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.

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