Protecting mentally ill offenders
Many fear the justice system will fail to meet a judge's deadline to stop jailing society's vulnerable

Jake Rupert

The Ottawa Citizen

Saturday, May 07, 2005
CREDIT: Wayne Cuddington, The Ottawa Citizen
Will Murray is the defence lawyer who successfully argued the original case on behalf of a man being held while awaiting psychiatric assessment. Although Mr. Murray approves of the new resources toward some mentally ill patients, he's worried that not enough is being done to improve hospital forensic services.

With just days to go before a court-ordered deadline, the Ontario government's plan to keep mentally ill people out of jail pending psychiatric assessments is incomplete and possibly doomed to fail.

Jailing mentally ill people was ruled unconstitutional by Ontario Superior Court Justice Robert Desmarais last November, and he gave the government half a year to fix the long-standing problem.

At the heart of the issue, the judge found, was a lack of space at the Royal Ottawa Hospital's forensic unit to do court-ordered in-custody forensic assessments to determine if people are too sick to stand trial or be held criminally responsible for their actions.

When the unit is full, as it has been for years, these people have been held in jail until space opens up at the hospital, and the results can be fatal. One man waiting to be transferred to the hospital died at the Innes Road jail. A coroner's jury found that anyone with mental ailments should never be held at the jail.

Another man who was being held at the jail pending an assessment is accused of murdering his cellmate. A later assessment found the man was so sick he couldn't even be held criminally responsible for the crime for which he was being held at the jail in the first place.

Another mentally ill man spent six months at the jail for no reason without anybody being notified. After treatment, this man was fine. And dozens of others per year have done periods in jail on minor crimes that wouldn't attract custodial sentences even if they were convicted. During these periods, their mental health problems often deteriorate dramatically.

Since the ruling, the three ministries affected -- Corrections, the Attorney General, and Health -- have been working on many fronts to comply with the ruling and improve the situation for all mentally ill people who commit crimes. Investments have been made in programs designed to lower the demand for the beds, court procedures have been streamlined, and there have been changes designed to have the assessments done faster at the hospital.

But no new money has been invested in the forensic facility.

On Wednesday, the six months is up and, with no new room in the forensic unit, the outlook is uncertain. Indeed, large parts of the government's plan to help these people stay out of jail pending assessments are not yet functioning.

Dr. John Bradford, head of forensics at the hospital, where these assessments are done on mentally ill offenders from across Eastern Ontario, isn't convinced the plan will work.

Defence lawyers who represent these people say it's a stop-gap approach and are worried the rights of vulnerable people could be abused in an attempt to make it work.

Will Murray, the defence lawyer who successfully argued the original case in front of Judge Desmarais, says any resources directed towards these vulnerable people is a good thing and only time will tell if the current plans are successful.

But based on what is known about the plans, he's worried that with no new money for forensic services at the hospital, the situation will continue.

"It's not a satisfactory solution to the problem," Mr. Murray said. "Justice Desmarais' ruling was very clear: The practice that has been in place in Ottawa is illegal. The most significant problem is an insufficient number of secure forensic assessment beds in view of the demand.

"We'll see over the next few weeks and months if enough has been done but I believe that, on May 10, or soon thereafter, there will be a waiting list for assessment beds."

If there is, Mr. Murray says defence lawyers are considering a number of potential options, including asking judges to stay charges rather than allowing their clients to be jailed illegally.

In the past, and until last week, people charged with crimes whose mental health was in question were ordered by courts to the forensic unit for assessments. But when the unit was full, which was almost always, they were taken to jail to wait for a space at the hospital to open up -- sometimes for months. Furthermore, frequently after assessments, it's found they're so sick, they shouldn't be involved in the justice system at all.

Mr. Murray argued there was no authority under any law allowing these people to be held in jail and the judge agreed. The province, which had argued against the judge's findings, chose not to appeal the ruling, and, instead, pledged to work to comply with the decision.

In January, Ontario's Health ministry announced a $27.5-million annual infusion into programs dealing with psychiatric patients across the province who face detention -- $3.6 million a year in eastern Ontario alone.

The money is going to programs designed to help mentally ill people caught up in the justice system with the goal of taking as many as possible out by offering alternatives to jail.

The Crown attorney's office in Ottawa has also revamped procedures for dealing with such people in order to speed up the process.

But after studying the situation and changes, Mr. Murray's concerns are echoed by Dr. Bradford.

He said that generally, in eastern Ontario, there are 10 to 12 people with mental health conditions sitting in jail awaiting assessment at his 16-bed unit.

At times, there are as many as 22 to 26 people in this situation. At other times, it's as low as three or four, as it was last week. Dr. Bradford said the number tends to fluctuate and can go from low to its maximum in a week.

The doctor said the judge's ruling brought a welcome focus and money to an issue that he's been struggling with for 10 years.

He said he has no doubt the new programs will help many people struggling with the debilitating effects of mental illness, but he worries he still won't have enough room to accommodate those ordered to his facilities for assessments.

"It's positive that this is happening," he said. "These are valuable programs, and they will have an effect on these people."

But as for people being held in jail pending assessments, he said, the new programs may or may not make a difference, and that, "my gut feeling is we still need more beds."

Under the government's plan for Ottawa and eastern Ontario, the Canadian Mental Health Association received $420,000 to greatly expand its court outreach program, which provides support for people with mental health problems who get charged with crimes.

Currently, two workers deal with all of these people. The program will be expanded to 10 people, including an intake officer, staff to give short-term support to those charged, long-term intensive case managers, and workers for people requiring less intensive supervision.

The mental health association also got $259,000 to subsidize long-term housing for people suffering from mental illness.

The Ottawa Hospital's mental health crisis unit received $297,500 to create an indefinite number of short-term crisis beds for people experiencing difficulties.

Bruce Kennedy, the crisis unit's leader, said the amount of money is not enough to create permanent beds. Instead, he said it will be used to purchase accommodation for people experiencing mental health problems at community facilities where security and supports are provided.

He said people who qualify for the program must not have committed a violent offence or have a history of violence. Instead, it would be available for mentally ill people accused of creating a disturbance or other minor crimes.

These people could be stabilized over a duration of days, then moved into other programs where long-term supports are offered, Mr. Kennedy said.

The rest of the money is going to similar support programs in other cities in eastern Ontario.

The overriding idea behind these initiatives, says the CMHA's Ottawa branch director, Marion Wright, is that alternatives to having such people continue in the justice system and jail will be available from the minute they come into contact with police.

Ms. Wright said police, Crown attorneys, justices of the peace, defence lawyers and judges can be assured that, if they consent to releasing a person on bail pending an assessment, the person will get the help they need to reduce the risk they pose to society to an acceptable level.

"The overall goal is to reduce the strain that exists on both the courts and hospitals by providing treatment, support and rehabilitation in the community for individuals with mental illness who come into contact with the justice system," Ms. Wright said.

One problem with this, however, is that most of these new services aren't up and running, and won't be for months. The plans were only approved in March, the workers haven't been hired, and the crisis beds aren't available.

The other problem is that most of these programs assume the person charged will be released from custody. This type of person wasn't the focus of Judge Desmarais's ruling. His ruling focused on mentally ill people who are being held in custody pending assessment and possible treatment for fear they are a danger to themselves or others if released.

Other aspects of the government's plan to deal with the problem of holding people in jail pending assessments are designed to cut down on the time it takes to do the assessments, and to get those deemed unfit for trial stable and fit enough to go to court.

Dr. Bradford said that after the judge's ruling, the province hired Dr. Stephen Hucker, a forensic psychiatrist with vast experience, to conduct a review of how forensic assessments are done across the province.

The results showed the situation was most acute in Toronto and Ottawa, and that the Royal Ottawa Hospital takes longer to do the assessments than any other forensic program.

To fix that, plans are in place to bring a uniform approach to assessments and to get them done quicker, particularly in Ottawa.

Included in this is a Crown move to seek faster hearings for fitness to stand trial, and treatment orders for those deemed unfit to stand trial, so they can be stabilized and tried.

"We will monitor the procedure and adjust if difficulties arise," Ottawa's Crown attorney, Hilary McCormack, said in a memo outlining the new procedures.

Dr. Bradford said many of the new protocols have been in place for a couple months, and he hopes the current relatively low number of people waiting in jail for assessments may be the result of the changes.

However, he said he worries about the possible results of being "more efficient."

"It can lead to pushing more people out the door sooner than we would like," he said.

It could also lead to violations of the constitutional rights of mentally ill people charged with crimes, says defence lawyer Heather Perkins-McVey, who specializes in the area.

She said forced treatment directives are drastic measures that, according to law, shouldn't be ordered until several criteria are met, including having medical evidence showing the treatment will work, and that it's the least intrusive option.

In certain cases, she says these determinations can be done quickly but, often, several days of examinations must be performed before doctors can reach these conclusions.

Attempts to speed things up may lead to ill-considered opinions that aren't grounded in medical evidence, she said.

"There's a reason why there are two separate sections of the Criminal Code that set out the strict criteria for these orders, and that's to protect the rights of the accused," she said.

"I think that if we have a policy that, on each and every occasion, the Crown will seek a treatment order, it will be the responsibility of defence counsel to protect the rights of the accused."

This is what Mr. Murray was doing in the first place, and it formed the logic underpinning Judge Desmarais's ruling, which was the first of its kind in Canada and is binding on all Ontario courts.

He 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 in the justice system was 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, and they were taken to jail.

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 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 and where treated, 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 the practice amounted to breaches of 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.

The new systems are the result of this ruling but, even if they are very effective at achieving their goal, all this comes too late for many people, including two whose lives were lost.

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 last year that mentally ill people should 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, 31, a man with a history of mental illness and violence, was charged with murder.

Mr. Labelle was at the jail after 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.

After the killing of Mr. Hatton, Mr. Labelle was taken to the hospital and assessed to see if he was too sick at the time of the crimes to appreciate the gravity of his actions.

Last winter, with the help of the assessment report, Ontario Court Justice Gilles Renaud ruled that, due to the accused's sickness, the 31-year-old couldn't appreciate the gravity of his actions and was therefore not criminally responsible for his crime.

The murder case for the alleged killing of Mr. Hatton is still before the courts, and Mr. Labelle's criminal responsibility is an issue in that case too.

Another example of just how ill-equipped jail staff are to deal with mentally ill people came last year when Richard Quarrington, 46, 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 the dozens of people like Mr. Dworkin and Mr. Hussein, who, each year, are collectively jailed for years on alleged crimes that would never attract custodial sentences, even if they were guilty.

In his ruling, Judge Desmarais noted that in jail these people "often suffer" threats of violence, assaults, stress, fear, confusion, uncertainty and improper treatment and care, all of which increase the severity of their psychiatric problems.

The judge noted that the same problem existed 21/2 years ago, and came to an obvious conclusion.

"In the context of this case, it would be appropriate for the (government) to ensure that there are a sufficient number of secure beds available in order to comply with the provisions of the Criminal Code," he said.

The government has responded by not increasing the number of beds.

 The Ottawa Citizen 2005