“The Challenge of Mental Illness in the Justice System” – Part 1: Criminal Court
On Tuesday evening, the Chief Justice of the Supreme Court of Canada, The Right Honourable Beverley McLachlin, gave a talk in Halifax about people with a mental illness (her term, which I will use throughout) and their interactions with the justice system, both civil and criminal. For me, it was an interesting, although slightly, frustrating talk (I dislike the way people with mental illness and people who work in the medical or legal profession were treated as two different and distinct groups, with no overlap).
Like most people who follow disability-related news, I’m well aware of both the high levels of mentally ill people incarcerated in Canada and the frightening number of fatalities when someone with a mental illness interacts with the police. [Read More on this on FWD: Record of the Dead. I love policy. Publicity and the Taser. What is Justice.]
As the Chief Justice herself said, it’s an issue that many people want to sweep under the rug. I often see people wanting to pretend that each incident of a person being killed by the police as an individual issue, rather than a disturbing trend. As an activist, it’s heartening for me to know that the Chief Justice of the Supreme Court of Canada believes this is a systemic problem, and one that we need to fix.
I’m going to divide my discussion of this talk into three parts, just as the Chief Justice herself did. Part one is an introduction to the situation in Canada, as well as touching on issues that can occur when people with mental illnesses interact with the criminal justice system. Part two will focus on civil cases, specifically on people who have a diagnosed mental health condition refusing treatment and the response of the court. (I’m sure that will be fun. /sarcasm) Part three will talk about people with mental health conditions being victims of the justice system.
The Chief Justice began her talk with a brief history of the treatment and stigma around mental illness, focusing on how people used to believe that mental illness was a sin, or a sign of possession, or the fault of the mentally ill person. She then went on to detail how scientific advances have combated these stereotypes. (I wanted to move the country where mentally ill people are not blamed for having a mental health condition or considered weak or told to shut up, but I think we come at this from different perspectives.) She also touched briefly on the history of forced institutionalization in Canada, first in sanitariums outside of the city, and then in hospitals within it. She ended this section by discussing the de-institutionalization movement, which often left people with a mental illness with no skills to find a home or a job, and no ties to the community having been in the institutional setting for years. To quote my notes, which are not verbatim:
“The streets are dominated by many people with mental illness. We must now interact with them in society. Where once the legal solution was simple, now it is complex and expensive. Decent housing, drugs, hospitals, psychiatrists cost money. With so many competing demands on the health care, the claims of the mentally ill hover on the margins.”
One thing the Chief Justice highlighted in this section was the lack of hospital beds for people needing a psychiatric evaluation. When I worked in a mental health-related job, I know there were dedicated beds at the hospital for people brought in for psychiatric evaluation, but because beds were at a premium, they were sometimes given to other types of patients. This, in turn, both increases tensions between people who work within the mental health system and people who work primarily with physical illness (as though these are entirely separate things), as well as making it more difficult for police officers to bring people who may be living with a mental illness into the hospital for evaluation. Many of us can agree that a prison cell isn’t a place for someone who is having a mental health-related crisis, but sometimes there’s no place else to go.
The Chief Justice then introduced her discussion of people with mental illness and the criminal justice system by bringing up the Charter challenges to the system that existed pre-1982.
As a brief history lesson: Canada instituted the Charter of Rights and Freedoms in 1982, which guaranteed rights such as the right to be free from discrimination based on mental or physical disability. Now cases can be brought before the Supreme Court as “Charter Challenges” – the case is about whether or not the law itself is illegal by violating the Charter. In terms of people with mental illness in Canada, if they were found to be “not guilty by reason of insanity”, they were held under a Lieutenant-Governor’s Warrant, taken to an institution, and held there without any trial, without a judge, and with the case only being reviewed periodically. It was, in essence, incarceration without trial or any possibility of parole. This was Challenged as being unconstitutional, and the system had to change.
Again, to quote my not verbatim notes:
Parliament got to work and they drafted a series of provisions, known as Part 20 of the Criminal Code. These provisions are very advanced. They have set up an alternate route whereby mentally ill people who are charged with crimes are, after a hearing before a judge, declared Not Criminally Responsible. If they are declared NCR, then they do not go through the ordinary court system. They go before a NCR Board (this is Provincial). The board has an obligation to determine what is the least invasive way of looking after their illness. May give them an absolute discharge if there is no danger to the public and they can be released into society. They can give a conditional discharge, which is a discharge under medical supervision, and this can vary from part-time hospitalization to being in the community. Or they can, if the Board feels the danger to the community is such, require the person to remain in custody in a hospital.
There are reviews every year. The board deals with their cases and gets some familiarity.
This system is working very well. It works humanely. It works in a fair manner where mentally ill people can come before boards in an informal way. It is also providing adequate protection to the public. This is on the whole a positive development.
We still have problems: lack of hospital facilities. Before this system can start to operate a judge has to say that the person is NCR. Requires psychiatric assessment in a hospital. Sometimes trouble getting them into the hospital. A number of judges have spoken out about this. Reported in newspapers. Also problems in finding facilities for young people. 13 year old girl ended up having charges stayed because the authorities were unable to provide a proper youth setting for her evaluation and care. She was sent to prison instead, which was totally inappropriate. I mention these cases to show there are strains in the system.
I’ve had a bit of interaction with the Mental Health Courts from when I worked in the system. Like many things involving people with a mental illnesses, these courts are underfunded and very busy. There are very strict rules about who qualifies as “mentally ill enough” to be seen in this court, which means that people who should be here are instead sent back to the regular criminal courts. Everyone involved looks at this and knows it’s a problem, but the money isn’t there to solve it.