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.

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