One judge’s perspective
Reprinted from "Concurrent Disorders" issue of Visions Journal, 2005, 2 (8), pp. 21-22
What percentage of court cases have a mental health component? That depends on how mental health is defined. For starters, there is a large section of Canada’s Criminal Code that governs what should happen if someone charged with an offence is “not criminally responsible as a result of mental disorder” (NCRMD).1
Consider some numbers. The most recent census found about four million people living in British Columbia. Out of that number, last year there were over 100,000 new criminal and youth files opened in both the Provincial and Supreme courts. Out of those, there were 692 requests for a psychiatric assessment to determine if an accused person understood what was going on in a court or at the time of the offence. Only 11 people were found to be NCRMD.2
The 692 requests for psychiatric assessment suggest, at the very least, some kind of behaviour that either police, sheriffs, lawyers or the judge thought needed to be investigated before charges could proceed. In only 11 cases did a psychiatrist decide the person should not go through a court proceeding because they would not understand what was happening in that process.1 The remainder of people might be diagnosed, medicated or involved in some other program—or not—while their charges proceeded through the courts.
If you consider that drug or alcohol misuse, antagonism toward authority, ready use of violence or coercion, and other ‘typical’ antisocial behaviours have some mental health element, the number of psychiatric assessment requests is misleadingly low.
The vast majority of cases involve problems with alcohol: “liquid courage” before an event; constant and debilitating use as a depressant; binge consumption with no care about the consequences; or an “out-of-character,” one-off incident with a host of negative consequences. Non-prescription drugs such as cocaine, crystal meth, marijuana and heroin present other problems—typically, with younger adults or youth.
Are people who use and abuse substances suffering from some form of mental illness? Such an assertion could never provide a defence in court, but it is often used as an explanation if the matter gets to sentencing.
Using an extremely broad definition of mental ill-health, one could say that perhaps every criminal case has a mental health component. Criminal problems typically involve emotional, traumatic and sometimes life-altering situations, and the people charged, witnesses, and even the people who merely listen to media descriptions are all affected.
The range of human behaviour encompasses the good, the bad and the ugly, and people’s reactions to problems are the daily fare in our courtrooms. The court is a place where people, using words and logic, can tell their stories and possibly resolve their conflicts. Overall, the pain in what one hears described is horrendous. It helps to remember that we see a small percentage of the population—about 3%, and fewer still if you consider that there are repeat offenders.
What resources are available to the courts to help deal with such difficult problems? Primarily, our in-house human resources. It is extremely important for court personnel to maintain a healthy state of mind. Almost without exception, the people working in the courts are careful listeners, who are able to remember and pass on ideas about what might work better in similar situations. The best are those who, above all provocation, treat people with dignity and patience.
Resources available outside a courtroom, and their effectiveness, remain largely a mystery to most judges. Defence counsel may make suggestions to a judge during a sentencing, but they are not trained as social workers and often only hear of treatment resources from their clients. Judges typically hear how someone is doing only if there is a breach of probation or a new charge. If we find someone guilty, the resources for sentencing are either expensive (e.g., jail, which has limited positive rehabilitative results) or underfunded. Probation officers have excellent counselling skills, but they also have large caseloads. There are unlicensed recovery programs, with varying levels of success and which are often used merely to avoid jail. Our front-line police forces continue to play a professional role in arresting people in an increasingly frustrating “charter” world. It is largely up to the individual to find the rare community resources that typically have long waiting lists. Most important are the medical, religious, family and friendship networks that people may be able to turn to when they need help.
Ultimately, the only thing a judge has control over is the atmosphere in their courtroom. If a convicted person can be persuaded that there has been a fair and reasonable process and that there is a better way of handling their problems in the future, and if they can be persuaded to participate in and benefit from whatever punishment or help is offered, there is a better chance they’ll change to healthier ways of dealing with problems. We can only try all that is humanly possible, within the court structures as they currently exist, to help people change.
About the authorJudith Gedye, a former psychiatric nursing assistant, has a master’s degree in psychology (community corrections). She practiced law for 22 years as criminal defence counsel, before being appointed as a provincial court judge in Vancouver in 1999. Judge Gedye currently hears criminal, civil, family and youth matters in North Vancouver
- Criminal Code of Canada, RSC 1985, c. C-46, Part XX.1.
- Thanks to Caroline Shandley, Ministry of the Attorney General Court Services Branch, for providing these statistics.