Mr. Speaker, it has been a good debate here on a Friday and I appreciate the time given to me by the House earlier with respect to my question of privilege.
I am rising now to speak on behalf of the Conservative Party with respect to Bill C-375 brought forward by the Liberal MP for Richmond Hill with respect to amending the Criminal Code. It is a short bill, because it is really trying to insert one element into the pre-sentence report. I will speak for a few moments about the bill's intention, from what I can find, and then some of the concerns we have with it essentially because it is vague and causes us some concern, which I will get into.
Specifically, the goal of the bill is to amend the pre-sentence report prepared under the auspices of the Criminal Code under subsection 721(3). It wants to insert a new ground for the pre-sentence report, which would be:
(a.1) any mental disorder from which the offender suffers as well as any mental health care programs available to them;
The MP for Richmond Hill with respect to introducing the bill has said that he wants it to include information on families with a history of mental illness to ensure that they are afforded care. We all agree with the afforded care aspect of this.
Mental health conditions and mental health conditions that may be involved in someone's criminal behaviour are serious but there also must be compassion. There is compassion with respect to treatment and making health care programs available and that sort of thing. Generally, our criminal justice system does that.
Various prisoner ombudsmen and people like that have highlighted that we do not have enough mental health resources within our criminal justice system, but the bill is not about that. The bill is about basically just highlighting mental health programming. I agree with that. That is reasonable. It is already being done now but perhaps it is not being done well enough. This legislation would insert that availability into the pre-sentence report. If the person is sentenced, that availability comes later but that is the part of this private member's legislation that we generally feel we are aligned with.
The trouble with the bill is that because it is vague, maybe intentionally so, it seems like mental health might be an aspect of every sentencing decision that a judge looks at in a criminal court context. This being only a one-line bill, it is hard for us to determine. There has not been much public discussion on this, so it is hard for us to determine if that is the case. That concerns me and I will get into why shortly.
Right now what is in the pre-sentence report under subsection 721(3) of the Criminal Code is age, character, maturity, history, including criminal history, and the remorse or willingness to make amends. These sorts of things are the typical aspects that go into the pre-sentence report that a judge will consider before rendering a sentence, after a finding of guilt.
The reference to mental health in a vague sense here, “any mental health disorder from which the offender suffers”, does not actually go to intent or mens rea or actus reus, the fundamentals of criminal law. Was there a guilty mind? Was there a guilty act?
Is the member for Richmond Hill suggesting that even property crimes or things like that should consider all mental health aspects? It is not clear enough. If someone was depressed that would not necessarily mean he or she did not understand, that he or she did not have the mens rea to commit a theft. What is worse is when we start getting into crimes against other people. How does this relate to mental health impacting a decision when violence, for example, is committed against another citizen. This is why we have some concerns with it being vague.
Is the bill's intention to make this a requirement for consideration in all aspects of mental health or is it meant to be part of the general discussion on not criminally responsible due to mental disorder? That is already firmly established and I will talk about that in a moment.
I always try to remind people when we talk about criminal justice issues that rehabilitation, treatment, and all of those things are very important, and they have a place in our criminal justice system. However, what often is the difference in the House of Commons is that the Liberals or the NDP put rehabilitation of the offender always first, and in some cases, it is the only consideration with respect to sentencing and incarceration, whereas I find the Conservatives look at all aspects of the principles of sentencing an offender.
Remember, this is after a finding of guilt, regardless of what the underlying Criminal Code provision is. I refer the member and anyone following this debate to section 718 of the Criminal Code, which is our principles of sentencing. This is something we learn in law school, because it is kind of the foundation of our criminal justice system. While some people, advocates and people on the left, talk almost exclusively about rehabilitation, what are the principles of sentencing? What are the foundations of our criminal justice system? I will read them out.
The first is denunciation of unlawful conduct. The second is deterrence. The third is the separation of the offender and protection of society. The fourth is the assistance in the rehabilitation of the offender, which is the rehabilitation aspect. The fifth is reparation for criminal conduct on society or in some cases the victim. Finally, the last principle of sentencing in our Criminal Code is the promotion of a sense of responsibility.
I think that final one is probably the most important, alongside protection of the public in cases where there is violence. Certainly in cases where there is no violence, rehabilitation should probably be a key priority, especially for young people, and our system has that already. However, when we talk about cases that involve violence, that is when we think protection of the public, denunciation of conduct, promotion of a sense of responsibility, deterrence, and all of those other factors should take priority. I think average Canadians agree with that.
What is not clear about the bill is how it relates to capacity decisions of an offender. In pre-sentencing, is any mental health condition just part of a “not criminally responsible” discussion, because there is already provision for that, or is it just meant to be a consideration for later treatment? In the bill there is treatment and the consideration of historical conditions, and we see a lot of talk in society today now about trauma being intergenerational. Is intergenerational trauma somehow a consideration at pre-sentencing, meaning somebody should not receive a sentence appropriate because of trauma committed in the past? When there is a very light, vague bill, it is not clear for us to understand.
We already have a not criminally responsible provision for mental disorder where somebody does not have the capacity to understand, the mens rea or the mental intention of their act. They committed the act, the actus reus, which is one part of a criminal act. The mens rea or the mental intention is the other. We already have not criminally responsible.
In the Winko decision in 1999, the Supreme Court said that within that construct, if there is not capacity, then security of the public, if the offender is violent, is still a key priority. We talk about this often, because there are cases like the Schoenborn case in Merritt, B.C., where the public loses faith in the criminal justice system because they see NCR cases not having the protection of the public and other aspects of criminal sentencing principles applied. We know of the Vincent Li case in Manitoba and others. These erode public confidence in our system.
Our concern from the Conservative Party is that the bill is so vague. If this is just about making sure that treatment options are discussed while the person is incarcerated or serving a conditional sentence or something, that is one thing. However, with the consideration of historical mental illness and this sort of vague notion, we do not want to see a situation where there is a violent crime committed and the history of intergenerational trauma or depression would somehow be an excuse for the mens rea. Mental health conditions often will mean that people do have the capacity. I talk about veterans and mental health all the time. It is an injury in some cases, but that person still has the capacity.
Therefore, the MP for Richmond Hill has to shed a little more light on this to address these reasonable concerns.