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Page 6 June 27, 2016 • Law Times www.lawtimesnews.com Mental illness behind bars O ur prisons are filling up with inmates with mental illness problems. The situation is going from bad to worse. According to a 2012 report by the United Nations Committee against Tor- ture, Canada had "inadequate infrastruc- ture of detention facilities to deal with the rising and complex needs of prisoners," especially those with mental illness. The report from the esteemed inter- national body said Canada had to stop using prisons to house the mentally ill. Prisoners are still being locked up in converted shower stalls, sleeping on mat- tresses tossed on cement f loors. Inmates are being crowded two and three to a cell. Some prisoners shout themselves to madness while others commit suicide. Recent studies show one-third of pris- oners begin their jail term with some sort of mental health condition. The Correctional Service of Canada produced figures in 2009 that showed 13 per cent of men and 29 per cent of women entering the prison system identified themselves as having men- tal health problems. Why were they not treated immediately? By law, Canadian courts and prison officials can't force prisoners to submit to medical treatment if they refuse. Many prisoners reject the help they need. Even judges have trouble. Some have ordered the ac- cused appearing before them undergo mental health as- sessments, only to see their rulings overturned on ap- peal. So prisoners go in need- ing medical treatment. They don't get it, and later they come out into society in no better shape than they went in, and often in worse shape. However, there has been a real sign recently that some politicians are prepared to do something about mental health issues in Canadian prisons. It came as a surprise. Liberal sen- ators Art Eggleton and Claudette Tardif of Alberta put together an Open Senate committee to investigate the mental ill- ness problem in Canadian prisons. They included Conservative and Independent senators, and invited prison experts to speak freely about mental illness in pris- ons. Experts who took part included John Howard Society executive direc- tor Catherine Latimer, the Correctional Investigator of Canada Howard Sapers, the aboriginal criminal lawyer and uni- versity law professor Michelle Mann- Rempel, and the chairman of Psychiatry at the Ontario Medical Association Dr. Gary Chaimowitz. The 200 chairs in the com- mittee room were filled to capacity with invited guests, everybody from psychiatric nurses and doctors to law pro- fessors and experts in prison issues and mental illness. The meeting had none of the nasty, partisan political exchanges old-time Senate committees used to have. Everybody was on the same side, just trying to figure out what has happened to our prisons and how it can be fixed. It was the sort of impartial Senate committee Prime Minister Justin Trudeau promised us last fall. The whole thing was so successful that the invited quests kept applauding the panel as if they were being treated to a heroic performance. In fact, it was that — every bit of it compared to what we've had from Senate committees in the past. Conservative Senator Bob Runciman said in defence of inmates that most of the violence in our prisons does not come from mentally ill prisoners. He spoke directly to his audience, including several dozen women present who work in prisons or who have served time. They applauded him. Chaimowitz, the forensic psychiatrist, said the real problem is that professionals like him "don't have the legal tools to force treatment on the mentally ill" in prison. He said he came to Canada from South Africa 30 years ago and loves the country and its values. However, Chaimowitz does not like the extensive Canadian use of solitary confinement that he has seen. The first time he visited segregated sections of our prisons he said he was "horrified at the scene." "I found psychotic men waiting, screaming, banging, undressed, some wallowing in their personal excrement in hard, dank rooms," he said. Some cells were the size of the hotel bed he had slept in the previous night in Ottawa. "Yet these conditions such as psycho- sis are treatable," he said. Eggleton promised the committee would meet again in the fall to discuss the same issue once again and senators from all parties would again be invited as well as members of the public. The overall conclusion among many spectators and participants was that if the Senate can keep on doing this sort of work, a great many more people may no longer be saying the Senate has outlived its use- fulness and should be abolished. LT uRichard Cleroux is a freelance reporter and columnist on Parliament Hill. His e-mail address is richardcleroux34@gmail.com. COMMENT ©2016 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written per- mission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. 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Brandeis, former associate justice of the Supreme Court of the United States, criticizing investment bankers for making a profit by shifting the risk of investments to others. And, oh, how his words resonate when it comes to the Law Society of Upper Canada's advertising and fee arrangements issues working group report. The 34-page report is chock full of observations and recommenda- tions that casts aspects of personal injury law into a dubious light, in areas such as advertising, referral fees, and contingency fee practices. The report also looked at advertising and fees in real estate law. Among its findings — the group said it's "concerned that contin- gency fee pricing is not currently sufficiently transparent at the outset to consumers. "In the personal injury market, for example, where firms are typ- ically operating on a contingency fee basis, the contingent fee that a prospective client can expect to be ultimately charged often remains opaque and it is difficult to determine whether a competitive struc- ture is being proposed." The working group also reports a "major concern was that referral fees in personal injury law have become unreasonable and dispropor- tionate, with several participants relating that some referring firms are currently negotiating upfront f lat-fee payments that are sometimes very large in addition to up to a 30 [per cent] share of the fee at the successful conclusion of the matter." Ideas to deal with the problem include making ad- vertisers spell out when it is not them providing the prospective legal services and making it clear they are referring clients out for a fee, or getting rid of upfront f lat referral fees on contingent fee matters. No doubt new LSUC Treasurer Paul Schabas will have his work cut out for him corralling the mess. Into the breach, Paul. LT

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