Reprinted from "Criminal Justice" issue of Visions Journal, 2005, 2 (8), p. 30-31
From Psychiatric Patient Advocate Office (2003). Mental Health and Patients’ Rights in Ontario: Yesterday, Today and Tomorrow – 20th Anniversary Special Report at www.ppao.gov.on.ca/pdfs/ pub-ann-2002.pdf © Queen’s Printer for Ontario, 2003. Reproduced with permission.
Ontario’s first courtroom dedicated exclusively to dealing with mentally disordered offenders opened on May 11, 1998, at the Old City Hall Court House in Toronto.
It had become evident to those working in the criminal justice system that the numbers of mentally disordered accused appearing before the courts were increasing drastically. There were a variety of reasons for this. The number of provincial psychiatric hospitals had been reduced. Alternative housing never materialized. A provincial network of clinics to provide medication and monitor patients was nonexistent or inadequate. Homelessness became the most public sign of the problem, while at the same time voters were seduced by politicians who raised the specter of rising crime rates, and more jails and prison were built. The price of mental illness for the homeless became arrest. Jails were the only public institution left open to the homeless mentally disordered 24 hours a day. They were not well served by a justice system seeking efficiency, often falling through the cracks and spending inordinate amounts of time in jail for many offences which were more nuisance than criminal.
A loose coalition of interested parties who experienced this population on a daily basis began to meet. The group included social workers, crown attorneys, defence lawyers, court staff, security, psychiatrists and judges. Eventually a plan emerged. This plan involved the cooperation of the Ministries of Health and LongTerm Care, Attorney General, Solicitor General, Community and Social Services, Corrections, Metropolitan Toronto Police Services and the Centre for Addiction and Mental Health. No new funds were required.
A specific court (102) was provided on a daily basis to deal with mentally disordered accused from Old City Hall and College Park Courts who were in custody and required a fitness hearing before further procedures in the Criminal Code1 could be triggered. This courtroom had the advantage of adjoining holding cells and office space. This allowed easy access to the prisoner by psychiatrists, social workers, lawyers and families. This also removed the fragile population from the “Bull Pen” atmosphere of the normal cells.
A key feature of the court is the utilzation people with exceptional competence and interest in dealing with the mentally disordered. The court is nonadversarial; the rules of procedure, decorum, and evidence are relaxed. Everyone, including family members and the accused, participates in the dialogue. Psychiatrists are onsite every day to conduct fitness hearings, speak to families and provide advice to the staff.
Specialized duty counsel and crown attorneys staff the court. Judges who have expressed an interest and have expertise in dealing with mentally disordered offenders sit in the court. Other court staff, clerks, security, and assisting officers have attended educational programs on their own time, given by psychiatrists, on how to deescalate tension in the mentally disordered.
One of the most important components of the court is the onsite presence of Mental Health Court Workers, who facilitate diversion as well as provide a more extensive outreach program to the mentally disordered accused. The Mental Health Court Workers are social workers who have an intimate knowledge of the mental health and social service facilities. They assist the accused in connecting with the appropriate service agencies or treatment centres and follow up any referrals. They also ensure that the accused gets to scheduled appointments and will in general assist with maintaining a higher than usual level of compliance. This aggressive outreach slows down the revolving door phenomenon, which is a conspicuous feature of the mental health system.
Ideally, a mentally disordered accused who is arrested will be identified and sent to the Mental Health Court. He will be seen by legal aid, social workers, and psychiatrists. He will have a fitness hearing immediately followed by a bail hearing. If unfit, a hospital bed will be booked for further assessment or treatment. If fit, the accused will usually be released on bail with terms to deal with risk management, counseling and reintegration. The same procedure applies to those found unfit, once fitness is achieved. The accused is released from custody and ordered to reattend court on a frequent basis at first, to monitor and encourage compliance. After a period of four to six months, if the accused is stabilized, reintegrated and has not reoffended, the social workers gather supporting documents and speak to the Crown Attorney about staying the charge or agreeing to a noncustodial sentence if the Crown determines the matter cannot be diverted.
This form of “therapeutic jurisprudence” has at its core a philosophy that most of these offenders are not evil, but ill. It believes that one of the purposes of the justice system is to heal as well as protect. It believes that the accused must be heard and participate in the planning. It believes that positive encouragement, rather than threat, creates a better atmosphere for healing.
The goal of the court is to expedite case processing, create effective interactions between the mental health and criminal justice system, increase access to mental health services, reduce recidivism, improve public safety and reduce the length of confinement in jails for mentally disordered offenders.
The court has dealt with approximately 3000 persons to date. A scientific evaluation has been attempted, but changing circumstances and an unreliable database have hampered it. The empirical feedback has been positive.
The court provides its facilities to the Ontario Review Board upon request. The courtroom is far more convenient for counsel and witnesses and less oppressive for the accused than holding hearings at the jails.
The court is in its fifth year of operation and is facing significant issues and challenges. These include the coordination of treatment for those who have concurrent disorders of mental illness and drug addiction; dealing with the developmentally handicapped; standardizing protocols between the service agencies; and the root problems of lack of housing and poverty.
Should the court be expanded to include the mentally disordered clientele from the other Toronto courts? Should the court include an onsite clinic? Should the court be promoting a “safe house” option for the police, such that the mentally disordered who come in conflict with the law can be brought there, instead of jails or traditional hospitals?
These issues will all be part of the ongoing debate. The court is not perfect, but it is a good start at solving the problems of a mentally disordered person caught up in the criminal justice system.
About the Author
Justice Ormston works at the Ontario Court of Justice, Old City Hall, Toronto
R.S.C. 1985, c. C-46