A high-profile court case that had a unique conclusion in Kingston this month, has reintroduced the concept of mental-health capping provisions in criminal law.
The disposition, which is being lauded by defence counsel, saw former Saturday Night Live and Second City cast member Tony Rosato confined to a mental hospital for a fixed time, instead of being warehoused indefinitely. The actor was on trial in the eastern Ontario city on a charge of criminally harassing his wife, Leah.
“This is a message to Parliament to go and resurrect the capping provisions,” says Rosato’s Toronto lawyer Daniel Brodsky.
Rosato has been diagnosed with Capgras syndrome, which causes sufferers to believe their loved ones have been replaced with imposters. He had been in Quinte Detention Centre awaiting trial since 2005 - more than 800 days, which is the equivalent of a manslaughter sentence once pre-trial credit is applied.
His four-week-long trial, which was attended by show-business personalities including Kingston’s Dan Aykroyd, ended abruptly during the first week of September after a week of closed-door discussions between Brodsky and assistant Crown attorney Priscilla Christie.
What resulted was an unusual joint submission that saw Rosato found guilty, but his conviction immediately put aside with a judge’s order that he be confined to a mental hospital in Kingston for no more than three years.
If the mental disorder he suffers from - one that caused the 52-year-old actor and comic to terrify his 30-year-old wife and the couple’s infant daughter - is not under control by then, he will leave the criminal system and be recommitted civilly.
The judge’s ruling also requires Rosato’s psychiatric history be made available to the parole officers who will supervise him so they can draw up a treatment plan for him.
The ruling opens a door for lawyers who would like to have their clients declared not criminally responsible on account of mental disorder but who are reluctant to do so, as such a ruling potentially subjects their clients to an open-ended sentence in a psychiatric hospital, in which they might spend more time than if they had pleaded guilty to the crime with which they are charged.
Several years ago, Parliament passed capping provisions that would limit the time an offender found not criminally responsible would spend in a mental hospital, but they were never proclaimed into law. At the close of the trial, Brodsky said the verdict sent a political signal to Ottawa that the capping provision should be revisited.
Brodsky, who is one of the founders of the Association in Defence of the Wrongly Convicted and who does half his practice in mental-health law, also said the ministry should set up provincewide, coordinated, regional, mental-health courts similar to the full-time dedicated one that exists in Toronto.
“The province itself isn’t regionalized, and it has to be,” says Brodsky.
The courts, in which Crowns and defence lawyers are specially trained in mental-health law work, should exist across the province so that future defendants don’t languish in a provincial lockup like Rosato, he says.
Currently, the only full-time court dedicated to mental-health issues is at Toronto’s Old City Hall. A handful of sporadic, part-time programs exist elsewhere, for example in Ottawa, but “the gaps between them are as large as the Grand Canyon,” he says.
“This is not a big cover-up or conspiracy case, it’s just a case that’s dragged on far too long,” he said.
On his way to trial, Rosato released seven prior defence lawyers, some of whom did not have experience in criminal law and several of whom told the court that they could not work with the deeply delusional Rosato.
During an abortive 11(B) application brought by Brodsky, arguing that his client’s Charter right to a speedy trial had been violated, Christie argued that the defendant himself bore much of the blame for delaying the eventual trial.
This is not a case of unreasonable delay, she told Superior Court Justice Gordon Thomson. “It’s a case about Mr. Rosato exercising his Charter rights. They keep him behind bars - that’s the tragic irony of this case.”
The 11(B) application was abruptly ended by Thomson, who ordered the lawyers into discussions in chambers with veteran Kingston Justice Tom Lally, where the joint submission was hammered out. Brodsky reserved the right to resurrect that pre-trial motion if his client was found not criminally responsible.
He says the case - a “garden-variety” criminal harassment that stretched on for nearly three years - could have been resolved in a couple of days at a mental-health court. “This is a case that demonstrates you need one or two prosecutors specially trained in the sections of the Criminal Code.”
Reaction to the Rosato decision by those in the mental-health and criminal justice fields was both swift and positive. While Rosato terrified his wife by claiming she was an imposter, that he was under attack by aliens who were planting subliminal suggestions in his brain, and surrounded his infant daughter with crystals to try to keep her safe, there were no allegations he physically harmed his family.
There is little doubt Rosato is mentally ill - a rambling and paranoid one-hour monologue when he testified at the end of the trial offered proof of that - and advocates for both prisoners and the mentally ill say the place for him is a hospital, not a jail.
It’s a creative use of the probation order,” observes Frank Addario, a Toronto trial lawyer and president of the Criminal Lawyers’ Association. “Obviously, there’s no public interest in having this man in jail. The best protection for the community will come from successful treatment. The correctional system is not geared in any way to provide that,” he says.
Likewise, Craig Jones, executive director of the John Howard Society of Canada, notes that the mentally ill face a tough time in prison, as they annoy fellow inmates, cause extra work for the staff, and carry a stigma.
“These people are very vulnerable among the general population of Canadian prisons,” Jones says. “Anything that keeps the mentally ill out of the prison system is a progressive move,” he adds.
Michael Bay, a Toronto lawyer who specializes in mental health, is an associate psychiatry professor at McMaster University and a founding chair and CEO of the civil Consent and Capacity Board for its first seven years, calls the prosecution of Rosato “a disgrace.”
“What you do in this situation is commit him under the Mental Health Act,” he says. “You don’t take a person with a mental illness and cage them.”