Where tolerance breaks down...
Reprinted from "Criminal Justice" issue of Visions Journal, 2005, 2 (8), p. 4-5
Canadians. Consider our national character. We are, in general, an orderly people. Canada achieved independence not through revolution, but through a gradual process of negotiation. The goals of our founding fathers in drafting the Constitution Act of 1867 were to ensure “peace, order and good government.”1 In public opinion surveys, Canadians frequently express their concern with maintaining a society that is free of crime and violence. The most recognized and loved of all Canadian icons is a police officer—a Mountie, resplendent in red serge.
Canadians are also pretty tolerant and compassionate. We believe it is possible to be a good Canadian without hiding or abandoning one’s cultural heritage. The Charter of Rights and Freedoms prohibits discrimination based on race, national or ethnic origin, or colour, as well as religion, sex and age.2 And we can be proud of the fact that ours is one of the few constitutions in the world to also prohibit discrimination based on mental and physical disability. We cherish the concept of universal health care, provided on the basis of need rather than the ability to pay.
Sometimes, however, our desire for order conflicts with our tolerance and compassion. This is certainly evident when we look at the plight of people with mental illness—and/or addiction—who enter into the Canadian criminal justice system. Our Criminal Code is based on the assumption that people are rational: their perceptions of the world are accurate, their reasoning skills are intact and their behaviour is organized and controlled. Of course, the Criminal Code also recognizes that this assumption does not always hold true. It contains special provisions for trying to ensure the fair treatment of people with mental illness who are accused of crimes. But research conducted in Canada and other countries makes it clear that the criminal justice system is a trap for people with mental illness. Compared to others, people with mental illness are more likely to get into the system, have a harder time navigating through it, and have more trouble getting out of it.
Symptoms of mental illness increase the risk for a wide range of interpersonal conflict, including conflicts that result in the police being called. In rare instances, mental illness causes violent or other criminal behavior—people act directly in response to symptoms they are experiencing, such as delusions or hallucinations often in an attempt to protect themselves from perceived danger. Much more common, however, are situations in which members of the general public misinterpret the behaviour of people with mental illness as aggressive or threatening and call the police for assistance. In many of these cases, the only violation that has been committed by the person with mental illness is a violation of social norms—talking too loudly, selfneglect, incoherent speech, mannerisms and so forth.
Once the police have been called, people with mental illness are more likely than others to be arrested.(REF?) Although modern police training devotes considerable attention to identifying and managing problems related to mental illness, it is still the case that symptoms such as incoherence, agitation, irritability and suicidality increase the risk of conflict with first responders.
And people with mental illness are more likely than others to suffer injury while being arrested.4 Conflicts with first reponders can be deadly.
Mental illness can impair people’s ability to communicate with criminal justice professionals, such as police officers, corrections officers and lawyers. It should come as no surprise, then, that people with mental illness are more likely to have problems obtaining good legal representation—especially given cutbacks in legal aid over the past decade—and more likely to be convicted of offences.5 Put simply, mental illness can make it difficult to get a fair trial.
People with mental illness also are more likely than others to spend time in secure facilities. Before trial, they may be remanded in custody due to fears that they will not attend future court dates. After conviction, they may be imprisoned due to a perceived risk to public safety. While in custody, they are prone to being bullied by other offenders for being “bugs.” They may be placed in administrative segregation to prevent victimization or because they simply can’t handle the demands of a regular living unit. They are likely to have difficulties getting along with corrections officers and accessing mental health care services.
All else being equal, people with mental illness are less likely than other offenders to receive a conditional release from custody (e.g., parole).7 This may be due to, among other things, problems communicating with correctional and parole board staff, as well as to the lack of adequate aftercare in the community. The same lack of resources that makes it difficult to obtain release also makes it more likely that people mental with illness will suffer a recurrence or exacerbation of symptoms after release,8 which may result in a return to custody or new charges.
The preceding summary paints a bleak picture of life in the criminal justice system for people with mental illness. The reality—so difficult to convey in a few words— is actually much worse. Prisons and jails have become de facto ‘treatment’ facilities for people with mental illness. Among incarcerated offenders, prevalence rates for many mental disorders—including schizophrenic disorders, bipolar mood disorder, major depressive disorders, mental retardation and substancerelated disorders—are several times higher than those observed in community settings. Tragically, on any given day in Canada, there are more people with mental illness sitting in correctional institutions (often untreated!) than there are in psychiatric wards or hospitals.
But there are rays of hope. In every part of the criminal justice system, there are professionals committed to improving conditions for people with mental illness. They have developed an incredibly diverse range of resources, including education and training, diversion, and mentorship programs; specialized police and court services; and improved programs for delivery of institutional and community based treatment and support.
I hope you find that this issue of Visions helps you to understand the unique problems faced by people with mental illness in the criminal justice system, and inspires you to follow in the footsteps of those people who are trying to make the Canadian system better reflect our values of tolerance and compassion.
About the Author
Dr. Hart is a professor of psychology at Simon Fraser University. His research interests include psychological assessment including violence risk, psychopathy, personality disorders and mental health issues in incarcerated populations. He has provided consultation services for lawyers in Canada and the US, with the police and RCMP in Canada and Her Majesty’s Police Service (United Kingdom), and with forensic psychiatric hospitals in BC and Norway. He is also co-editor of the International Journal of Forensic Mental Health
references available on request