Mental health courts could help Albertans

Establishing a mental health court in Alberta could make a difference in the lives of those with mental illness who come into contact with the legal system.

Only one mental health court currently exists in Canada, in Toronto, but the idea is being investigated by other jurisdictions.

Provincial Court Judge Marilyn White said the idea is needed to help those with mental health issues who are increasingly more prevalent for minor crimes in the court system.

Speaking independently at the Alberta Provincial Victims Services Conference in Banff at the end of April, White said mental health courts are needed as these individuals are more frequently in the legal system.

“I believe this is due to the deinstitutionalization of the mental health system,” she said.

The mental health system has been moving away from the ideology of keeping people in institutions and towards having them in communities.

However, White said, practically speaking, without having places for them to go or supports and programs for them, they fall through the cracks.

The result is more individuals with mental illness being caught up in the courts and she said there is a debate among the judiciary about whether or not judges should engage in rehabilitation of individuals they deal with, or remain independent.

Toronto Judge Richard Schneider started the first mental health court in Canada.

White said the roles needed for the specialty court were already there, but there needed to be continuity.

It has assigned to it two Crown prosecutors, two duty counsels, eight mental health court workers and two clerks.

The mental health workers, said White, are an important role as they are able to deal with many different components expeditiously, like assessments, preparing treatment plans and accessing resources like shelter, food and health care.

“The mental health court is aware of the options to address mental health,” she said. “The situation with mental illness in Alberta is a situation where, as of now, we are only a diversion stage.”

Diversion seeks to keep people out of the criminal justice system through the alternative measures program and applies only to low impact criminal offences and would see the accused work with mental health experts and probation officers.

At the end of the program, if successfully completed, the charges are withdrawn. White explained the Toronto mental health court only deals with guilty pleas unless charges go through the diversion process.

There are a number ways people with mental illness come into contact with the legal system, the first being the issue of fitness to stand trial.

“It will become an issue almost at first appearance and may have already become apparent at arrest,” White said. “Fitness to stand trial is a very interesting issue because the standard has been going lower and lower.”

What that means is that the courts are looking to ensure an individual has a rudimentary factual understanding of their situation and the legal process they are involved in.

“More and more people who are mentally challenged or labouring under mental illness are being put through the criminal system,” she said, adding the issue is a double edged sword because those found unfit may be detained for months or years, which can be disproportionate to the crime committed. “Facing a minor offence and going through this process is alarming.”

White said once someone is released, they may no longer have things like a place to live and there are no supports to help them transition back into the community and end up back in the system.

“That is where the traditional system has a revolving door and that revolving door is starting to spin faster and faster because there are more individuals going through it,” she said.

The second way the courts deal with the mentally ill is by using a defence of being not criminally responsible, also known as not guilty by reason of insanity. It deals with whether or not during the commission of a crime a person is suffering from a mental illness of such severity they are not criminally accountable.

White said how those defences are used is carefully legislated in the criminal code and those who it is applied to must be reviewed regularly.

She added that police are often the front line in dealing with people with mental illness who have engaged in criminal activity that may have also scared members of the public.

What happens is that person, said White, is not just considered mentally ill, but dangerous and “tragically, unless hospitals have isolation or forensic units, they cannot deal with that person because they present a danger.”

A second way mentally ill people come into her courtroom, said White, is under the Mental Health Act when a friend or family member is making an application to have them put into a hospital.

While more civil court than criminal, the judge said it is still a very challenging and emotional hearing to go through for those making the application.