badly riddled with senile dementia that they have no idea why they're in prison or what happened that led them to be there. It is quite conceivable that this affliction was present at the time they committed their offence and at the time of sentencing and that, whatever is currently available to sentencing judges now, this was not picked up.

We could have a flag of some sort that reinforces that if the person is not aware of the consequences of his or her behaviour, that should be taken into account in mitigating the sentence.

The other thing that would really help is trying to figure out the appropriate sentencing option for someone who is criminally responsible but suffering from a mental health problem.

In my experience, there are some mental health conditions that predispose people to commit breaches. If you gave them a probation order, they would breach the order, because if they're suffering from fetal alcohol spectrum disorder or other brain injuries, they cannot understand causality in the way that the criminal justice system requires them to understand causality to avoid breaches.

It is thus important, I think, when assessing whether there should be a custodial penalty or a community-based penalty as your sentencing option or what the nature of the sentencing options should be, to have a clear understanding of the mental health condition and as to whether the sentence being imposed is one the prisoner is capable of discharging without attracting further breaches and other problems with the criminal justice system.

I take Mr. Embry's point that the information needs to be relevant and that it's not fair to the individual being sentenced for incidental information about his mental health issues to be placed on the public record. I think, though, that if the provision of the requisite information were done in a way such that the individual is consenting and the information is relevant to the offence, it could be really beneficial in ensuring that the penalties being imposed and the sentences being rendered have a better chance of being just, effective, and humane, taking into account the moral turpitude of the individual and the type of sentencing option that the individual can carry out.

We believe that valid consent is needed for any treatment option imposed through a criminal sentence and also for soliciting that information. I take the point that there continues to be significant stigma against those with mental health issues and that in correctional services and other agencies, identifying mental health problems can be understood as an enhanced risk factor and operate to the detriment of the individual who reveals it. We think, however, that if there were ways to do it in a manner that helps the sentencing judge craft a sentence that is fair, just, and appropriate, there is a reason to proceed with Bill C-375.

In sum, the inclusion of mental health information in pre-sentence reports is an important step in dealing with the mental health crisis in our prisons. It will allow sentencing judges to be better informed about mental illness and be an important tool in the promotion of just, effective, and humane sentences. For that reason we would like to see Bill C-375 proceed.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you. We appreciate the testimony. Now we're going to go to questions.

We're going to start with Mr. Cooper.

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

I'm going to begin with a question to Mr. Embry.

In the previous panel we heard from Ontario probation officers, and you practise in the province of Ontario. They made the argument that what is in this bill is something that is basically already done by probation officers in the province of Ontario; that this would merely codify the existing practice.

I wonder whether you're able to comment on that.

[Dean Embry]

I think it's true; I think mental health information finds its way into pre-sentence reports, but finds its way into them on consent. Defence counsel will tell their client that this is something to tell the probation officer, or the probation officer may be alive to it.

Adding it as something that is mandatory, that has to be in the report, however, makes the case very different. Now it's a sort of voluntary thing that could be put in, but putting it into the code would make it something that has to be put into the report.