July 10, 2014
The Senate of Canada
Bill S-203 (An Act to amend the CDSA and the Criminal Code (Mental Health Treatment)
One in 10 Canadians suffers from some type of mental or substance disorder (Statistics Canada, 2013). The Canadian Mental Health Association (2005) as well as the Mental Health Commission of Canada (2012 ) remind us that those who have such troubles are more likely to be criminalized than their mentally healthy counterparts. Further, there is a disproportionate rate of incarceration of persons with mental health issues than of other Canadians, for minor criminal offences.
In this context, CCJA is pleased that the Senator recognizes mental health treatment programs can be a measure to rehabilitate the personal, family and community trauma associated with mental disorders, perhaps assuage the suffering of those concerned, and assist them in positive social functioning. We also applaud the lifting of minimum punishments that compel judges to punish excessively and are heartened at the possibility that they will no longer be bound by these.
We would like to add a number of additional points to the Senate’s deliberations:
- The number of mental disorder treatment programs and courts is inadequate. Mental disorders associated with illegal actions require a significant engagement on the part of all levels of government and collaborative inter-professional practices at the ground level to ensure that proper alternatives are available, accessible and appropriate. This is far from the case at present. There are currently only six Canadian communities with a mental health court. These courts are located in Vancouver, Toronto, Ottawa, Halifax, St. John, N.B. and St. John’s Newfoundland. This begs the question of how many people with mental disorders will be criminalized for their behavioural illnesses without the possibility of being diverted toward specialized courts and requisite health programming.
- Many mental health courts still function within a punitive framework. The fact is that people who are referred to these courts, in some instances, may not access treatment unless they plead guilty to the offence for which they are charged (Desai, 2013, p.12).This has the egregious effect of associating help for mental disorders with acknowledging guilt. This also goes against the original purpose of setting up mental health courts which was to channel the accused toward a treatment solution rather than a punishment solution (Kaiser, 2010).
- Mental health courts and treatment programs would serve to be more beneficial if the person were not weighted down or distracted by the threat of punishment. A better approach would be diversion to a mental health court instead of the traditional court route. This also would channel the accused toward a treatment solution rather than a punishment solution (Kaiser, 2010).
- However positively regarded, mental health courts must serve to address programs and diversionary measures that de-stigmatize mental disorders (a problem that is not a matter of personal choice). Stigma is recognized as being one of the most hurtful effects of living with mental health issues in Canada (MHCC, 2012).
This brings us to a final consideration: Instituting minimum punishments has several deleterious effects, not the least of which are promulgating lengthier sentences and more crowded prisons. Judges’ use of discretion is thus evacuated resulting in the need to legislate those exceptions considered worthy by the government.
On behalf of the CCJA Board of Directors,
Irving Kulik, Executive Director
Canadian Mental Health Commission. http://www.cmha.ca. Last retrieved July 1, 2014.
Canadian Mental Health Commission B.C. Division (2005). Criminalization of Mental Health. No. 2 http://www.cmha.bc.ca/files/2-criminalization.pdf
Desai, A.; with C. Delisle, J. Lewchuk and J.D. Wilson (2013). Towards an Integrated Network: Working Together to Avoid Criminalization of People with Mental Health Problems. 2nd edition. Ottawa: St. Leonard’s Society of Canada, p. 12.
Kaiser, Archie (2010). “Too Good to Be True: Second Thoughts on the Proliferation of Mental Health Courts” in, Canadian Journal of Mental Health, 29(2), pp. 19-25.
Mental Health Commission of Canada. http://www.mentalhealthcommission.ca. Last retrieved July 1, 2014.
Mental Health Commission of Canada. Topics: Stigma. http://www.mentalhealthcommission.ca/English/issues/stigma?terminitial=31#. Last retrieved July 1, 2014.
Sunderland, A. and Leanne C. Findlay (2013). “Perceived Need for Mental Health Care in Canada: Results from the 2012 Canadian Community Health Survey–Mental Health” in, Health Reports, Ottawa : Statistics Canada, no. 82-003-X, p. 3.