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Law TiMes • May 2, 2011 Harper's plans for top court another run at the Su- preme Court every time he goes to Sault Ste. Ma- rie, Ont. Harper was up there P in September 2009, for example, speaking to a few hundred Conservative sup- porters. He told them that if the Liberals had won election in 2008, the Supreme Court would be stacked with more "left-wing ideologues" letting criminals go free and blocking all of the wonderful things he had planned for Canada. A university student in the back row taped the speech on his cellphone. When it hit YouTube, Harper found himself in deep trouble with the judiciary and bar associa- tions across Canada. Last week, Harper was in Sault Ste. Marie again, this time telling other fervent Conservative souls about his plans for the Supreme Court. If he gets his majority government today, he prom- ised, the top court will get "strong, independent minds" on the bench. It's as if there weren't already such minds at the top court. In the same breath, he told them about his crime agenda and how judges will no lon- ger have certain discretionary sentencing powers. As a result, he's going to bundle 12 crime laws he's been kicking around the House of Commons for the last couple of years and get them all passed in an om- nibus bill within 100 days af- ter Parliament reopens. He can do it if he gets his majority. We know what some of his crime bills involve: no more house arrest for crimi- nals; no more pardons for serious crimes; and cracking down on drug pushers. Then there's the latest one, right out of the election campaign, that would give citizens "the power to defend themselves and their properties." Under the Harper agenda, judges would lose discretion- ary sentencing powers over certain crimes and new mega- prisons would house more people and keep them locked up for longer periods of time. Harper's people were sali- vating that he could appoint three more judges during a four-year term if he gets a majority. Actually, it could be four judges or even more de- pending on who else retires. Harper promised he'd fol- low the same selection pro- cess for these new appoint- ments as he did in past years. That's not encouraging. He never delivered on his 2006 promise to set up parliamen- tary confirmation hearings for prospective candidates rime Minister Stephen Harper seems to take The Hill By Richard Cleroux to the top court. All we got were show-and-tell sessions with softball questions before a parliamentary committee. During five years in office, Harper has appointed two justices. The first was Justice Marshall Rothstein. His only problem has been trying to understand what the other justices are saying when they speak French in front of him. The second appointment, Justice Thomas Cromwell, has shown himself to be a good middle-of-the-road judge in both official languages. So far, Harper hasn't ap- pointed any right-wing zeal- ots to the bench. So why does he keeping talking about left- wing ideologues? Right-wing zealots who are forever whining about the 1982 Charter of Rights and Freedoms tend to mini- mize the importance of what comes before the Supreme Court. But there's some very heavy judicial stuff coming up through the legal system right now. As a result, Harp- er's new Supreme Court jus- tices are going to have to do a lot of heavy thinking. There's a big prostitution case coming out of Ontario, for example. Then there's the polygamy matter in Brit- ish Columbia. A key issue, of course, is the attempt to create a national securities regulator. It's not as if the Supreme Court is finally doing some- thing difficult. It's been like this since Canada be- gan. Forget that silly business about activist judges looking for things to do. In 1988, the Supreme Court struck down Canada's abortion law, and our politi- cians have yet to replace it. In the Delwin Vriend case, the top court stood up to Stockwell Day, who spent $872,000 in Alberta's money to go after a lawyer who was defending a gay teacher. Day lost. The teacher won. How about the decision that eight million Quebeck- ers can't secede unilaterally? How important was that? Just ask Gilles Duceppe. Who gets appointed, then, does matter. We'll have to see what today's election results bring to get a sense of the implications for our top court. Richard Cleroux is a freelance reporter and columnist on Parliament Hill. His e-mail address is richardcleroux@ rogers.com. COMMENT A mental-health lawyer's wake-up call to the profession BY SARAH SHARTAL For Law Times n September, the federal prison ombudsman wrote that Corrections Canada was warehousing people with mental-health disabilities and that "Canadian penitentiaries are becoming the largest psychiatric fa- cilities in the country." Then in October, the Toronto Star discussed how I an accused person's mental health had deteriorated to the point where he pushed children in front of a subway car. At the same time, our society puts peo- ple with mental-health disabili- ties and addictions in municipal shelters. On average, my clients have been homeless for seven years before I meet them. We should question why so many people with mental-health disabilities end up in prison. As a front- line criminal lawyer who works with individuals with serious mental-health and addiction issues, I find that many systems have failed my clients before their arrest. All of my clients should be on disability assistance and in supportive housing but are unable to manage the application processes. Most of my clients have been repeatedly and involuntarily hospitalized and have spent large parts of their lives in jail often for issues like assault, possession of small amounts of drugs, theft under, and a multitude of breaches. There are so many people with mental-health dis- abilities that it's difficult to find a hospital bed for ac- cused found to be unfit. Every week, unfit accused who need treatment go to detention centres because all of the hospital beds are full. Last year, one of my clients spent three months in detention before enter- ing the Centre for Addictions and Mental Health. During that time, his mental health deteriorated. The amount of time he spent in detention was un- usual, but the need to wait in jail for a bed is not. The point is that not only are we warehousing mentally ill people but we're doing it badly. While many public programs fail to accommodate individuals with mental-health issues, I also believe we should be asking questions of everyone in the crimi- nal justice system, including defence lawyers. As lawyers, we need to re-examine how we work with accused who live with mental-health issues. To begin with, a very large proportion of such people end up in prison for minor criminal charges. Many go to jail for breaching their bail or probation conditions, nuisance charges like screaming at real or imaginary people, threatening to harm some- one, fighting or possessing small amounts of drugs. But it's important to note that many of my clients live with both mental-health issues and addictions, something called concurrent disorders. They've ended up in prison because the legal sys- tem didn't recognize the complex nature of their dis- abilities. In many cases, neither the defence nor the prosecution thought about whether it was possible to both resolve the immediate charge and help create the conditions in which the accused might stabilize enough to stop the cycle of recidivism. Often, the ac- tual resolution to the charges creates new problems. As a result, every month the system releases hun- dreds of long-term alcoholics on bail conditions that prohibit consuming alcohol. They then get drunk and are charged with breach of recognizance bail. Others, who in some cases have serious trouble remembering what day it is, are routinely put on reporting proba- tions. When they don't show up at the probation of- fice, they're charged with a breach and rearrested. In my experience, most Crown attorneys and judg- es understand the counterproductive nature of legally prohibiting a long-term alcoholic from drinking or requiring a cognitively impaired accused to report to a fixed-date probation. If I can present a reasonable alternative, most will agree to it. This requires me to think outside the box. In a recent case, a client with organic brain damage was convicted of assaulting a police officer by spitting on him. The court and the Crown agreed that my client wouldn't have to go to the probation office every month but instead would www.lawtimesnews.com meet with a social worker three times a month. The court system has also established diversion Speaker's programs. Through them, an accused agrees to work with the court's mental-health support workers for six months or more. Those workers help clients find doc- tors, housing, and support programs and learn to live within socially safe behavioural parameters. My cli- ents who have successfully concluded mental-health diversion have a lower rate of recidivism than those who haven't gone through it. The problems in this area Corner are compounded by the utterly counterproductive division be- tween lawyers who help clients with things like the Ontario Disability Support Program and those who work only on criminal charges. It's ab- surd to document a client's mental-health disabilities for the purposes of support programs and not help the same person by using those reports to support an application for mental-health diversion in court. It's equally absurd for a criminal lawyer to defeat or plead criminal charges for such clients without help- ing them get disability income or stable housing. The Charter of Rights and Freedoms and every hu- man rights code in Canada establish a statutory duty to accommodate an individual's disabilities. In principle, this also applies to how lawyers and Legal Aid Ontario provide legal services. Our standard paradigm assumes that someone comes to an office and asks for help with a particular legal problem. It presupposes that the indi- vidual has some kind of paperwork, is able to come to the office, and understands the nature of the problem and that, with assistance, it can be addressed. The same presumptions apply to all forms of electronic applica- tions. My clients can't do these things. My practice is based on accommodating my clients' disabilities. For more than a decade, I have provided predictable office hours in three major drop-in centres in Toronto. I go to where my clients receive other supports so that I can work with them and their ser- vice providers. In recognizing that it's ridiculous to address one legal problem without trying to resolve other outstanding dilemmas, I have attempted to provide one-stop shopping for my clients. Over the years, I have also learned that for each cli- ent, I need to consider the sustainability of the legal resolution. A steady stream of repeat problems increas- es the misery in my clients' lives and wastes amazing amounts of systemic resources, including legal aid dol- lars. When my clients are more stable, their lives are better and they're less likely to annoy the public. In the end, I believe that a resolution to a crimi- nal justice case becomes a fiction if it's not sustain- able. In order to achieve a better result, the person needs to be able to establish enough stability to stay out of conflict with other people. If people don't receive disability benefits, they won't have enough money to sustain housing. If they don't have hous- ing, they end up homeless. If they end up on the streets, their mental health deteriorates and their use of drugs and alcohol increases. When their mental- health issues and addictions become more acute, their behaviour often deteriorates until they're ar- rested again. This process increases the pain my clients live with and costs the taxpayers a fortune in emergency policing, health care, and housing services. But rather than address the intersections of these problems, we're warehousing poor people with mental-health issues in prisons and shelters. If Charles Dickens' Tiny Tim lived today with perceptual and cognitive disabilities, it's likely he'd end up in prison or the shelter system. As a society, I believe we can support people more effectively than in prisons and shelters. But this will happen only if we're willing to talk openly about mental health and addictions and our own institutional stupidity. As lawyers, we also need to recognize our obligation to accommodate clients with mental- health and addiction issues so we can be part of the solution instead of the problem. Sarah Shartal practises at Roach Schwartz & Associates in Toronto. PAGE 7 Digital LT.indd 7 4/29/11 11:28:50 AM