Law Times

Law timeS • September 12, 2011 An online resource 1.800.263.3269 Focus On HUMAN RIGHTS LAW Gov't failing mentally ill: lawyer L BY KENNETH JACKSON For Law Times awyers for mentally ill clients too often fi nd themselves up against a wall trying to fi nd resources in the community so they can get bail and the help they need, says one Toronto lawyer. Esther Daniel has seen the problems happen too many times since her call to the bar in 1999. She believes the issue is a crisis that infringes on the basic hu- man rights of vulnerable people. "Th ose of us who have represented, whether a few or numerous vulnerable individuals who fall into this category, we have seen stories where our clients have no support in the community, can't get a plan together, and our clients are in custody while we try our best to tap into resources that are available," says Daniel. "It's an ongoing crisis . . . where there are not enough resources to assist these vulnerable individuals. Th ere needs to be more attention paid to community resources as well and funding to those community resources." Daniel notes off enders with serious mental illnesses who can't fi nd hospi- tal beds often end up in police holding cells or detention centres as a result. In fact, several media stories in the last year have documented an increase in the number of mentally ill patients reach- ing Ontario jails. Some people have called it a "fl ood." For its part, the Schizophrenia Soci- ety of Ontario reports that the number of people with mental illnesses who come into confl ict with the law is in- creasing by approximately 10 per cent every year. Of those, about 15 to 20 per cent end up in jail. Roughly one-third of them have serious mental illnesses such as schizophrenia. Th e Ontario Review Board, a pro- vincial body dealing with off enders found not criminally responsible for their crimes, has seen the number of pa- tients it oversees increase almost every year since 1991. In that year, it had 390 patients, a number that grew to about Crown prosecutors are now more willing to listen to defence lawyers about their mentally ill clients, says Esther Daniel. 1,500 in 2009, according to the latest annual report available on its web site. In addition, estimates say there are almost 6,500 people in Ontario jails every day with serious mental illnesses. Th e problem has become so bad that in 2010, an Ontario judge ruled authorities were forbidden to send of- fenders to jail to wait for a hospital bed to open up. With long delays in fi nding beds, off enders would instead go to po- lice division cells. But Superior Court Justice Ian Nordheimer overturned that ruling in April. He called it an unrea- sonable decision. "Not only are the police not properly equipped to deal with these people, it is not the role of the Toronto Police Ser- vice — or any other police service — to house these people," Th e Globe and Mail reported Nordheimer as saying. "It is also not appropriate to foist the burden of this problem onto the police or to saddle them with the fallout from this confl ict." Th e reversal was met with mixed emo- tions. Some people applauded it, while others said it took the burden off the Ontario government to expand services. Dr. Sandy Simpson, clinical director of the law and mental health program at the Centre for Addiction and Men- tal Health, agrees that better services are necessary for both clients seeking bail or parole and for those already in pris- on when they should be in a hospital. "Th ere are too many people with serious mental health problems in prison, some of whom could be well treated in the community, some in hospital," he says. "We need more eff ective, assertive high-contact community teams who ensure social stability and treatment engagement to prevent the problems of off ending [from] developing and to pro- vide a pathway out of the criminal justice system when off ending has occurred." Daniel takes the matter a step further. She believes it's a human rights issue. "If you are looking at it from the hu- man rights perspective, just generally speaking it has to do with vulnerable off enders and mentally ill off enders. People who are mentally delayed, they are vulnerable. What does it say about our society . . . when we have mental- ly ill people incarcerated and we don't have the resources available to them? It's refl ective of our society in many ways." Back in 1999, when Daniel was just beginning work as duty cou nsel, she saw how unprepared the courts were to deal with mentally ill off enders. But the problem was much worse then, she notes. Clients during that time, CANADIAN LAW LIST 2011 YOUR INSTANT CONNECTION TO CANADA'S LEGAL NETWORK Inside you will find: an up-to-date alphabetical listing • • • and judges in Canada; contact information boards, commissions and Crown corporations; legal and government contact information of more than 58,000 barristers, solicitors and Quebec notaries, corporate counsel, law firms for the Supreme Court of Canada, the Federal Court of Canada, Federal Cabinet Ministers, departments, related to each province for the Courts of Appeal, Supreme Courts, County and District Courts, Provincial Courts, law societies, law schools, Legal Aid, and other law-related offices of importance. MORE THAN A PHONE BOOK Hardbound • Published February each year • On subscription $146 • L0084-8573-26084 • One-time purchase $162 • L0084-8573 • ISSN 0084-8573 Visit canadalawbook.ca or call 1.800.387.5164 for a 30-day no-risk evaluation Prices subject to change without notice,to applicable taxes and shipping & handling. CANADIAN LAW LIST www.lawtimesnews.com CLL - 1-4 page - 5X.indd 1 8/23/11 2:40:32 PM she recalls, had a much more diffi cult time getting bail compared to a person with no history of mental illness. "You could just tell right away as soon as the Crown, the judge or justice of peace heard the people had a mental health is- sue, right there and then it was going to be an extra hurdle to get out of custody. "It was as if all parties concerned were afraid or hesitant to let this per- son out on a judicial interim release . . . for the fear [that] just because they had a mental health issue, something may happen while they were out on [bail]." At the same time, people didn't have to be in crisis or necessarily suff er- ing from their mental health problem at the time. When they'd come before the courts, the mere mention in the synopsis that they had previously suf- fered from depression or schizophrenia would sometimes mean they wouldn't get bail, according to Daniel. "Th at would be enough for the ob- stacles to appear," she says. "I'm not talking about very serious off ences. I'm talking about off ences that maybe they pushed their parent or family member. Th ey stole something or got into a fi ght with a police offi cer. Just very basic, straightforward daily off ences you see in the courts." But the problem has eased over the years with greater awareness of mental health issues, Daniel says. In fact, there are now several men- tal health courts scattered across the country. At the same time, Daniel fi nds Crown attorneys are more willing to make a decision and not feel as though it's going to come back to haunt them. "Th ey are more willing to listen," she says. "Is there a plan? Where is this per- son going to live? Th ey are more willing." But small improvements haven't fi xed the problem. "We still have a far way to go," says Daniel. "We are tending to house men- tally ill individuals in the criminal jus- tice system, in detention centres, and not in treatment facilities where they should be in most cases." LT PAGE 9

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