2nd Session, 41st Parliament,
Volume 149, Issue 34
Tuesday, February 11, 2014
The Honourable Noël A. Kinsella, Speaker
Controlled Drugs and Substances Act
Bill to Amend—Second Reading—Debate Continued
On the Order:
Resuming debate on the motion of the Honourable Senator Jaffer, seconded by the Honourable Senator Ringuette, for the second reading of Bill S-203, An Act to amend the Controlled Drugs and Substances Act and the Criminal Code (mental health treatment).
Hon. Mobina S. B. Jaffer: Honourable senators, earlier on, I said that when Bill C-10 was in front of us, I had moved for an amendment, and today I am speaking to this bill and I hope you will all support it.
Honourable senators, over the last months, I have had the pleasure of exchanging emails with many Canadians on the subject of mental health treatment for offenders. I wanted to learn more about their concerns, experiences and ideas on how to promote human rights, including long-term safety for all Canadians.
One email that I received was from Sheila Pratt of Maple Ridge, British Columbia. Sheila 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.
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.
Canada’s penitentiaries and prisons are not hospitals. Some of those institutions are not equipped to deal with, help or care for people with mental health problems.
Honourable senators, Bill S-203, which was previously 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-203, 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.
In addition, if the Attorney General consents, those provisions allow for the waiver of mandatory minimums where the drug treatment has been successfully completed.
Maintaining consistency between the way that the criminal law addresses mental health treatment and the way 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 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. I repeat: Jail will not solve the problem.
To quote the Correctional Investigator of Canada, Mr. Howard Sapers, he says: “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 offenders 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-203 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 pre-trial diversion for less serious offences or delayed sentencing to allow treatment for 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.
For example, the Toronto model uses repeated bail appearances, similar to drug treatment courts, where the accused appears before the judge very frequently. There are police workers based at the courthouse.
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 a peace bond 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. The 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-203 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 province must approve the mental health treatment program. This explicit reference to a mental health treatment program could encourage the development of additional mental health treatment programs with the provincially operated treatment centres.
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.
Finally, 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.
Bill S-203 does exactly the same thing for offenders who complete a mental health treatment program as it does for people who have been accused of drug-related charges. 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 programs.
The provisions do not require that the convicted person be cured; the provision as drafted leaves these decisions within the court’s discretion.
Before I conclude, I would like to read some experts’ opinions on Bill S-203.
Professor David Joubert, expert in clinical psychology and imprisonment research said:
I think that the best way to reduce risk of future conflicts in such cases is to provide the individual with humane and high-quality mental health care, as well as to reduce stigma, goals that cannot be accomplished in a carceral setting.
His colleague, Professor Jennifer Kilty, expert on psychiatric care in prisons, said:
The carceral system does not provide adequate mental health diagnosis, care, or treatment and too often relies on psychopharmatherapy to try to address mental distress.
Those two experts in the field make very important points about treating inmates with mental health issues.
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 for inmates with mental health issues. It is important to ensure that offenders can receive the mental health treatment they need, which will also help to keep Canadians safe, both in the short and in the long term.
Hon. Yonah Martin (Deputy Leader of the Government): I’m not the critic of this bill, but I would like to adjourn the debate in my name.
(On motion of Senator Martin, debate adjourned.)