Ontario won't fight judge's ruling
It's illegal to jail accused awaiting psychiatric assessment, jurist told province in recent Ottawa decision
Jake Rupert
The Ottawa Citizen

Wednesday, December 15, 2004

The Ontario government has decided to abandon its legal battle and instead fix serious problems involving mentally ill people charged with crimes who are being held in jail pending psychiatric assessments.

Last month, an Ottawa judge declared the widespread practice unconstitutional and illegal. Ontario Superior Court Justice Robert Desmarais gave the government six months to straighten out the situation, which has led to a host of grim incidents at the Ottawa jail.

Many, including the defence lawyer who brought the motion, felt the government would appeal the decision, even if only to buy more time. But yesterday, a spokesman for the Ministry of the Attorney General said there will be no appeal.

"After careful consideration by senior counsel in the ministry, a decision has been made not to appeal," said Brendan Crawley.

Instead, he said, a committee consisting of staff from the attorney general, health and corrections ministries are currently looking at ways "to address the issues that were identified in this case.

"The government is committed to the fair and compassionate treatment of mentally ill persons in the criminal justice system," Mr. Crawley said.

Will Murray, the defence lawyer who brought the motion in front of Judge Desmarais on behalf of two clients who were held at the jail pending assessments, said: "I think the government has made a great and brave decision not to appeal this ruling. Getting on with addressing the problem is the right thing to do for the citizens of our country and these people.

"I hope they are sincere that they are going to fix this problem. We will see in six months. It's too bad these people, my clients, had to spend time in jail for the point to get across."

Michael Davies, a defence lawyer who represents many mentally ill people, said he was pleased the government was doing the right thing on this issue, but that coming up with more resources for such people is long overdue.

"It unfortunate that governments have to wait for judicial rulings until they do something," he said. "The government has known for a number of years that this was a serious problem, and it didn't do anything until a judge told them to act.

"It's as if politicians in this country have given up on solving problems until after a judge tells them to do something. It's about time they started doing the job which they were elected for." He said the announcement will do little to help the people who have suffered a great deal as a result of the practice, which is still in use at the Ottawa courthouse and others around Eastern Ontario.

Judge Desmarais made the ruling following a motion brought by Mr. Murray in March 2003 on behalf of two mentally ill men charged with crimes, whose treatment was, and is, typical.

When they were brought to court, concerns about the mental health of Abdi Hussein and Ronald Dworkin were raised after they were briefly examined by a forensic psychiatrist.

As per the Criminal Code, judges ordered the men to undergo psychiatric assessments at the Royal Ottawa Hospital's forensic unit to determine whether they should be in the justice system at all. But the unit was full, as it had been for years, and is still.

As has become standard procedure, the men were taken to the Innes Road jail and put on a waiting list until a bed opened up at the hospital. Mr. Hussein and Mr. Dworkin spent 29 days and 32 days respectively in custodial limbo before being transferred to the hospital.

After they were assessed by mental health professionals at the hospital, both were found not criminally responsible for their actions due to major mental illnesses.

This means they were so sick at the time of the alleged offences, neither could appreciate the gravity of his actions or that these actions were wrong. They were taken out of the justice system and came under the umbrella of the mental health system, as are people who are found to be too sick to stand trial after assessments.

Mr. Murray argued there is no legal authority under any Canadian law, including sections of the Criminal Code dealing with the mentally ill, that would allow government officials to jail people pending court-ordered psychiatric assessments.

He asked Judge Desmarais to declare that the practice amounted to breaches of peoples' Charter of Rights guarantees not to be detained arbitrarily and to life, liberty and security of a person, and is, therefore, illegal.

Lawyers from all concerned ministries argued against the motion on a number of grounds.

The judge rejected these arguments and agreed with Mr. Murray: the practice was illegal. At the root of the problem, the judge found, were too few beds at the hospital to do court-ordered assessments, but he found this is no excuse to jail people and gave the government six months to clean up the situation.

They have five months left, and whatever is done will come too late for several people.

James O'Brien, 59, a man with schizo-effective disorder, including paranoia, delusions and hallucinations, died in November 2003 at the Ottawa jail. Mr. O'Brien, who had no criminal record, was at the jail after biting the top of a fellow patient's head at the Cornwall hospital's psychiatric wing.

He'd become convinced that if he didn't eat his ward mates, the world would end.

A coroner's jury looking into his death recommended earlier this year that mentally ill people never be brought to jails. Instead, a proper holding facility was needed or they should be detained in hospitals with police guards, the jury found.

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

Mr. Labelle was at the jail after allegedly slashing his mother's throat while on a pass from a psychiatric hospital. Two days before he allegedly killed Mr. Hatton, a Crown attorney suggested he be assessed to see if he was even criminally responsible for the attack on his mother.

His case is yet to go to trial.

Another example of just how ill-equipped jail staff are to deal with mentally ill people came earlier this year when Richard Quarrington, 45, a man 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.

Eventually, he was ordered to undergo forced psychiatric treatment by a judge for "humanitarian reasons." After this, he was fine, and the Crown stayed the charge against him.

These are the extreme examples. Harder to gauge is the damage done to people like Mr. Dworkin and Mr. Hussein. Dozens of these people each year are collectively jailed years on alleged crimes that would never attract a custodial sentence, even if they were guilty.

 The Ottawa Citizen 2004