Mental Disorders And The Criminal Code
Submissions To The Standing Committee On Justice And Human Rights: Review Of The Mental Disorder Provisions Of The Criminal Code
The Psychiatric Patient Advocate Office (the "PPAO"), a quasi-independent programme of the Ontario Ministry of Health and Long-Term Care, has been advocating for the strengthening of the rights of persons with serious mental illness since 1983. The PPAO is arms-length of the Ministry and, as such, our views do not necessarily represent those of the Ministry.
With field offices located in the current and former provincial psychiatric facilities, the PPAO has a unique perspective on the effects of Criminal Code (the "Code") provisions and the resulting dispositions within Ontario's mental health system. Forensic patients represent a significant portion of our client-base. We are involved in both individual and systemic advocacy as well as public education. We participate in inquests, work with clients and their counsel in matters involving the Ontario Review Board and facilitate client-centred policies and best practices within hospitals. We are pleased to provide this submission for your consideration as you evaluate the 1991 amendments to the Code.
The submission, below, is a preliminary outline of the PPAO's concerns. We strongly support full, open, public consultations on the 1991 amendments prior to closing the issue. As yet, the federal consultation has not been widely circulated or publicized; the issue note asks very technical questions about the law. Full consultation requires all stakeholders, including persons subject to disposition orders, are made aware of the discussion and are given the opportunity to provide submissions of issues of importance to them. We look forward to presenting more detailed comments at that time.
Introduction
The PPAO, having advocated on behalf of individuals with serious mental illness who come in conflict with the law for a number of years, has serious concerns with the forensic mental health system in Ontario. Many clients have consistently reported frustration with a system that fails to provide individual care, lacks effective rehabilitative programs and removes a sense of hope for vulnerable and ill persons. They report to us that the system is, in many cases, more reflective of a correctional facility than a hospital. Security tends to take precedence over care and treatment, diminishing the value of the Code provisions.
Many of the gaps in the system reflect a changing, over-burdened and insufficient provincial mental health system; however, comprehensive and clearly written federal legislation would help mitigate deficits at the provincial level by requiring certain parameters be met consistently. Ultimately, the federal government is responsible to ensure that the intent of the law is carried throughout its implementation. The law must be responsive to its environment, providing guidelines for consistent application and direction for those charged with enforcement. Where such guidance cannot be provided in the legislation itself, regulation and Justice directives would assist the provinces in their mandate.
The PPAO will group its submissions under these five primary groups: appropriate guidelines and powers for the provincial review boards, sufficient guidelines within the Code for disposition orders, capping of sentences, treatment orders and the stigma attached to persons with serious mental illness created by Code provisions.
Guidelines for Provincial Review Boards
The Ontario Review Board (the "ORB"), though created as a tribunal with expertise specific to the area of mental illness, lacks clear direction from its originating legislation and, as a result, dispositions tend to be inconsistent and often appear overly restrictive. Section 672.54 of the Code requires that the court or ORB make a disposition appropriate in all circumstances that is the least onerous and least restrictive. Unlike other legislation, the Code does not list the specific types of evidence that are essential to finding a suitable disposition. The list need not, nor should it be, exhaustive; however, clear direction should be provided by the Code to ensure accused persons receive the most effective placement and care specific to their circumstances and in the least intrusive environment.
For example, the criteria should include appropriate treatment facilities, proximity to family and other supports in the community and the choice of the accused with regard to location. As rehabilitation and reintegration are listed as elements as important to disposition as public protection, the specific factors relevant to rehabilitation should be articulated in the Code. Appropriate weight of the factors taken into consideration should also be considered by the legislature.
Recommendation: The PPAO recommends that the Code be amended to specify the weight given to each of the factors to be considered in determining disposition and that particular types of evidence to be considered be set out in the section.
In Winko v. British Columbia (Forensic Psychiatric Institute), the Supreme court noted that "the only justification there can be for the criminal law detaining a person who has not been found guilty (or is awaiting trial on an issue of guilt) is maintaining public safety." Despite this decision, and others since (also see R. v. Owen 54 O.R (3d) 257) undue emphasis continues to be placed on the index offence or current inappropriate (but not dangerous) behaviours of the accused. Undue weight is placed on the accused person's diagnosis rather than their current level of risk. The common law created through Winko, requiring disposition bodies to make positive findings of dangerousness should be codified and further clarified through the Code.
Recommendation: The PPAO recommends that the principles outlined in Winko be codified. We further recommend that the section incorporate the theme that the "dangerousness" element be defined and specifically exclude "undesirable" or "inappropriate" behaviour that does not pose an imminent threat.
The PPAO also recommends that a number of procedural matters be addressed that relate to review board hearings:
- That the Code be amended to ensure that regardless whether a facility files with the board a request for a restriction of liberties hearing during the custodial year, the regular annual hearing should proceed. Currently, unless an accused person specifically waives his/her right to a restriction of liberties hearing, the annual hearing does not proceed. It should further be codified that only the accused person has the ability to waive hearings for restriction of liberties. Such waivers must be tied to independent rights advice or legal advice.
- That duty counsel or an amicus curae process be instituted to assist unrepresented accused persons before the provincial board. Duty counsel must not be permitted to interfere with the accused person's right to counsel of choice; however, assistance must be provided to deal with strict legal matters, adjournment requests, appointment of amicus curae, etc.
- That persons with matters pending before the provincial boards should have access to independent rights advice for those with pending hearings, including restriction of liberty hearings.
- That provincial review board hearings include interpreters in the language of choice and that decisions be made available in English and in the language of interpretation at the hearing, upon request.
- That timelines be implemented within the disposition for facility compliance with the provincial review board to prevent the extremely long delays that plague transfer requests.
- That where a court provides a disposition for a person found not criminally responsible of an offence that the provincial review board review that disposition as soon as possible and, in any event, no later than 45 days.
Guidelines for Forensic Facilities
Tremendous discretion is left to the hospitals that provide care. While an appropriate amount of leeway is essential to permit facilities to address local issues, the vacuum of structure has created confusion within the forensic system. For example, there is no clear definition for the type of custodial disposition ordered by the ORB: minimum, medium and maximum secure facilities are defined by the hospital. Subjective interpretation has resulted in inconsistent liberties within class of ward across the province causing some minimum secure level patients to be subject to the same restrictions as those in the "medium" secure wards.
Ontario's mental health restructuring has recently transferred many of the forensic mental health beds from provincial control to the charge of public hospitals. The Ministry of Health and Long-Term Care no longer has the same type of oversight authority that created a united system of legal advice, policy creation and patient rights. Forensic patients no longer have access to the independent complaint mechanism formerly available through the provincial Office of the Ombudsman. As a consequence of the many changes, accused persons are subject to inconsistent and fluctuating policies. Such practices can only hinder rehabilitation and reintegration efforts.
Provincial review boards and courts must have access to clear definitions of custodial care; maximum, medium and minimum secure units vary in restriction levels from facility to facility leading to inconsistent sentencing and potentially overly-restrictive custodial periods.
Recommendation: The PPAO recommends that the Code clearly define levels of custodial restrictions. We further recommend that the Code define the phrase "restriction on the liberty of the accused" to clarify when a facility must apply to the provincial review board for a hearing.
The Code allows provincial review boards significant leeway to delegate authority to hospitals. Although section 672.56 provides for board review following seven days of increased liberties, overly vague dispositions allow for broad interpretation by facilities. This leads to inconsistent dispositions and confusion results: among the board members, the court, healthcare facilities and accused persons. For example, decreased provincial funding has reduced the number of beds available in the forensic system, leading to "housing" of accused persons in jails or in higher secure units.
Further, the forensic mental health system in Ontario has taken on a flavour consistent with correctional institutions rather than a healthcare environment. Accused persons are subject to random searches, restrictions on communications (i.e. telephone use) and freedom of speech. Hospitals rely on the criminal element of the forensic class of patients to institute higher security levels that the accused persons' history and behaviour do not warrant. Ontario's Mental Health Act states, at section 6:
Effect of Act on rights and privileges. -- Nothing in this Act shall be deemed to affect the rights or privileges of any person except as specifically set out in this Act.
A similar provision is necessary within the Code to ensure accused persons are treated with the same respect and dignity afforded to any person who is in need of healthcare.
Recommendation:The PPAO recommends that the Code specify that an accused person's rights are not altered unless specifically stated by the Code or by the disposition. We further recommend that the Board be required to specify conditions of dispositions. In particular, the PPAO recommends that the Board specify the appropriate level of custodial care required and any specific restrictions to an accused person's rights or liberty that may be imposed. Scarce resources must not be used to justify more restrictive dispositions than what must be ordered by the Code: the federal government must demand that provinces supply sufficient beds in minimum secure settings, "half-way" houses and other facilities to ensure accused persons are not "housed" in higher secure settings or in jail.
Capping Provisions
Patients regularly reported being frustrated by an endless stream of ORB decisions that fail to provide for increased privileges and fewer restrictions. The forensic system has become a housing process for those persons that the province is unable to provide effective and appropriate care and rehabilitation. Lack of resources lead to indeterminate sentences. Although a strong, parallel civil commitment process exists for those who remain a danger to others, patients of the forensic system remain for significant periods within the stigmatized criminal process. Where the forensic system demonstrates an inability to effectively care for a person over the period of a capped sentence, other services should be utilized.
The PPAO fully supports the proclamation of the Capping Provisions of the Code. Persons with serious mental illness who happen to come into contact with the law should not be subject to sentences that exceed the maximum time period allowable for a guilty finding. Although the Supreme Court has upheld the constitutionality of the Mental Disorder provisions in the absence of the capping structure, the decision was premised on a mental health system that diligently sought appropriate care and rehabilitation for accused persons and a review process that demanded the least restrictive disposition. However, the current forensic mental health system fails to provide timely and effective treatment options for accused persons. Instead, the process itself allows an accused to be "housed" indefinitely without care or rehabilitation.
Ontario's Mental Health Act provides for a strong, parallel, civil commitment process that permits the province, through treating physicians, to hold a person involuntarily if he or she represents a threat to the public. A person whose "capped" disposition expires and who remains a significant threat to the public may be transferred to the civil system for further care. Continued maintenance in the criminal system is marginalizing and unnecessary. Given the existence of the civil process, the capping provisions could be easily implemented without reliance on simulateous enactment of the Dangerous Mentally Disordered Accused provisions of the Code.
Recommendation: The PPAO recommends that the capping provisions be enacted. We do not support the proclamation of the Dangerous Mentally Disorder Accused provisions.
Treatment Dispositions
The PPAO is seriously concerned with the court ordered treatment orders embodied by the Code in section 672.58. Ontario's Health Care Consent Act deems each person capable of consenting to treatment unless shown otherwise. It also provides for the treatment of individuals who are found incapable of making their own treatment decisions through the consent of substitute decision-makers, regardless of the setting. The Act requires the person consenting to treatment to consider the individual's prior capable wishes and, if none apply, the best interests of the individual according to specific criteria.
Recommendation: The PPAO recommends that the treatment disposition portion of the Code be removed and a model of substitute decision-making be adopted similar to that in Ontario's law. Treatment must be premised on consent.
Stigma and Criminalization of Mental Illness
There remains a tremendous stigma for those persons with serious mental illness who come into contact with the law. Although there may be insignificant differences in the type of person receiving care in the forensic system from that of someone subject to a civil commitment, there remains a perception of an increased potential for violence. The perceived increased safety risks lead to restrictive policies and procedures that are not clearly provided for by law. For example, throughout the forensic system, patients and their rooms are searched without cause; risk is the sole justification.
As mental healthcare restructuring proceeds in this province, many of our clients are experiencing the "criminalizing" of their illness. Rather than being diverted to the civil mental health services to receive care and treatment, individuals are charged criminally. Even within the hospital setting, patients are being charged criminally by members of their treatment teams for disputes between other patients or staff, acting-out and mischief offences. A shortage in services have caused some healthcare practitioners to intentionally stream patients into the forensic system to receive services that are otherwise unavailable or scarce.
Recommendation: The PPAO recommends that the federal government undertake an extensive education regime aimed at the continued stigma attached to the person with serious mentally illness who comes into contact with the law. Education must include consumers, stakeholders, healthcare providers, provincial review board members, judges and lawyers. The PPAO further recommends that the language of the Code be reviewed to ensure positive terms are used.
Conclusion
The PPAO again encourages the Standing Committee to hold broad public consultation on this very fundamental legislation. Full stakeholder participation will better inform the process and permit detailed recommendations to the legislature. We applaud your efforts in examining these issues and trust that you will take this opportunity to implement significant changes that reflect Canada's commitment to those with mental illness.
The PPAO would be pleased to meet with the Standing Committee to further discuss our expressed concerns and the recommendations.
