Mentally ill wait in jail for justice to be done
Judge fails to rule on legality for 20 months
Jake Rupert
The Ottawa Citizen

Wednesday, November 10, 2004

When it comes to dealing with mentally ill people charged with crimes, Eastern Ontario's justice and mental health systems appear to be past the point of crisis.

Two men are dead; one was forgotten in jail for six months; another is too sick to stand trial for murder.

People who suffer from mental illness and are charged with crimes are, collectively, spending years in jail waiting for hospital beds to open up so they can be assessed to see if they should be in the justice system at all.

After hearing two days of evidence from frustrated lawyers, jail officials and mental health professionals last week, a coroner's jury looking into the Nov. 5, 2003, death of James O'Brien, 59 -- who had schizo-effective disorder and died at the Innes Road jail -- weighed in.

The jury recommended that jails should not be used to house mentally ill people charged with crimes as they wait to get into the Royal Ottawa Hospital for assessments on criminal responsibility and fitness to stand trial.

This is the position Mr. O'Brien was in when he died.

What the jury didn't hear, however, was that before the deaths of Mr. O'Brien and Robert Hatton, who was allegedly killed last year by a mentally ill man at the jail, an Ontario Superior Court judge had been asked to declare illegal the practice of using the jail to house these people.

The jury was unaware that Justice Robert Desmarais, who heard the argument 20 months ago, has failed to render a decision -- despite being well over the time generally allotted for judges to make such rulings.

"This was a long-standing problem, and this motion should have helped clarify its legality," said defence lawyer Will Murray. Mr. Murray had brought the motion in front of Judge Desmarais on behalf of two mentally ill clients who were jailed for weeks awaiting assessment beds at the hospital.

These assessments are generally done at the Royal Ottawa Hospital's secure 16-bed forensic psychiatry facility.

But, as is now commonplace, after judges ordered the assessments, the two men were held in jail while waiting for a spot to open up at the hospital.

Abdi Hussein and Ronald Dworkin spent 29 days and 32 days, respectively, in custodial limbo.

Mr. Murray argued there is no legal authority under any Canadian law that would allow government officials to do this. He asked Judge Desmarais to declare that the practice amounted to a breach of peoples' Charter of Rights guarantees not to be detained arbitrarily.

Lawyers for the Attorney General's office, led by Shawn Minnis, admitted the situation wasn't optimal, but argued that such delays were reasonable.

Mr. Minnis argued it was unreasonable to expect a bed to be available all the time in case a judge ordered an assessment, and accused Mr. Murray of bringing the application in bad faith.

He said the case was a thinly veiled judicial review of the province's funding for forensic psychiatric beds.

These arguments were completed 627 days ago. At the time, Judge Desmarais said he would release his decision in 30 to 40 days.

Last week, the judge's secretary said she's been reminding the judge that the decision is outstanding, but that he hasn't got around to finalizing his ruling. Judge Desmarais could not be reached for comment, and no explanation was given for the delay.

The ruling is expected to be released within days, according to a justice system official, who asked not to be identified.

The delay in the ruling is a problem in two significant ways.

First, mentally ill people charged with crimes are still being held at the jail awaiting court-ordered psychiatric assessments -- often waiting weeks for a bed to open up while accused of relatively minor crimes that would never attract a jail sentence.

Second, by not making a ruling for so long, Judge Desmarais appears to be running afoul of the law governing the length of time judges are given to make rulings.

Last week, Royal Ottawa Hospital doctor Reguvaran Kunjukrishnan testified in court that 21-year-old Christopher Baldwin (charged with murder for allegedly strangling Diana Keeney, 34) and another man needed to be assessed to see if they are criminally responsible for their alleged actions.

Dr. Kunjukrishnan had interviewed the men at the courthouse and came to the conclusion they have psychiatric issues that needed to be explored.

Crown and defence lawyers in both cases suggested to Ontario Court Justice David Dempsey that 30-day assessments were needed.

The judge agreed, but the doctor suggested extending the period for assessment to the maximum of 60 days allowed under the Criminal Code.

Dr. Kunjukrishnan explained that there were currently 14 people being held at the jail waiting for a bed to open up. He said each of these people would have to wait five to six weeks until there was room at the hospital, so getting the assessments done in 30 days wasn't possible.

The judge showed some concern about this length of time, but he made the order. The next court appearance for both is set for Dec. 30, when the next step will be decided.

By Friday, the waiting list to get into the hospital was up to 17 people.

There have been times when assessments can't even be done inside the maximum 60-day window.

In the many cases in which people are quite sick, lawyers, Crowns and judges are forced to extend the assessment-order window past what is legally allowable. In other cases, the accused plead guilty without getting an assessment so they can get out of jail.

At Mr. O'Brien's inquest last week, jail staff, mental health professionals, justice system officials and others all testified that the jail is not equipped to deal with these people. For many of them, their crimes are so minor that they would not spend a day in jail if they were convicted.

Mr. O'Brien's case is a good example of this.

The Cornwall man lived with his mother and was under doctors' care for his illness, which caused him delusions, paranoia and large mood swings.

In the summer of 2003, he deteriorated mentally and physically. The 5-foot-10 man ballooned to 306 pounds, possibly as a side-effect from the antipsychotic medication he was taking.

In the fall, he was suffering visual and audible hallucinations, became seriously paranoid and was admitted to the Cornwall Hospital's psychiatric wing. He also had a host of physical health problems due to his weight.

By Nov. 3, 2003, his mental state was so bad he felt that if he didn't eat the other patients on the wing, the world would come to an end. He grabbed a woman who was on the ward, and started biting the top of her head, the inquest heard.

The attack was stopped by hospital staff and Mr. O'Brien was put in restraints.

The next day, the woman's husband was told what happened, and he complained to police.

A debate ensued. Doctors didn't want Mr. O'Brien charged, but for safety reasons it was decided he should be charged, with the idea that he be brought as soon as possible to the Royal Ottawa Hospital's forensic unit.

Mr. O'Brien was taken into custody and, in court the next day, justice system officials were confronted with a familiar problem.

It was Mr. O'Brien's first alleged offence, the man was clearly sick, the forensic unit was full and a bed wouldn't be available for weeks.

Although a healthy person would never be held in custody for such an offence, it was decided that Mr. O'Brien would be remanded to the jail for two days; a suitable place would then be found for him to live until an assessment could be done.

Police officers who transported him from the Cornwall courthouse to the jail said he was clearly ill and at times didn't know who or where he was. He also arrived at the jail with no medical records.

On the evening of Nov. 5, he was found in a catatonic state and was eating styrofoam cups. His body and his cell were smeared with diarrhea.

Medical staff and guards convinced him to shower, and he was placed under the stream of water, where he stood motionless.

After a couple minutes, guards heard a thud and saw Mr. O'Brien on the floor. He had struck his head against a concrete bench but appeared OK, and was returned to his cell.

He curled up on the floor and fell asleep, snoring. At 10:06 p.m., his snoring abruptly stopped. Medical staff and guards were there in seconds, but couldn't revive him. The coroner's jury found the cause of death was undetermined, as per the autopsy.

The jury's recommendations on how to avoid something like this from happening again amount to an indictment of current practices.

The jury said if police insist on charging a mentally ill person and holding them in custody, these people should be detained in mental hospitals with police guarding them -- not in jails.

Furthermore, they recommended that sick people should never be brought to jails and, if this continues, a specialized unit at the jail should be built and staffed with mental health professionals.

Mr. O'Brien was not the first to die in such circumstances.

On June 8, 2003, Robert Hatton, 46, was found dead. His cellmate, Daniel Labelle, 29, who has a history of mental illness and violence, was charged with murder.

Mr. Hatton was a convicted pedophile in jail for breaching release conditions. An autopsy showed he died of asphyxiation; there were signs of trauma on his neck.

Mr. Labelle was in custody at the jail since January 2003, after he was charged with the attempted murder of his mother, Diane Labelle, who had her throat slashed with a box cutter in her Leonia Street home in Cornwall.

At the time, her son was serving a conditional sentence for possession of marijuana for the purpose of trafficking and had been living in a psychiatric facility following a suicidal episode.

After his arrest for attacking his mother, he had a brief psychiatric examination and was declared fit to stand trial.

However, at a court appearance on June 6, a Crown attorney raised the possibility of having Mr. Labelle undergo a court-ordered psychiatric assessment to see whether he was suffering from a major mental illness at the time of the attack --which could alleviate criminal responsibility for his alleged actions.

This didn't happen because, in the middle of the appearance, Mr. Labelle unexpectedly fired his lawyer. The judge then gave Mr. Labelle two weeks to hire a new lawyer and he was returned to the jail. He was put in a cell with Mr. Hatton -- who was dead two days later.

Mr. Labelle's case is yet to be dealt with in court or at the coroner's inquest that will follow where, yet again, questions surrounding the treatment of mentally ill people will be raised.

A month ago, Rehan Kurd, 33, who is facing a first-degree murder charge for allegedly killing a friend, was found unfit to stand trial due to mental illness and ordered to undergo 60 days of forced treatment.

Mr. Kurd, who has a long history of mental illness, had originally been found fit to stand trial for the killing, but had deteriorated so badly while being held in jail awaiting trial, forensic psychiatrists found he couldn't even understand the basics of the court system or communicate with his lawyers.

Another example of how ill-equipped jail staff members are for dealing with mentally ill people came this year when Richard Quarrington, 45, who was arrested on a minor charge, spent six months in jail without being brought to court or his lawyer or family members being notified.

His plight was exposed when, at the request of jail guards, Dr. Kunjukrishnan examined the man and found him to "be obviously suffering from a major mental illness."

Mr. Quarrington was eventually ordered by a judge to undergo forced psychiatric treatment, for "humanitarian reasons." Sixty days later, with help from doctors and medication, he was OK, and the Crown stayed the charge against him. At the time, mental health officials, lawyers and civil liberties advocates called the situation abhorrent.

In his motion to Judge Desmarais in the Hussein and Dworkin case, Mr. Murray went one step farther: He alleged that what is being done is illegal.

According to Ontario's Court of Justice Act, a judge has six months to render a decision in such a case. If the judge needs more time, he must ask the chief judge for an extension. A further extension can be granted after that. The act does not set out a maximum extension period.

If the judge still fails to give a decision, the chief judge must report the situation to the judicial council, which oversees the conduct of judges. Also, the parties can apply to have the matter heard again.

Paul Evraire, counsel to Chief Justice Heather Smith, wouldn't say whether extensions have been granted and wouldn't comment on the case.

Assistant Crown attorney Donna Eastwood, who has been monitoring the situation for the Crown, wrote a letter to Judge Desmarais this spring, asking when the ruling would be released. She received no answer.

With eight cases having been processed over the weekend, as of yesterday, nine mentally ill people continued to be held at the Ottawa jail. All were waiting for a bed at the Royal Ottawa Hospital's forensic unit to open up.

"The detention centre isn't geared to deal with all of their issues," Mr. Murray said. "People with a mental illness often suffer significantly while in jail waiting for their psychiatric conditions to be assessed."

 The Ottawa Citizen 2004