Access to justice and the need for a mental health strategy

For anyone who has attended a criminal hearing, the scene is as familiar as any other brightly lit courtroom: preoccupied lawyers facing away at opposites ends of a long table, court clerks shuffling papers, the judge presiding from an elevated podium, her eyes blinking above the horizon of a heavy wooden desk.

But in mental health court, it is the tone which changes the character of the proceeding — though it can do little about the consequences, and less about the formalities.

The proceeding begins. The murmuring of the crowd and counsel hushes, signalled by a wall swinging open from the side of the room. One guard appears, then another. Their tense authority seems to diminish the accused, a slight man, stooped and handcuffed, wearing yesterday’s clothes. The accused is awkwardly shuffled into the “prisoners box,” his head bowed. A name is announced, seemingly from nowhere and directed to no one. The guards remain on either side, casually seated but conspicuous. The handcuffs remain too. The lawyers stand. The charges are read aloud.

“... was apprehended by police pursuant to the Mental Health Act, and brought to hospital for assessment... did thereby come to be away without leave and a Form 9 issued... the accused was found threatening staff contrary to Criminal Code two-sixty-four-point-one... arrested at the scene... ”

Minutes pass in technical conversation between judge and lawyers, their speech careful and quick. The accused sits silently, his head still bowed. “FASD... cognitive ability of a seven year old... no history of violence...” The judge eventually turns to the accused. “Sir, do you know where you are?” Pause. No reply, no motion. “Do you know why you are here?” Pause. No reply. “Would you like to leave today with your support worker?” Pause. No reply. “Is this typical behaviour? Can you talk to him?”

In the absence of anticipated answers, the hearing proceeds briskly. Bail is granted, and psychiatric treatment is ordered. But the questions remain unanswered in fact, in general, or at all.

Mental health courts are meant to address issues that go beyond criminal culpability, and to respond to deeper questions about the relationship between mental health and justice. Who speaks for those who are denied a voice, or who are unsure how to answer, or who are ignored as mad when they do speak? How are legal decisions made supportively, rather than by substitution? How do lawyers take instructions, or proceed without them? What bright line separates the autonomy of the accused from the imposition of “best interests” or forced treatment? And what does it mean to simply gloss over the questions, “Do you know where you are and why you are here?””

These are not concerns particular to criminal law alone. Legal Aid Ontario (LAO) has determined that a majority of clients who are eligible for certificate legal counsel services — certificates which are issued 106,000 times each year for criminal law, family law, and refugee and immigration matters, among others — have some kind of mental health issue. Duty counsel assisting at criminal courts estimate that mental illness is a factor in no fewer than 30 per cent of their cases. And with 17 per cent of Canadians experiencing mild to moderate mental illness during their lifetime, the impact on broader civil legal needs and criminal needs is significant.

Legal Aid Ontario is developing a mental health strategy to strengthen the capacity of lawyers, frontline workers, and management to better serve clients with mental illness. It is a multi-faceted strategy that improves and adds to LAO’s current client services. Over 50 consultations have been conducted in the last two months. LAO has talked to lawyers, activists, and persons with lived experience of the mental health and legal systems. Consultations have taken place with hospitals, court houses, drop-in centres and legal aid clinics. New ideas are being explored, and old issues are being raised. In each of these instances, the message has been clear: equitable access to justice is good health, and good social policy.

In the coming months, all this preliminary research will be publicly released through a consultation paper. This paper will form the basis for a province-wide conversation on the relationship between legal aid and access to justice for persons with mental illness. The paper will identify targeted improvements to existing services in the immediate future, and lay out a vision for the development of additional resources and projects over time. Collectively, these efforts will lay the foundation for sustaining a multi-year strategy that will renew the importance of mental health needs throughout LAO’s mandate.

Ryan Fritsch

About Ryan Fritsch

Ryan Fritsch was policy counsel at Legal Aid Ontario leading the development of the Mental Health Strategy. He previously served as legal counsel to the Psychiatric Patient Advocate Office and continues to support numerous community initiatives, including as co-chair of the Mental Health Police Record Check Coalition.