1st Session, 41st Parliament,

Volume 148, Issue 156

Thursday, April 25, 2013

The Honourable Noël A. Kinsella, Speaker

Controlled Drugs and Substances Act

Criminal Code

Bill to Amend—Second Reading—Debate Adjourned

Hon. Mobina S. B. Jaffer moved second reading of Bill S-216, An Act to amend the Controlled Drugs and Substances Act and the Criminal Code (mental health treatment).

She said: Honourable senators, over the last month I have had the pleasure of exchanging emails with hundreds of Canadians on the subject of mental health treatment for offenders. I wanted to learn more about their concerns, their experiences and their ideas on how to promote human rights, including safety for all Canadians.

One email that I received was from Sheila Pratt of Maple Ridge, British Columbia. Shelia was a primary school teacher for 30 years. She wrote:

At some point during the year, I’d speak with my students about what they wanted to be when they grew up. There were future farmers, nurses, astronauts, doctors, bus drivers, teachers, and many others.

Sheila continued:

I never met a single child who wanted to grow up to be a substance abuser or a drug dealer. Somewhere along the way, someone or something failed them.

Honourable senators, Bill S-216 would create the same provisions for mental health treatment that already exist for drug treatment in the Controlled Drugs and Substances Act and the Criminal Code. In introducing Bill S-216, I am proposing that the criminal justice system address access to mental health treatment in the same way that the criminal justice system addresses access to drug treatment.

The existing drug treatment provisions, found in sections 10(4) and 10(5) of the Controlled Drugs and Substances Act and in section 720(2) of the Criminal Code, provide for the delay of sentencing for drug treatment and, if the Attorney General consents, the waiver of mandatory minimums where the drug treatment has been successfully completed.

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Maintaining consistency between the way that criminal law addresses mental health treatment and the way that it addresses drug treatment makes sense because the criteria and the goals of mental health courts and drug treatment courts are similar. They both emphasize addressing the root cause of the criminal behaviour rather than simply punishing symptoms by incarcerating someone. They are based on the understanding that where convicted persons suffer from mental health or substance abuse issues, jail will not solve the problem.

Senator Runciman, Senator Fraser, Senator White and I have all addressed Senator Runciman’s inquiry on mental health treatment for offenders, and we all touched on the same theme. In responding to Senator Runciman’s inquiry, we clearly identified a need to view mental health needs equally alongside other health needs.

As Senator Runciman wrote in a recent Toronto Sun op-ed:

By failing to provide adequate treatment for mentally ill offenders, our prisons are more dangerous than they need to be, for both staff and inmates, and public safety is at risk, since putting mentally ill inmates back on the street leads to more crime and, tragically, more victims.

To quote the Correctional Investigator of Canada, Mr. Howard Sapers:

Prisons are not hospitals, but some inmates are in fact patients.

Provisions in the Controlled Drugs and Substances Act and in the Criminal Code that address substance abuse by offenders should also extend to offenders’ mental health needs.

Honourable senators, clause 43(2) of Bill C-10, which this Parliament passed only recently, amended the Controlled Drugs and Substances Act to enable the offender to participate in a drug treatment court program approved by the Attorney General. That amendment was designed to take advantage of existing specialized drug treatment courts and services.

Clause 1 of Bill S-216 would amend the same act to enable the offender to participate in a mental health treatment court program approved by the Attorney General. The proposed amendment would also take advantage of existing specialized mental health treatment courts and services.

Mental health courts started to appear in various cities across Canada after drug treatment courts had demonstrated that problem-solving courts had a role to play in our justice system. The first mental health court in Canada was created in Toronto. In the past several years, mental health courts have been established in many different cities across the country.

Mental health courts focus on people whose mental illness was a strong contributor to their being before the criminal court. These courts may offer pretrial diversion for less serious offences or delayed sentencing to allow for treatment or, where the offences committed are more serious, sentences that are tailored to mental health needs, such as a placement for treatment in a mental health facility rather than a jail term.

Mental health courts were developed through the varied and informal responses of local community stakeholders who acted upon the need to create them. Due in part to the administration and delivery of health care services being the responsibility of each province or territory, diverse mental health court models exist.

The Toronto model uses repeated bail appearances, similar to drug treatment courts, where the accused appears before the judge very frequently, and there are court support workers based at the courthouse.

The Ottawa Mental Health Court started without any additional funding, with its partners pooling their resources to create it. The Canadian Mental Health Association provided outreach workers, and the Crown attorney assigned a particular assistant Crown attorney to the cases before the mental health court.

New Brunswick has a model in which the accused person signs on and follows the program to benefit from a specified predetermined outcome.

Yukon has a community wellness court, which deals with individuals affected by alcohol or drug addiction, mental health issues or a cognitive deficiency, including fetal alcohol spectrum disorder.

In mental health courts, Crown attorneys work with staff from participating agencies in deciding on legal outcomes, such as peace bonds under section 810 of the Criminal Code, probation orders or conditional sentences and probation. The sentence will generally be more lenient than what the convicted person would otherwise have received. This incentive process helps to ensure further treatment and monitoring.

Mental health court programs allow people who may not be eligible for diversion due to the serious nature of the offence that they have committed to work toward an improved outcome if they are connected with mental health services.

Honourable senators, Bill C-10, passed during the Second Session of the Thirty-Ninth Parliament, created a provision to allow for the delay of sentencing to enable the offender to attend a treatment program under section 720(2) of the Criminal Code.

Bill S-216 adds an explicit reference to mental health treatment programs, in addition to the addiction treatment and domestic violence counselling programs that are already listed under section 720(2). Just as is the case for drug treatment programs, the mental health treatment program must be approved by the province. This explicit reference to a mental health treatment program could encourage the development of additional mental health treatment programs within the provincially operated treatment systems.

Bill S-216 emphasizes the frequent relationship between drug addictions and mental health disorders and the need to tailor treatment to the specific circumstances of the individual. For example, offenders who have mental health disorders may not be able to manage drug treatment programs and may be better served by mental health court approaches.

Bill S-216 would also allow for mental health treatment that does not fall within pre-approved programs upon the approval of the court and the consent of the Attorney General. It would address situations where mental health courts or approved treatment programs are not available so that improved outcomes do not depend on geography more than they do on the nature of the offence or the convicted person. This provision also provides flexibility to the scheme, as it would capture cases where treatment is being administered by a particular mental health practitioner and consistency of ongoing treatment is preferable.

Requiring the Attorney General’s consent to individual treatment reflects current practices and would help to reassure people that it is not simply a means to escape a mandatory minimum. This proposed amendment provides court-supervised options and flexibility.

Finally, honourable senators, in clause 43(2) of Bill C-10, subsection (5)introduced the following provision on minimum punishment:

If the offender successfully completes a program under subsection (4), —

In other words, a drug treatment program.

— the court is not required to impose the minimum punishment for the offence for which the person was convicted.

Bill S-216 does exactly the same thing for offenders who complete a mental health treatment program. As is the case for existing drug treatment provisions under the Controlled Drugs and Substances Act, by allowing for the waiver of a mandatory minimum sentence, the bill offers an incentive for convicted persons to begin the path toward healing while maintaining society’s interest in penalizing criminal conduct.

Furthermore, the court retains the power to order the incarceration of a convicted person but is provided the discretion to waive the mandatory period of incarceration, just as Bill C-10 allowed for offenders who undergo drug treatment. This flexibility would allow the court to waive a mandatory minimum sentence in order to allow for ongoing treatment.

As is the case for drug treatment under the Controlled Drugs and Substances Act, the discretion of the court to waive the mandatory minimum period of incarceration would only be triggered by the successful completion of mental health treatment. The provisions do not require that the convicted person be cured; the provision as drafted leaves these decisions within the court’s discretion.

Honourable senators, this bill is not revolutionary. It simply builds on an important provision from Bill C-10 that deals with drug treatment. We have drug treatment courts and drug treatment programs and legal provisions to better incorporate these tools into the criminal justice system. We also have mental health treatment courts and mental health treatment programs. We need to ensure that there are adequate legal provisions to better incorporate these tools into the criminal justice system, too.

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Senators Runciman, Fraser, White and I have all spoken about the importance of ensuring that offenders can receive the mental health treatment they need, which will also help to keep Canadians safe. This bill is a natural next step on an issue that all honourable senators recognize matters deeply to all Canadians.

(On motion of Senator Carignan, debate adjourned.)

[Translation]

 

One Response to April 25 2013 Second Reading of Bill S-216 (mental health treatment)

  1. Susan Rankin says:

    I sincerely hope that the Senators will show some wisdom and support your very important amendment

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