The Mentally Ill: How They Became Enmeshed in the Criminal Justice System and How We Might Get Them Out

7. What to do?

The over-representation of individuals with mental illness in the criminal justice system is a situation that has arisen due to a complexity of factors. The solution, to my mind, must also be multi-faceted in order to be successful. It is recognized that health care is constitutionally a provincial/territorial domain but solutions, given that the problem of the over-representation of mentally ill individuals in the criminal justice system is largely one of “transinstitutionalization”, must involve main stream civil mental health care.

7.1 Invest in Provincial and Territorial Mental Health Care

We know that the percentage of our population who suffer from mental illness will remain static over time and across cultures/jurisdictions. What accounts for differences, where they occur, is thought to be due to recognition or reporting of the disorders rather than actual incidence. Similarly, the percentage of that population who will present as a management problem for society will remain constant over time. What will change as a function of politics or unintended evolution is how we, as a society, choose to respond to the problem. Will the problem be addressed through new efforts in health care or will we allow the problem to continue to leak through that system and into the criminal justice system? It will be one or the other. I am of the view that we should not continue to expand the role of the courts and the criminal justice system as principal dispensers of mental health care.

It is much less expensive, more humane, and more appropriate that this population be looked after properly at first instance by the civil mental health care system. The best prophylactic in avoiding the growth of mentally disordered accused in the Criminal Courts is an improved civil mental health care system across the provinces and territories. Therefore, the number one remedy to the problem is reinvestment in civil mental health care. It is the failures of this system that we are seeing in the criminal justice system. If one examines the cases of extreme violence – the “headline cases” - perpetrated by individuals with untreated mental disordersFootnote 9 it is a virtual certainty that the individual had had contact with the civil mental health system but that she was either discharged or evaded containment and or treatment. It is alarming to note, in many cases, contact with civil mental health care was within days of the very serious offending.

Included in the concept of “civil mental health care” is the necessity of housing with appropriate levels of support. Homelessness amongst this population is an enormous problem. Aid to provincial and municipal governments to provide this support will inevitably prove to have a good return on the investment in the form of fewer individuals suffering from mental illness entering the criminal justice system. This is not only a health concern it also engages ministries responsible for public safety, law enforcement, and criminal justice.

There is a strong business case for the federal government’s investing in provincial/territorial civil mental health care. It is, as mentioned above, really all about what mechanisms should most appropriately be engaged to look after this population. To the extent that the provinces/territories are able to manage mental illness before it blooms into something that engages the criminal justice system, money has been saved, prognoses improved, and the potential for re-offending reduced. Hence, consistent with the Federal Government’s published objectives, the streets and communities will be safer as a result and, the enhanced safety will come at a lower cost. 

7.2 Expand Diversion Programs: Move the New Forensic Patient back to the Civil System Quickly

Various jurisdictions in CanadaFootnote 10 have created “diversion programs” in an effort to facilitate the diversion or transfer of mentally disordered offenders from the criminal justice system to civil mental health services. Diversion from the criminal justice system into the mental health care system can be accomplished where the offense is within the minor to mid-range and is the direct result of a mental disorder. Certain further criteria must be met, including that the safety of the public must not be compromised, the mental disorder must be amenable to treatment, and the proposed mental health care facility or practitioner must agree to accept the accused.

Diversion can occur at a number of junctures in the proceedings, including prior to the accused’s initial court appearance, after the first appearance, after a bail hearing, or after a fitness evaluation and hearing.

As well, the police have always had “pre-arrest diversion” available to them.  Considerable discretion rests with any police officer who observes an apparently mentally ill individual act in a disorderly or inappropriate manner, to take that individual to a psychiatric facility for evaluation pursuant to the Mental Health Act, rather than laying charges. There has certainly not been universal reliance on this option. The efforts of well-meaning police officers have often been frustrated by the necessity of having to wait, potentially for hours, until the individual is assessed, as they are obligated to do until actual custody can be relinquished to the psychiatric facility. Some officers have been further demoralized by knowing that the patient that they brought to hospital was released only a short while later, to repeat the behaviour, presumably because the hospital was not able to satisfy itself as to the level of the patient’s dangerousness so as to detain him involuntarily.

Diversion programs are clearly aimed in the right direction, but would be fruitless endeavours in the absence of funds and services to support them.  Conventional supervision and services are often insufficient but those can often be energized with the support of the teams involved with diversion programs and mental health courts. Clinicians and mental health workers could easily collaborate and create a prescription for intensive community services for the chronically mentally ill, predominantly the schizophrenics, that would meet their medical, mental health and psychosocial needs. Programs like this include in their repertoire of interventions, medical and therapeutic services, assistance with money management and dealing with social services, housing and related support services, and close case management that may involve daily reporting and monitoring. The incentive for the client may first of all be the avoidance of penal consequences and greater constraints on their liberty, but more importantly, the patient/end-user is offered an opportunity to become reconnected to a caring environment, and in particular, to individuals who are able to deal with the numerous vexing concerns that the chronically psychotic mind experiences as an irritating distraction, if not a threat.

Mental Health Courts and Diversion programs are not part of the ‘system’ in all parts of Canada. They should be. “Graduates” from diversion programs reoffend less often and re-offend less violently. A recent Canadian meta-analysis demonstrated that Mental Health Courts have a 17% reduction in recidivism as compared with traditional courts. Graduates maintain housing, employment, and health care more consistently. They have fewer contacts with the policeFootnote 11. The Federal Government should become formally involved in promoting these programs as, mentioned above, there is a strong business case for doing so. Perhaps Grants to initiate mental health courts and/or diversion programs could be considered by the Federal Government. Prosecutions obviated result in fewer individuals with mental illness entering correctional systems.

Meanwhile, the provisions pertaining to “Alternative Measures” contained in the Criminal CodeFootnote 12 should be amended to specifically advert to individuals who suffer from mental illness as was done in ss. 718.2(e) which deals with “aboriginal offenders”Footnote 13 (e.g. “…..with particular attention to the circumstances of offenders suffering from mental illness.”). Similar amendments should be made to ss.718.2. Inclusion of these amendments (both with respect to sentencing principles and alternative measures) will serve to sensitize the bench and bar as to the importance of considering alternatives for individuals suffering from mental illness even where “diversion” is not a formal program in that particular jurisdiction.

Where convicted of an offence the courts must be mindful of the relative ineffectiveness of “specific” and “general deterrence” and the appropriate case law dealing with sentencing mentally ill offendersFootnote 14. It must be recognized that the criminal justice system, with its traditional approach, as a response to behaviour driven by mental illness that is problematic for society, typically aggravates the situation and worsens prognoses. The principles of therapeutic jurisprudence should be formally adopted by the Federal Government and injected into s.718 of the Code so that meaningful dispositions are obtained elsewhere than in the specialty courts. The so-called “statutory minimums” which stipulate mandatory minimum penalties should be, for the most part, discretionary where the accused suffers from a mental disorder. 

7.3 A Federal Mental Health Act

Because the civil mental health acts for each province and territory are different there are, effectively, different criminal justice responses in every province and territory as a result of how they interact with the criminal justice system. There are some glaring differences. For example, in Ontario it is possible to hospitalize (lock up in a hospital) an individual who suffers from a mental illness yet not treat that individual if they are “capable” of consenting to treatment. In British Columbia, all individuals subject to the jurisdiction of the provincial Review Board are deemed to consent to treatment. The provincial/territorial civil mental health legislation unavoidably intersects with the Criminal Code either implicitly or, as with the legislation in Ontario, explicitly, as it provides jurisdiction for the ordering of psychiatric assessments in the criminal courtsFootnote 15. As a result, Ontario is the only jurisdiction where the criminal trial court can order an assessment to assist with sentencing or judicial interim release. The Mental Health Act acts as a supplement to s.672.11 of the Code.

It would be better to have, at least where civil mental health legislation and the Code do intersect, uniformity across Canada. This could be accomplished with a Federal Mental Health Act which intrudes into (from a division of powers perspective) the provincial health care domain only to the extent that is necessary to make the criminal law uniform across Canada. There are examples of intrusions of this sort by the criminal justice system; for example, the ability of the criminal courts to order unfit accused to undergo involuntary treatment.

While it may not be accomplished easily, it would be of benefit, for the reasons discussed above, if hospitalization was based upon illness and lack of insight (as well as, or perhaps instead of dangerousness). Most would agree that a system of intervention based upon dangerousness is theoretically very attractive. Why interfere with an individual’s freedom unless they are “dangerous”? However, the theory makes the assumption that determining who is and who is not dangerous is within the range of abilities possessed by mental health professionals. The determination of dangerousness is something that cannot be done accurately. Some would say that despite an industry devoted to this enterprise, predictions with respect to individuals rather than groups is no better than chance. Of course, when someone who is actually not dangerous is detained upon the mistaken assessment that they are in fact dangerous the error is very difficult to detect. The converse is all too apparent.

There are 3 main reasons why civil mental health systems fail to adequately address a patient’s needs:

  1. Dangerousness based entry threshold,
  2. Inability to involuntarily treat those who are hospitalized but who are ‘capable’. (These two events should be merged.)
  3. Discharge from hospital is pre-mature. Patients are discharged as soon as statutory criteria are barely met but before the patient has sufficient stability/insight required to maintain treatment and stability.

It is widely recognized that these deficiencies create a rather “leaky” civil net that is bound to send many mentally ill individuals into the criminal justice system.

A corrective attempt with respect to the jurisdictional threshold for state intervention is a move that would be politically charged and legally difficult. On the other hand, if we want to see the numbers of mentally ill people in the criminal justice system decrease we must have a system that will adequately deal with the issue within the provincial/territorial health care systems. As mentioned above, the population must be looked after by one system or the other. The provinces and territories may require funds in order to improve their mental health care systems. Improvements need to be made both with respect to resources and legislation. It is unclear the extent to which shifts in legislation can be connected to funding.

7.4 Part XX.1 of the Criminal Code

Where an individual commits a crime as a result of an untreated mental illness it is generally better to have that person self-identify and seek out, where appropriate, a rehabilitative response by way of an NCR verdict. The outcomes for individuals travelling down this path are, from a public safety perspective, much better than for those who remain in the regular prosecutorial stream. Their reintegration into the community is gradual, monitored, supported, and moves only as it is safe to do so. Where the same individual comes to ‘warrant expiry’ after completing a sentence in the regular prosecutorial stream there is none of that and the probability of reoffending is considerably greater.

Whether or not to avail oneself of an NCR verdict is decidedly tactical and driven in part as a result of the likely outcome. That is, as between the Review Board system and the regular prosecutorial system (along with jails, corrections, parole, etc.) which route will be optimal? We know that counsel will steer their clients away from NCR verdicts where the consequences are potentially harsh. To the extent that this happens our streets and communities become less safe. With the proclamation of Bill C-14 (The Not Criminally Responsible Act that came into force in July, 2014) the potential for harsh consequences has been injected into the Criminal Code thereby increasing the probability that mentally ill offenders will avoid those erstwhile rehabilitative provisions and end up in the jails and correctional facilities rather than in hospitalFootnote 16. We know very well from the likes of the Ashley Smith inquest, and as mentioned several times above, mentally ill individuals do particularly poorly in jails. Their conditions worsen and their prospects for rehabilitation deteriorate while the probability for future difficulties increases. The irony is that with Bill C-14 the “over-representation of individuals with mental illness in the criminal justice system” is likely to get worse.

Enable the Change with Effective Federal Legislation

While the Mental Health Commission of Canada has done some wonderful work, it has been, to date, “aspirational” in nature. It has funded some very worthwhile research and has prepared strategy papers. The current commission is a funded project which lapses in 2017. Presently, its future is uncertain with respect to 1) its future existence, 2) its mandate, and 3) its funding. As a result, the commission is not easily able to engage in any meaningful long term commitments. A fixed-term project is by definition hobbled during its final days.

It is recommended, as set out in Bill S-208 (Second Session, Forty-First Parliament, 62 Elizabeth II, 2013), that a commission (“Canadian Commission on Mental Health and Justice”) be established with a mandate to not only fund research and generate strategies but to actually become involved in effecting change on the ground. The next generation of efforts in this area needs to move strategy to implementation. This could include advisory roles, links to other government agencies, and the development of evidence-based action plans that could be overseen by or partnered with the Commission. All in an effort to create systems that reduce the probability of mentally ill individuals becoming enmeshed in the criminal justice system.