Speaker's Corner: A mental-health lawyer’s wake-up call to the profession

In September, the federal prison ombudsman wrote that Corrections Canada was warehousing people with mental-health disabilities and that “Canadian penitentiaries are becoming the largest psychiatric facilities in the country.”

Then in October, the Toronto Star discussed how an accused person’s mental health had deteriorated to the point where he pushed children in front of a subway car. At the same time, our society puts people with mental-health disabilities and addictions in municipal shelters. On average, my clients have been homeless for seven years before I meet them.

We should question why so many people with mental-health disabilities end up in prison. As a front-line criminal lawyer who works with individuals with serious mental-health and addiction issues, I find that many systems have failed my clients before their arrest.

All of my clients should be on disability assistance and in supportive housing but are unable to manage the application processes. Most of my clients have been repeatedly and involuntarily hospitalized and have spent large parts of their lives in jail often for issues like assault, possession of small amounts of drugs, theft under, and a multitude of breaches.

There are so many people with mental-health disabilities that it’s difficult to find a hospital bed for accused found to be unfit. Every week, unfit accused who need treatment go to detention centres because all of the hospital beds are full.

Last year, one of my clients spent three months in detention before entering the Centre for Addictions and Mental Health. During that time, his mental health deteriorated. The amount of time he spent in detention was unusual, but the need to wait in jail for a bed is not. The point is that not only are we warehousing mentally ill people but we’re doing it badly.

While many public programs fail to accommodate individuals with mental-health issues, I also believe we should be asking questions of everyone in the criminal justice system, including defence lawyers. As lawyers, we need to re-examine how we work with accused who live with mental-health issues.

To begin with, a very large proportion of such people end up in prison for minor criminal charges. Many go to jail for breaching their bail or probation conditions, nuisance charges like screaming at real or imaginary people, threatening to harm someone, fighting or possessing small amounts of drugs. But it’s important to note that many of my clients live with both mental-health issues and addictions, something called concurrent disorders.

They’ve ended up in prison because the legal system didn’t recognize the complex nature of their disabilities. In many cases, neither the defence nor the prosecution thought about whether it was possible to both resolve the immediate charge and help create the conditions in which the accused might stabilize enough to stop the cycle of recidivism. Often, the actual resolution to the charges creates new problems.

As a result, every month the system releases hundreds of long-term alcoholics on bail conditions that prohibit consuming alcohol. They then get drunk and are charged with breach of recognizance bail. Others, who in some cases have serious trouble remembering what day it is, are routinely put on reporting probations. When they don’t show up at the probation office, they’re charged with a breach and rearrested.

In my experience, most Crown attorneys and judges understand the counterproductive nature of legally prohibiting a long-term alcoholic from drinking or requiring a cognitively impaired accused to report to a fixed-date probation. If I can present a reasonable alternative, most will agree to it.

This requires me to think outside the box. In a recent case, a client with organic brain damage was convicted of assaulting a police officer by spitting on him. The court and the Crown agreed that my client wouldn’t have to go to the probation office every month but instead would meet with a social worker three times a month.

The court system has also established diversion programs. Through them, an accused agrees to work with the court’s mental-health support workers for six months or more. Those workers help clients find doctors, housing, and support programs and learn to live within socially safe behavioural parameters. My clients who have successfully concluded mental-health diversion have a lower rate of recidivism than those who haven’t gone through it.

The problems in this area are compounded by the utterly counterproductive division between lawyers who help clients with things like the Ontario Disability Support Program and those who work only on criminal charges.

It’s absurd to document a client’s mental-health disabilities for the purposes of support programs and not help the same person by using those reports to support an application for mental-health diversion in court. It’s equally absurd for a criminal lawyer to defeat or plead criminal charges for such clients without helping them get disability income or stable housing.

The Charter of Rights and Freedoms and every human rights code in Canada establish a statutory duty to accommodate an individual’s disabilities. In principle, this also applies to how lawyers and Legal Aid Ontario provide legal services.

Our standard paradigm assumes that someone comes to an office and asks for help with a particular legal problem. It presupposes that the individual has some kind of paperwork, is able to come to the office, and understands the nature of the problem and that, with assistance, it can be addressed. The same presumptions apply to all forms of electronic applications. My clients can’t do these things.

My practice is based on accommodating my clients’ disabilities. For more than a decade, I have provided predictable office hours in three major drop-in centres in Toronto. I go to where my clients receive other supports so that I can work with them and their service providers.

In recognizing that it’s ridiculous to address one legal problem without trying to resolve other outstanding dilemmas, I have attempted to provide one-stop shopping for my clients.

Over the years, I have also learned that for each client, I need to consider the sustainability of the legal resolution. A steady stream of repeat problems increases the misery in my clients’ lives and wastes amazing amounts of systemic resources, including legal aid dollars. When my clients are more stable, their lives are better and they’re less likely to annoy the public.

In the end, I believe that a resolution to a criminal justice case becomes a fiction if it’s not sustainable. In order to achieve a better result, the person needs to be able to establish enough stability to stay out of conflict with other people.

If people don’t receive disability benefits, they won’t have enough money to sustain housing. If they don’t have housing, they end up homeless. If they end up on the streets, their mental health deteriorates and their use of drugs and alcohol increases.

When their mental-health issues and addictions become more acute, their behaviour often deteriorates until they’re arrested again. This process increases the pain my clients live with and costs the taxpayers a fortune in emergency policing, health care, and housing services.

But rather than address the intersections of these problems, we’re warehousing poor people with mental-health issues in prisons and shelters.

If Charles Dickens’ Tiny Tim lived today with perceptual and cognitive disabilities, it’s likely he’d end up in prison or the shelter system. As a society, I believe we can support people more effectively than in prisons and shelters.

But this will happen only if we’re willing to talk openly about mental health and addictions and our own institutional stupidity. As lawyers, we also need to recognize our obligation to accommodate clients with mental-health and addiction issues so we can be part of the solution instead of the problem.

Sarah Shartal practises at Roach Schwartz & Associates in Toronto.

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