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Mentally disabled persons in the criminal justice system.

About 13 years ago, the Alberta Civil Liberties Research Centre (ACLRC) published a study on the circumstances of mentally disabled persons in the criminal justice system. It became clear that facing criminal prosecution is especially difficult for anyone whose ability to understand the proceedings, to communicate effectively with a lawyer, to give instructions and to make decisions, is impaired by mental disability, whether in the form of mental illness, intellectual challenges, brain injury or other related condition or disease. It was evident that individuals with mental disabilities faced barriers at all stages of their interaction with the legal system: from dealing with the police to retaining and instructing a lawyer, to dealing with the judicial system, and finally to their experiences in prisons and jails. Has anything changed? While many of the concerns unfortunately remain, there have been some hopeful developments.

We originally identified several areas of concern for mentally disabled persons in the criminal justice system.

First, the mental disability may influence or cause the crime.

Mentally ill persons may act under the influence of delusions or hallucinations or may show poor judgment or lack of impulse control. Similarly, intellectually challenged and brain injured individuals may have difficultly appreciating the consequences of their actions, may be used by others to commit criminal acts, or have poor impulse control.

There have been some recent developments in the way that mental disabilities are identified and handled within the criminal justice system. One area that has changed is the detection of fetal alcohol syndrome or alcohol-related neurodevelopmental disorders (ARND). Courts, lawyers, and correctional services are starting to recognize that ARND clients have issues that can profoundly affect their interaction with the criminal justice system. Individuals with ARND have a brain injury that can impact their ability to distinguish right from wrong. Once in the criminal justice system, people with ARND may have a desire to please that can result in false confessions and an apparent lack of remorse (M. Wilhelmson, 2002, "B.C. Lawyer is leading Fight to assist accused victims of Fetal Alcohol Syndrome", The Lawyers Weekly 22:3). It has been recommended that screening devices be developed at various stages of the criminal justice system in order to identify individuals who have ARND and who may need special services (Correctional Service Canada. Research Branch, 1998, Fetal Alcohol Syndrome: Implications for Correctional Service).

Some members of the justice system have started to address the special needs of mentally disabled persons. For example, in 1998, in response to concerns about the treatment of the disabled in the criminal justice system, the Calgary Police Service created the Diversity Resources Unit. The initial purpose behind the unit was to consult with disabled people and related professionals in order to develop strategies to prevent crime and violence against people with disabilities; however, according to Constable Martin Cull, the project did more than just that. It had the added effect of educating the police in order that they may deal with disabled individuals in a more appropriate manner. The consultation resulted in the establishment of the Persons with Disabilities Police Advisory Committee which has further helped the Calgary Police Service and the community to prevent crimes against persons with disabilities and work with persons with disabilities when they become embroiled in the criminal justice system. According to Cull, because of their extensive training in how to deal with persons who are mentally and physically disabled, the police are better able to recognize those suspects who may be suffering from a mental illness or intellectual challenge, and as a result, discrimination against such individuals is becoming less frequent. For further information, see the Calgary Police Service Crime Prevention and Personal Safety of Persons with Disabilities Handbook (2001, Government of Alberta).

The underlying social causes remain unchanged. Many homeless people are mentally ill. Statistics on homelessness indicate that up to 50% of homeless men and 75% of homeless women in Canada have a mental illness and are in need of treatment (Canadian Council on Social Development, 2005, "Forging Social Futures" Canadian Social Welfare Policy Conference). In response, Legal Aid Ontario and the City of Toronto have developed the Homeless Access and Referral Project, which operates legal clinics at five social agencies in Toronto. According to Janet Leiper and Heather Morgan, many of the clients are mentally disabled persons (2005, "Overrepresentation of mentally ill in criminal system creates many costs", The Lawyers Weekly 25:5).

Some jurisdictions, such as Toronto and New Brunswick, have developed specialized courts to address the issues of mentally disabled persons. There are several different models, but all of them have mental health and other social service people involved in the adjudication process and rely on court-monitored treatment. These courts also feature an interdisciplinary team approach, voluntary participation by the accused person, case management, and treatment monitoring. It is too early to tell if these courts are the best approach for dealing with mentally disabled accused persons.

Second, once arrested, mentally disabled individuals may be less aware of their legal rights than are non-disabled persons.

In the first study, we discussed the "revolving door syndrome", whereby some mentally disabled people shuttle between the mental health system and the criminal justice system without receiving support from either system. Leiper and Morgan reported in 2005 that "many mental health clients are walking an unnecessary tightrope between justice and health care systems."

Further, mentally disabled persons may provide false confessions. In the past, the focus was on how the actions of police could induce false confessions. More recently, the focus is moving to analyzing how certain people, such as those with mental disabilities, might be especially vulnerable to making false statements (C. Sherrin, 2005, "False Confessions and Admissions in Canadian Law", Queen's Law Journal 30). The recognition of this issue is just starting, but it is a good beginning.

Third, there are some practical and ethical concerns with respect to the involvement in the case of people other than the lawyer and client.

Family members, social workers, medical personnel, and community organizations may all provide invaluable assistance to a mentally disabled person who has been charged with an offence. For example, lawyers can make effective use of community resources that may assist the client. These individuals may also be very helpful in explaining the nature and consequences of the client's mental disability. Family members naturally want to assist the mentally disabled person through a trying time. However, confidentiality is a concern, because these individuals could be called upon to testify about the content of potentially damaging conversations with the accused person.

These concerns will have to be carefully monitored if the multidisciplinary approach of mental health courts is undertaken. One alternative approach is seen in a recent case where the trial judge followed a finding of guilt with a conditional sentence in a secure psychiatric treatment centre, followed by three years probation. The offender had a lengthy history of mental illness. This unique sentence was upheld by a majority of the Supreme Court of Canada in the 2000 case of R. v. Knoblauch.

Fourth, lawyers representing mentally disabled clients are faced with choices that would not normally arise with a non-disabled client.

For example, it may be possible to negotiate for a client's diversion out of the criminal system, through commitment to a mental health facility. On the other hand, the lawyer may decide it is preferable to advise the client to plead guilty because once convicted the client will be detained for a shorter period of time than if he or she were committed to a mental health facility. However, having a criminal record may have other impacts on the client's treatment or housing in the future.

Finally, if convicted and sentenced to serve a term in prison, a mentally disabled person may face increased abuse from other inmates and may have difficulty benefiting from rehabilitation programs.

The issue of the significant numbers of mentally ill prisoners remains. In its November 2005 Annual Report, the Office of the Correctional Investigator of Canada indicated that 11.1% of the prison population is mentally ill. Further, in 2005, Leiper and Morgan indicated that since 1995, the number of mentally ill people admitted to correctional facilities has increased by 27%. Thus, more work needs to be done to ensure that the problems associated with incarcerated mentally disabled persons are alleviated.

Changes to the Criminal Code

In 1992, the federal government attempted to address some of these concerns by amending the Criminal Code. These Criminal Code provisions apply to persons found to be not criminally responsible on account of mental disorder or found unfit to stand trial due to a mental disorder. The amending legislation also provided for a review of the new provisions, which was undertaken by the Standing Committee on Justice and Human Rights in 2002. The recommended changes to the Criminal Code that resulted from the review took effect in 2005 and 2006.

The requirements for a finding of "not criminally responsible on account of mental disorder" have not changed. The accused must show that he or she was incapable of either appreciating the nature and quality of the act or omission, or knowing it was wrong, as a result of suffering from a mental disorder at the time of the offence.

Once tried for an offence and found not criminally responsible, the accused is neither convicted nor acquitted, and is not sentenced. Instead the court or review board determines the appropriate disposition: an absolute discharge, a discharge with conditions or detention in a hospital. The review board monitors this disposition and can make changes as needed until the accused person is absolutely discharged.

The amendments extend the authority of the review boards, so they can adjourn a hearing for up to 30 days, convene a hearing on their own initiative, issue a summons or warrant to require the accused's attendance at a hearing, order an assessment of the mental condition of the accused, and extend the time period between annual reviews of the accused's case.

If an accused person is "unfit to stand trial", he or she is unable on account of mental disorder to conduct a defence at any stage of the proceedings up until a verdict is rendered, or is unable to instruct a lawyer to do so. The accused is unable to understand the nature, object, or possible consequences of the proceedings, or to communicate with counsel.

Before the amendments, when an accused person was found unfit to stand trial, the prosecution of the offence did not proceed, and the accused was dealt with by the review board until found fit and then tried. An inquiry was held by the court every two years after the verdict of unfitness and every two years thereafter until the accused was acquitted or tried. The purpose of the inquiry was to determine whether there was sufficient evidence to put the accused on trial.

After the amendments, the review board can recommend that the court hold an inquiry about people who have been deemed to be permanently unfit (e.g., those with an organic brain injury) to see whether the court could issue a judicial stay of proceedings in the interests of the proper administration of justice. Thus, a person will not remain indefinitely in the criminal justice system when they pose no risk to society.

Before the amendments, there were unproclaimed capping provisions that provided for a maximum period under which a person could be detained or under supervision conditions. However, these provisions have now been repealed. The government says that the law already includes sufficient safeguards so that only those who pose a danger to public safety will remain under a disposition (Canada. Department of Justice, 2005, "Measures to Modernize the Mental Disorder Provisions of the Criminal Code"). However, some civil liberties groups believe that the repeal of the capping provisions and the implementation of measures to deal with an accused person who may be permanently unfit are insufficient to address the issue. For example, the British Columbia Civil Liberties Association points out that under the current system, not criminally responsible individuals may be detained indefinitely because they have been labelled dangerous, even if the accused committed only a minor offence such as shoplifting. The appropriate place for these individuals is the provincial mental health system (British Columbia Civil Liberties Association, 2002, "Submission to the Standing Committee on Justice and Human Rights Regarding the Review of the Mental Disorder Provisions of the Criminal Code").

Before the amendments in 1992, lawyers may have been reluctant to argue that the client had a mental disorder at the time of the offence, or that the client was unfit to stand trial because of a mental disorder. This was true especially when the accused had committed a relatively minor offence, such as creating a disturbance. In those days, the only disposition available after finding the accused unfit to stand trial or "not guilty by reason of insanity" was indeterminate detention under a Lieutenant Governor's Warrant. With the new amendments, it appears that similar concerns about indefinite detention will continue for persons found to be not criminally responsible on account of mental disorder yet still dangerous.

We are currently in the process of updating our research on mentally disabled persons in the criminal justice system. Our research to date indicates that it is clear that mentally disabled persons charged with criminal offences and their lawyers continue to face many great challenges as they proceed through the criminal justice system. One positive development seems to be the growing awareness of these challenges. Indeed in 2005, Chief Justice Beverley McLachlin addressed the University of Calgary's Faculty of Law on the "Challenges of Mental Illness" (V. Lalonde, 2005, The Lawyers Weekly 24:40), where she commented on various liberty, dignity, and equality issues posed by mental illness for both the civil and criminal law.

Linda McKay-Panos, BEd, LLB, LLM is the Executive Director of the Alberta Civil Liberties Research Centre in Calgary, Alberta.
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Title Annotation:Special Report on Law and the Disadvantaged
Author:McKay-Panos, Linda
Geographic Code:1CANA
Date:Nov 1, 2006
Previous Article:Landmark cases in tort law.
Next Article:Accessing justice through community advocacy training.

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