Law Times

PAGE 6 u EDITORIAL OBITER By Glenn Kauth Mental health and the justice system Health Commission of Canada focused on the costs of proposals such as increasing the proportion of spending on mental health. But the strategy also had suggestions for responding to the overrepresentation of people with mental-health problems in the justice system. The strategy noted that besides the criminal behaviour itself, a "lack of T access to appropriate services, treatments, and supports have also had a powerful influence on this situation." It cited estimates that rates of serious mental-health problems among federal offenders upon admission have increased by 60 to 70 per cent since 1997. The strategy' programs to divert people with mental-health problems from the correc- tions system; providing better services within the justice system; ensuring that everyone has a comprehensive discharge plan upon release into the community; addressing critical gaps in treatment programs for offenders with serious needs; and training for police, court, and corrections workers. Interestingly, another report from the international human rights pro- s recommendations for change include more access to gram at the University of Toronto Faculty of Law is tackling similar issues. In fact, the report on Canada' with mental-health issues took a rather assertive tone in calling the coun- try' s treatment of federally sentenced women s current practices a violation of its obligations under international law. That report referenced the infamous case of Ashley Smith, the 19-year- old who died at the Grand Valley Institution for Women in 2007 after issue for lawyers' clients. We're all familiar with the garden-vari- ety criminal record check, but there's a O s becoming an he mental-health strategy proposed for Canada last week includ- ed some useful ideas for dealing with the issue when it comes to the criminal justice system. Much of the discussion about the strategy released by the Mental she tied a ligature around her neck. Smith had suf- fered from mental-health issues for years and faced repeated segregation and transfers between facilities. The U of T report criticized the corrections sys- underlying health issues. It' tem for focusing too much on assessment rather than treatment, excessive use of segregation and transfers, and the use of force without regard for women' s suggested reforms. Despite many good efforts, the justice and corrections systems have long struggled to deal with people with mental-health issues in a s hard to argue with the reports' conclusions and way that promotes the outcomes we all want: less crime, fewer people in jail, and people living healthier and more fulfilling lives. Of course, many of the rec- ommendations will cost money. But while the fed- eral government has reacted coolly to the idea of new spending and budgets are tight, the strategy is a good way forward. At the federal level, the government is already ahead in reducing its deficit, which means it should have spending room in the years ahead to move on improving mental-health services, includ- ing in the criminal justice system. — Glenn Kauth Vulnerable-sector checks a growing challenge for defence lawyers rganizations are requiring police checks more often for employment, even for volun- teer work, and it' more elusive one: the vulnerable-sector safety check. Clients who want to work or volunteer with children, the elderly or people with disabilities often have to get these checks done. If you haven't had a call from a client who was denied a clear vulnerable-sector safety check, you probably will soon. It' charge withdrawn as they may still be refused a clear vulnerable-sector safety check. Even arranging for the destruc- tion of your clients' fingerprints and photographs s not enough for clients to have a expunge the offending information because the police keep and disclose their own internal records. How common are these vulnera- from their arrest won't for vulnerable-sector safety checks. There were 36,453 requests the previous year. In one case, I recommend- A Criminal Mind ed to a client not to disclose a negative vulnerable-sector check. The incident hadn't even resulted in charges. We arranged for the client to have a personal interview with an officer from the detachment. After providing an explana- tion for the incident, the client made a fresh, successful appli- cation for a vulnerable-sector safety check. One matter, J.N. v. Durham Regional Police Service, found its way to the Superior Court in Oshawa, Ont., in 2011 when a disappointed applicant for a vulnerable persons search sought an order to have a non-criminal entry expunged. J.N. was a 52-year-old woman charged ble-sector checks? They're exceedingly common. In 2008, the Ottawa Police Service alone processed 40,885 requests Law Times LT Masthead.indd 1 designated police committee and the chief of police had refused to delete the refer- ence to the charge. On the facts, Justice John McDermot found breaches of the com- mon law right to fairness and the principle of fundamental justice in s. 7 of the Charter of Rights and Freedoms. The Canadian Civil Rosalind Conway Rose noted that a person who has been convicted can apply for a pardon or record suspension yet someone whose charge is withdrawn doesn't even get notice that authorities are keeping the record. On March 28, 2011, following argu- Liberties Association was an intervener in the matter. In his factum, counsel David with assaulting her father. The Crown had withdrawn the charge, and the accused didn't have to enter into a peace bond as is common with a withdraw- al. For three years, she struggled to find work in her chosen field, but both the ments in the J.N. case, the Ontario Association of Chiefs of Police established non-mandatory guidelines. The LEARN Guideline for Police diverted criminal charges, and withdrawn and dismissed matters. Police will con- sider negative contacts for five years or more where there' of behaviour. They'll release information about attempted suicides pursuant to the guidelines depending upon how recently and frequently they occurred. The LEARN guideline has an appeal s evidence of a pattern procedure called a reconsideration pro- cess. The client should request the reason for the denial. People should bring the appeal within 60 days. But just having a process doesn't pre- clude judicial review, something the police may want to avoid. It' tation all hang in the balance when a negative vulnerable-sector safety check besmirches a person' Record Checks is a long document that provides for disclosure of, among other things, discharges that occurred local- ly, peace bonds and restraining orders, Thomson Reuters Canada Ltd. One Corporate Plaza, 2075 Kennedy Rd., Toronto, ON • M1T 3V4 Tel: 416-298-5141 • Fax: 416-649-7870 • www.lawtimesnews.com Group Publisher ................... Karen Lorimer Editorial Director ................... Gail J. Cohen Editor .............................. Glenn Kauth Staff Writer ....................... Kendyl Sebesta Staff Writer ................... Michael McKiernan Copy Editor ..................... Katia Caporiccio CaseLaw Editor .................. Adela Rodriguez Art Director .......................Alicia Adamson Account Co-ordinator ............... Catherine Giles Electronic Production Specialist ........Derek Welford Advertising Sales ............... Kimberlee Pascoe Sales Co-ordinator ................... Sandy Shutt ©2012 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without writ- ten permission. The opinions expressed in articles are not necessarily those of the pub- lisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times disclaims any war- ranty as to the accuracy, completeness or cur- rency of the contents of this publication and disclaims all liability in respect of the results of Law Times is printed on newsprint containing 25-30 per cent post- consumer recycled materials. Please recycle this newspaper. any action taken or not taken in reliance upon information in this publication. Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd., 2075 Kennedy Rd., Toronto, ON, M1T 3V4 • 416-298-5141 clb.lteditor@thomsonreuters.com CIRCULATIONS & SUBSCRIPTIONS $175.00 + HST per year in Canada (HST Reg. #R121351134) and $265.00 for foreign addresses. Single copies are $4.00 Circulation www.lawtimesnews.com 2/7/12 3:32 PM the vulnerable-sector check if applicants are dangerous but another if they're not. Employment, education, and repu- is a new area where defence counsel can offer significant assistance to clients. LT s good name. This uRosalind Conway is a certified specialist in criminal litigation. She can be reached at rosalind.conway@gmail.com. inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times One Corpo- rate Plaza, 2075 Kennedy Rd. Toronto ON, M1T 3V4. Return postage guaranteed. Contact Ellen Alstein at ............416-649-9926 or fax: 416-649-7870 ellen.alstein@thomsonreuters.com ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 2075 Kennedy Rd., Toronto, ON, M1T 3V4 or call: Karen Lorimer ....................................416-649-9411 karen.lorimer@thomsonreuters.com Kimberlee Pascoe ..............................416-649-8875 kimberlee.pascoe@thomsonreuters.com Sandy Shutt ...... sandra.shutt@thomsonreuters.com s one thing to refuse COMMENT May 14, 2012 • Law TiMes

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