Bill S-208

2nd Session, 41st Parliament,

62 Elizabeth II, 2013

senate of canada

BILL S-208

An Act to establish the Canadian Commission on Mental Health and Justice

Whereas a comprehensive approach to promoting positive mental health and treating mental illness would contribute to public safety, and would result in less crime, reduced incarceration rates, decreased costs, improved rehabilitation prospects, and better use of resources within the criminal justice system;

Whereas mental illness touches the lives of many Canadians and their families;

Whereas, although the vast majority of individuals who live with mental health problems or mental illnesses are not involved with the criminal justice system, individuals with mental illnesses are nevertheless over-represented in that system;

Whereas mental health problems are increasingly dealt with by the criminal justice system, which is ill-equipped to treat the mentally ill, compounding the potential risks posed by Canadians with mental illness to themselves and others;

Whereas access to timely and effective services, treatment and community-based supports for Canadians with mental illness would contribute to reducing their over-representation in the criminal justice system;

Whereas the proportion of federally sentenced offenders with mental health needs identified at intake doubled between 1997 and 2008;

Whereas more than 45% of male inmates in federal correctional institutions — and over 69% of female inmates — received institutional mental health care services in 2010-2011;

Whereas the number of self-injury incidents in federal correctional institutions doubled between 2005 and 2010, and the Office of the Correctional Investigator has called for self-injury among inmates to be viewed as a mental health issue;

Whereas the Supreme Court of Canada has stated that, for individuals found not criminally responsible of an offence, “providing opportunities to receive treatment, not imposing punishment, is the just and appropriate response”;

Whereas mental illness is treatable, and the effectiveness of treatment is enhanced by early detection and intervention, by adequate funding for mental health care, and by support for the families and communities of mentally ill Canadians;

Whereas there should be no shame in having a mental illness, or having a family member who has a mental illness, and the stigma associated with mental illness is an impediment to timely and effective treatment;

Whereas the inherent dignity and worth of all Canadians — including those living with mental illness — must be recognized and affirmed;

Whereas the Office of the Correctional Investigator has found that, within the federal correctional system, “symptoms of mental illness are often misunderstood” and “are regularly met by a range of inappropriate responses”;

Whereas the convergence of mental illness and the criminal justice system requires specific and sustained attention, cooperation between levels of government, government departments and agencies, professionals in the fields of mental health and criminal justice, and other stakeholders, and effective coordination of the various efforts to address this growing mental health, public safety, and justice problem;

Whereas efforts to mitigate the risks posed by Canadians with severe mental illness must rely on empirical evidence rather than prejudice and stereotypes;

And whereas the interest of public safety is best served by an evidence-based approach developed in concert with experts, including professionals in the fields of criminal justice and mental health;

Now, therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

SHORT TITLE

1. This Act may be cited as the Canadian Commission on Mental Health and Justice Act.

INTERPRETATION

2. The following definitions apply in this Act.

“Commission” means the Canadian Commission on Mental Health and Justice established by section 3.

“Council” means the Mental Health and Justice Advisory Council established by section 19.

“Ministers” means the Minister of Health, the Minister of Justice and the Minister of Public Safety and Emergency Preparedness.

ESTABLISHMENT OF COMMISSION

3. There is established a corporation to be called the Canadian Commission on Mental Health and Justice.

PURPOSE, POWERS AND DUTIES OF COMMISSION

4. The purpose of the Commission is to facilitate throughout Canada the development, sharing and application of knowledge, statistical data and expertise on matters related to mental health and the criminal justice system in order to contribute to the health, safety and well-being of all Canadians and to help establish appropriate, effective and just methods for addressing the needs of individuals who live with mental health problems or illnesses and are involved with the criminal justice system as young persons or adults, by

(a) addressing crime prevention through the promotion of initiatives to foster mental health and provide for the early detection and treatment of mental illness;

(b) promoting understanding and increasing awareness among Canadians and participants in the criminal justice system of issues related to mental health, including developing measures to destigmatize mental illness and address common misconceptions about the relationship between mental illness and crime;

(c) promoting and participating in the study and development of laws, policies and best practices that address the needs of individuals suffering from mental illness who are involved — or at risk of becoming involved — with the criminal justice system with a view to improving mental health, reducing crime and recidivism rates and protecting the public, including laws, policies and best practices related to

(i) the detection, identification and assessment of mental health issues at all stages of the criminal justice process,

(ii) the establishment and development of early intervention and diversion programs, mental health courts, procedures for dealing with unrepresented accused who may be suffering from mental illness, pre-trial and pre-sentencing treatment programs, alternative sentencing measures, and other specialized programs or procedures,

(iii) the provision of access to and delivery of quality mental health care services and programs for offenders, both during incarceration and after release into the community, and

(iv) the provision of treatment for individuals who have been found not criminally responsible by reason of mental disorder, including the provision of effective post-discharge services and support for the individuals and their families;

(d) studying the mental health needs of victims of crime and their families, and examining ways in which the criminal justice system can better address those needs;

(e) studying job-related stress and associated mental health challenges faced by law enforcement officers, corrections officers and other participants in the criminal justice system, and examining ways to better address those matters;

(f) developing training programs for participants in the criminal justice system, including law enforcement officers, court officials, lawyers, judges and corrections officers, to maximize their effective involvement in the detection of mental health problems and the provision of mental health care;

(g) examining the relationship between mental illness and substance abuse as it relates to the criminal justice process, and encouraging cooperation among those working in the fields of addiction, mental health, and criminal justice;

(h) examining the impact of mandatory minimum sentences on individuals who live with mental health problems or illnesses;

(i) fostering collaboration in the fields of mental health and criminal justice at the federal level and contributing to the coordination of federal policies and programs in those areas;

(j) fostering cooperation, consultation and information exchange in the fields of mental health and criminal justice with provincial and territorial governments, as well as with individuals and organizations in or outside Canada that have experience or expertise in those fields;

(k) encouraging evidence-based analyses in the development of mental health and criminal justice policy, drawing upon research and findings in sociology, criminology, psychology, psychiatry and other disciplines;

(l) encouraging the consideration of social determinants of health in developing mental health strategies and delivering mental health services within the criminal justice context, with a particular emphasis on the needs of aboriginal communities;

(m) contributing to the development of evaluation frameworks to assess progress in improving mental health within the context of the criminal justice system;

(n) collecting, compiling, analyzing, interpreting and publishing statistics and other data relating to mental health and persons at risk of offending, accused persons, offenders and individuals found unfit to stand trial or not criminally responsible by reason of mental disorder, including in relation to matters such as

(i) availability and outcomes of programs aimed at the early detection of mental illness and the treatment of individuals prior to their involvement with the criminal justice system,

(ii) length of time between individuals’ initial contact with the criminal justice system and the conduct of mental health screening or the provision of mental health services or treatment,

(iii) availability of mental health services or treatment for persons under arrest, accused persons, and offenders who receive non-custodial sentences,

(iv) types of, and rates of participation by offenders in, mental health treatment programs and other forms of mental health interventions during incarceration and after release into the community,

(v) mental health outcomes for offenders treated for mental health issues,

(vi) rates of recidivism for offenders treated for mental health issues and for individuals found not criminally responsible by reason of mental disorder, and

(vii) rates of attempted suicide and death by suicide among offenders and individuals found not criminally responsible by reason of mental disorder;

(o) examining ways to improve the collection, compilation, analysis, interpretation and publication of statistics and other data throughout Canada to provide the information necessary for evidence-based planning, policy development and service delivery in the context of mental health and criminal justice; and

(p) providing recommendations and reporting on matters within the scope of the Commission’s mandate.

5. (1) In furtherance of its purpose, the Commission may

(a) monitor, analyze and evaluate issues relating to mental health and criminal justice;

(b) review and provide informed public comment on laws, policies and programs;

(c) undertake, promote, initiate and evaluate studies and research;

(d) sponsor or support conferences, seminars and other meetings;

(e) facilitate and support cooperative efforts among the Commission, governments, the academic community, the legal and medical professions, and other organizations and persons interested in the Commission’s work;

(f) establish, maintain and operate information systems and facilities to encourage and support the exchange of information and cooperate with operators of existing systems and facilities;

(g) authorize the use of sampling methods for the collection of statistics by the Commission;

(h) consult with, and provide advice to, the Ministers;

(i) publish and disseminate studies, reports and other materials; and

(j) perform any other function that is conducive to the fulfilment of its purpose.

(2) The Commission may, in order to carry out its purpose,

(a) enter into contracts, agreements, memoranda of understanding or other arrangements with a department or agency of the Government of Canada, with any other government or any of its agencies or with any person or organization, in the name of Her Majesty in right of Canada or in its own name;

(b) expend during a fiscal year any money provided by Parliament or received from other sources in that year through the conduct of its operations, subject to any terms on which the money was provided or received;

(c) acquire any money, securities or other property by gift, bequest or otherwise and hold, expend, invest, administer or dispose of that property, subject to any terms on which it is given, bequeathed or otherwise made available to the Commission;

(d) generate revenues through the provision of goods or services; and

(e) do anything else that is necessary or incidental to carrying out its purpose.

(3) Without limiting the generality of paragraph (2)(a), the Commission may enter into arrangements providing for

(a) the collection of any statistical or other information relevant to the purposes of this Act; or

(b) the supply, exchange or transmission of any statistical information, including data, tabulations and analyses.

6. (1) Except as provided by any other Act of Parliament that expressly refers to this subsection, the Commission is entitled, by request made to the deputy head of a department within the meaning of paragraph (a), (a.1) or (d) of the definition “department” in section 2 of the Financial Administration Act, or to any other person designated by that deputy head for the purpose of this section, to free and timely access to any information or data in the possession of the department that is required by the Commission for the carrying out of its purpose.

(2) Subsection (1) does not apply in respect of any data

(a) that is information the disclosure of which is restricted under section 19 of the Access to Information Act or any provision set out in Schedule II to that Act; or

(b) that is contained in a confidence of the Queen’s Privy Council for Canada described in subsection 69(1) of that Act, unless the data is also contained in any other record, within the meaning of section 3 of that Act, and is not information referred to in paragraph (a).

(3) The Commission, and every person acting on behalf or under the direction of the Commission, must not disclose any data that comes to their knowledge under subsection (1) that is information described in subsection 13(1), section 14, any of paragraphs 18(a) to (d), section 18.1, any of paragraphs 20(1)(b) to (d) or section 20.1 of the Access to Information Act.

7. The Commission is ultimately accountable, through the Minister of Health, to Parliament for the conduct of its affairs.

ORGANIZATION

8. (1) The Commission consists of a President and four other Commissioners to be appointed by the Governor in Council on the recommendation of the Minister of Health made with the concurrence of the Minister of Justice and the Minister of Public Safety and Emergency Preparedness.

(2) The Minister of Health must consult with the leader of every recognized party in the Senate and House of Commons before making a recommendation under subsection (1).

(3) A person is eligible to be appointed as a Commissioner if the person has knowledge or experience that will assist the Commission in fulfilling its purpose.

(4) As a group, the Commissioners should be broadly representative of the socio-economic and cultural diversity of Canada, represent various disciplines, and offer legal and medical expertise with a particular focus on mental health issues.

(5) In recommending persons for appointment as Commissioners, the Minister must provide for a balance between persons with backgrounds in health and justice, and must take into consideration the gender balance of the Commission.

(6) The Commissioners hold office during pleasure for such term, not exceeding five years, as the Governor in Council may fix so as to ensure, as far as possible, the expiration of not more than two terms of office in any year.

(7) The President holds office on a full-time basis and the other Commissioners hold office on a part-time basis.

9. (1) A Commissioner is eligible for reappointment to the Commission in the same or another capacity.

(2) A Commissioner who wishes to resign must notify the Minister of Health in writing to that effect, and the resignation becomes effective at the time the Minister receives the notice or at the time specified in the notice, whichever is the later.

10. The Commissioners must elect one of themselves as Vice-President of the Commission.

11. (1) The President is the chief executive officer of the Commission and presides at meetings of the Commission.

(2) If the President is absent or unable to act or if the office of President is vacant, the Vice-President has all the powers, duties and functions of the President.

(3) The President must reside in the area of the head office of the Commission.

12. (1) The President is to be paid the remuneration that is fixed by the Governor in Council.

(2) The Commissioners, other than the President, are to be paid the fees that are fixed by the Governor in Council.

(3) A Commissioner is entitled to be paid reasonable travel and living expenses incurred by the Commissioner while absent from the Commissioner’s ordinary place of residence in the course of performing duties under this Act.

HEAD OFFICE AND MEETINGS

13. The head office of the Commission is in the National Capital Region described in the schedule to the National Capital Act or in any other place in Canada that the Governor in Council may fix.

14. (1) The President may determine the times and places at which the Commission must meet.

(2) Subject to the by-laws of the Commission, a Commissioner may participate in a meeting of the Commission or of a committee of the Commission by means of any telephone or other communication facilities that permit all persons participating in the meeting to communicate with each other, and a Commissioner so participating in a meeting is considered to be present at the meeting for the purposes of this Act.

BY-LAWS

15. The Commission may make by-laws respecting

(a) the constitution of committees of the Commission, including committees with members who are not Commissioners, the duties of the committees and the expenses to be paid to members who are not Commissioners;

(b) the quorum and procedure at meetings of the Commission or its committees; and

(c) generally, the conduct and management of the work of the Commission.

STAFF

16. (1) An executive director of the Commission, and any other officers and employees that are necessary for the proper conduct of the work of the Commission, are to be appointed in accordance with the Public Service Employment Act.

(2) For the purposes of advising and assisting the Commission in the performance of its duties and functions, the Commission may, on a temporary basis, contract for the services of any person who has specialized knowledge of any matter relating to a specific project of the Commission and may fix and pay the remuneration and expenses of that person.

17. Under the direction of the President, the executive director has the day-to-day supervision over the staff and work of the Commission.

18. The Commissioners are deemed to be employees for the purposes of the Government Employees Compensation Act and to be employed in the federal public administration for the purposes of any regulations made pursuant to section 9 of the Aeronautics Act.

ADVISORY BODIES

19. (1) There is established a council, to be called the Mental Health and Justice Advisory Council, consisting of

(a) not less than twelve but not more than twenty-four members appointed by the Commission to hold office during pleasure for a term not exceeding three years; and

(b) the Deputy Minister of Health, the Deputy Minister of Justice and the Deputy Minister of Public Safety and Emergency Preparedness.

(2) As a group, the members of the Council should be broadly representative of the socio-economic and cultural diversity of Canada, represent various disciplines, and reflect knowledge, expertise and experience appropriate to the work of the Commission.

(3) In appointing persons as members of the Council, the Commission must provide for a balance between persons with backgrounds in health and justice, and must take into consideration the gender balance of the Council.

(4) The Council must include one or more members who have personal experience of either themselves, or an immediate family member, living with mental illness while being involved with the criminal justice system.

(5) A member of the Council is eligible for reappointment to the Council in the same or another capacity.

(6) The members of the Council must elect one of themselves as Chairperson of the Council.

(7) A member of the Council serves without remuneration, but is entitled to be paid reasonable travel and living expenses incurred by the member while absent from the member’s ordinary place of residence in the course of performing duties under this Act.

20. (1) The Council must advise the Commission on the Commission’s strategic directions and long-term program of studies and on the review of the Commission’s performance, and may advise the Commission on any other matters relating to the purpose of the Commission.

(2) In providing advice to the Commission on its strategic directions and long-term program of studies, the Council may consider any proposal or request made to the Commission by a member of the Senate or the House of Commons, a committee of either or both Houses, a government or an agency of a government, an organization or a member of the public.

21. (1) For the purposes of advising and assisting the Commission in any particular project, the Commission may establish a study panel presided over by a Commissioner and consisting of persons who have specialized knowledge in, or who are particularly affected by, the matter to be studied.

(2) A person serving on a study panel serves without remuneration, but is entitled to be paid reasonable travel and living expenses incurred by the person while absent from the person’s ordinary place of residence in the course of performing duties under this Act.

GENERAL

22. (1) The Commission is for all its purposes an agent of Her Majesty in right of Canada and may exercise its powers only as an agent of Her Majesty.

(2) The Commission may enter into contracts in the name of Her Majesty in right of Canada or in its own name.

(3) Property acquired by the Commission is the property of Her Majesty in right of Canada and title to the property may be vested in the name of Her Majesty or in the name of the Commission.

(4) Actions, suits or other legal proceedings in respect of any right or obligation acquired or incurred by the Commission, whether in the name of Her Majesty in right of Canada or in its own name, may be brought or taken by or against the Commission in the name of the Commission in any court that would have jurisdiction if the Commission were not an agent of Her Majesty.

23. The accounts and financial transactions of the Commission must be audited by the Auditor General of Canada at the times that the Auditor General considers appropriate, and a report of the audit must be made to the Commission and to the Ministers.

REPORTS AND REVIEW

24. Within three months after the end of each fiscal year, the President must submit to the Minister of Health an annual report of the activities of the Commission in that year, including the financial statements of the Commission.

25. (1) The President may, at any time, submit to the Ministers a report of the Commission on any matter within the scope of the Commission’s mandate.

(2) The Ministers must respond within 90 days to the Commission with respect to any report that the Ministers receive under subsection (1).

26. (1) Five years after the coming into force of this Act and every five years after that, the Commission must undertake a review of the impact and effectiveness of its mandate, operations and activities, including an analysis and evaluation of any changes in legislation, policies or practices that may have been enacted, adopted or implemented as a result of the Commission’s recommendations.

(2) The President must, within one year of the Commission undertaking a review under subsection (1), submit the Commission’s report on the review to the Ministers.

27. (1) The Minister of Health must cause a copy of any report of the Commission referred to in section 24, 25 or 26 to be tabled in each House of Parliament on any of the first 15 days on which that House is sitting after the Minister receives it.

(2) The Minister of Health must cause a copy of any response by the Ministers to a report of the Commission to be tabled in each House of Parliament on any of the first 15 days on which that House is sitting after the Ministers give their response to the Commission.

CONSEQUENTIAL AMENDMENTS

Access to Information Act

28. Schedule I to the Access to Information Act is amended by adding the following in alphabetical order under the heading “OTHER GOVERNMENT INSTITUTIONS”:

Financial Administration Act

29. Schedule II to the Financial Administration Act is amended by adding the following in alphabetical order:

30. Schedule IV to the Act is amended by adding the following in alphabetical order:

31. Part III of Schedule VI to the Act is amended by adding, in alphabetical order in column I, a reference to

Privacy Act

32. The schedule to the Privacy Act is amended by adding the following in alphabetical order under the heading “OTHER GOVERNMENT INSTITUTIONS”:

Public Sector Compensation Act

33. Schedule I to the Public Sector Compensation Act is amended by adding the following in alphabetical order under the heading “OTHER PORTIONS OF THE PUBLIC SERVICE”:

COMING INTO FORCE

34. (1) Subject to subsection (2), this Act comes into force on a day to be fixed by order of the Governor in Council.

(2) No order may be made under subsection (1) unless the appropriation of moneys for the purposes of this Act has been recommended by the Governor General and such moneys have been appropriated by Parliament.