OTTAWA, Wednesday, April 20, 2016

The Standing Senate Committee on Legal and Constitutional Affairs met this day at 4:17 p.m. to study matters pertaining to delays in Canada's criminal justice system.

Senator Bob Runciman (Chair) in the chair.

[English]

The Chair: I apologize for a bit of a late start. We will still have some members trickling in, I suspect, but good afternoon. Welcome colleagues, invited guests and members of the general public who are following today's proceedings of the Standing Senate Committee on Legal and Constitutional Affairs.

Earlier this year, the Senate authorized the committee to examine and report on matters pertaining to delays in Canada's criminal justice system and to review the roles of Government of Canada and Parliament in addressing such delays. This is our thirteenth meeting on the study.

For our first hour, we have with us from the Centre for Addiction and Mental Health, Alexander Simpson, Chief of Forensic Psychiatry; from the Mental Health Commission of Canada, Louise Bradley, President and CEO; and Patrick Baillie, Psychologist, Alberta Health Services.

Dr. Simpson, I understand you will lead off and then we will move to Ms. Bradley.

Dr. Alexander Simpson, Chief of Forensic Psychiatry, Centre for Addiction and Mental Health: Thank you Mr. Chair, and thank you very much to the committee for the chance to speak with you. Thank you, also, for the committee's interest in this area and your desire to hear from the mental health sector about mental health and the laws that, in our view, impede on these issues.

My qualifications and roles are set out. I have experience in New Zealand, Australia, the U.K. and for six years here in Canada in forensic mental health systems. My experience is that the delays, for instance in NTR decisions, are longer here than any other jurisdiction of which I am aware.

That is, of course, a period of treatment and rehabilitative opportunity lost as well as delay for victims and others interested in justice and seeing cases resolved. It is apt that the committee is interested in this issue.

There are many issues that lead people with serious mental illness to become involved with the criminal justice system. Those include the availability of drugs of misuse, a local problem right now; poverty, poor housing and poor social support within the mental health service which cause many people to either evade or become lost to mental health follow-up; and problems accessing mental health services because of their unavailability or because of behaviours that the illness cause.

Thus, many people with serious mental illness have active symptoms of illness that are responsive to treatment but either they cannot or will not access the treatment they need to improve their wellness and capacity to function. When these people present with disturbed behaviour of varying degrees of severity, they can result in criminal charges before the court.

Active symptoms of illness can also impair the person's ability to defend themselves, to engage counsel and to arrange services to facilitate bail applications. The person's difficulty with the court setting and the circumstances of detention may worsen a person's mental state. It is not uncommon for counsel to have difficulty gaining instruction or for actively unwell defendants to fire their counsel, further delaying proceedings.

We at CAMH commenced a new clinical service called the Forensic Early Intervention Service into the Toronto South Detention Centre and trying to find all people with serious mental illness who were remanded there. In the first year of operation last year, we received 1,200 referrals from the prison for our service. While many of those people were not so unwell that they required ongoing involvement from us, many did. At any one time, about 6 per cent of the standing population of that prison had ongoing severe mental illness issues that could impede their capacity to instruct counsel or which might qualify them for an NCR disposition. So the problem is not small.

There have been multiple forms of service delivery delivered to assist people with serious mental illness before the courts and to assist the courts. These include court support services for persons the court identifies, diversion services, mental health courts and court liaison services. I understand the committee is going to go and observe some of those services, which is fantastic.

All those services are important to assist people with mental illness to reengage with the community support and treatment services they need, but there are significant problems with them.

While the above services are established in many areas, there's no overarching coverage. We do not know how comprehensive services are across the country or indeed within individual provinces. Put differently, is my chance of accessing a diversion service uniform, regardless of which court I appear in, or is that very context-dependent? For instance, we measure diversion programs by the number of people who go through them, not the percentage of people who should go through them but actually get the opportunity to do so.

This extends to the availability of other court-related services. There's no consistent mental health screening at courts for mental health problems, and the interpretation of privacy law sometimes makes it difficult for court-based clinicians to communicate with local health services around people who may be a client of the local service who is appearing in court.

Mental health courts have developed in big numbers across the country, but they require the person, their counsel or the Crown to seek the services of that court. In contradistinction, court liaison services aim to screen and actively seek people with serious mental illness who appear before the courts. Mental health courts have also been the result of local initiatives and local coordination of services, adopting different models, making inconsistent access to justice.

There are many potential solutions to these, and I'm sure you will come to see them as you move around. I would mention only one.

Court liaison programs are mental health service provider programs, which I believe are a more effective model at detecting who appearing before the court has serious mental illness. In New Zealand, at every district court that was receiving new cases, we had a registered mental health nurse or nurses in those courts. They scrutinized the lists of people appearing before the court, looking for familiar names and taking referrals from counsel, police, family and from the defendants themselves. They would provide assessments of an informal nature directly to the court about the person's need to access care immediately, about the need for forensic assessment services and to assist the court with decisions in relation to bail. They could also assist with bail decisions and access to hospital beds. Court liaison coverage ensured that every district court and, on a rota, all other peripheral courts had uniformity of access to mental health care.

That's a little different from a mental health court, which is a construction of the justice system to cope with mentally ill defendants. Court liaison services are the end-reach of mental health services to try and access the people who might need care and thereby assist the courts. I would strongly advocate for thinking hard about that type of service in addition, or maybe as a different model, to specialized mental health courts.

International experience in court and prison settings confirms that some people with serious mental illness may wish to avoid contact with services or don't know how to access them. They suffer greatly and cause immense distress for their families and others in the community. The ability to urgently and immediately provide assessment and treatment for such people is crucial, not only to their health needs but also to the administration of justice.

Early detection at court, by a court liaison service model like I've described, or in prison by a program like the Forensic Early Intervention Service, are examples of positive involvement of mental health services to try and detect and offer assistance as early as possible. Early detection and provision of treatment during the court processes may diminish any of the delays that are of concern to the committee.

These issues are complex, though, and a small part of the overall administration of justice. But the vulnerability of people with serious mental illness before the courts should be an issue of significant concern to the committee.

Thank you for the time to at least give you those few comments and observations. I would be happy to take questions, following my colleagues.

Louise Bradley, President and CEO, Mental Health Commission of Canada: Thank you very much for inviting me to engage in this important dialogue.

We're discussing a matter that is extremely close to my heart. I've spent a great deal of my professional career in the forensic and correctional settings, providing health care. We know that a disproportionate number of people in our criminal system are people living with mental health problems and illnesses. They are often saddled with the unfortunate stigmatizing distinction of being the "mad and the bad.'' Even worse, they are shunted through a system ill-equipped to manage their individual concerns.

Given today that we are zeroing in on the issues around delays in the system, I have invited Dr. Patrick Baillie to join me. Dr. Baillie has worked both as a psychologist in community-based mental health and as a consulting psychologist with the Calgary Police Service. He was also the esteemed chair of our Mental Health and Law Advisory Committee and continues to serve on the advisory council to the commission. Formerly, he was legal counsel to the Provincial Court of Alberta — essentially a lawyer who provides advice and research to judges. He has been a tremendous resource to me, as well as to the entire commission.

Dr. Baillie is going to be offering you some insights on how we might look at delays in the justice system from a mental health perspective, first, addressing the overpopulation in remand centres; and, second, speaking a bit about the need for increased resourcing in remand centres, which are more limited than jails and penitentiaries, meaning that treatment opportunities are very sparse.

I think we can all agree that returning somebody to the community without rehabilitation does nothing to improve public safety, and it certainly does nothing to help the offender or the family that he or she is returning to. It is unconscionable to think that we actually return somebody to the community with worse mental health problems than when they entered the system.

Patrick Baillie, Psychologist, Alberta Health Services, Mental Health Commission of Canada: Thank you, Mr. Chair and members of the committee, for the invitation.

I want to follow up briefly on a couple of comments that Ms. Bradley made. I am a psychologist working in an outpatient program that has approximately 1,200 referrals a year to a total of 23 staff. We provide in-office services to those individuals in the community as well as accessing the individuals who are sitting in the remand centre through a court transition team that assists those individuals in their potential release back to the community.

I want to pick up on something that your first witness at these hearings spoke about. Mr. Justice LeSage identified that the significant proportion of individuals coming into the justice system are those who are poverty-stricken, addicted, homeless or mentally ill. Of course, we also see those individuals who are all four at the same time. Those are the individuals who find it particularly challenging to be able to get released.

So when we are talking about delays in the justice system, for that group, it becomes individuals who may be spending an inordinate amount of time in a remand centre.

I will give you a simple example, and I take ownership of this because I was involved in the case. There's a trial starting in Calgary in a couple weeks for a homicide that occurred close to two years ago. A fellow was beaten in a back alley by a group of youths. Three of the youths are charged with second-degree murder, and one is charged with first-degree murder, so the most violent of offences within the Criminal Code. All four have been on bail since shortly after their initial arrest. We can argue about whether or not they should have been granted bail in the first place, but all four of them were released in part because they came from well-established families in the community who were able to retain legal counsel, have expert assessments done and put information before the court that said that these individuals are likely to be a manageable risk.

The families posted significant sureties, said that given their esteem in the community, they didn't want to jeopardize that by any violations of bail conditions, that they could provide accommodation and, in fact, could provide employment for their family member if released back into the community.

An allegedly violent offender is granted the bail because of the supports available to them in the community. What Dr. Simpson and I see is that at the other end of the spectrum, individuals on property or administrative offences who may have mental health problems and are therefore receiving financial assistance through the government may be living on the street or the drop-in centre and may have been inconsistent in their ability to follow up with treatment. Those individuals are deemed to be an unacceptable risk and are retained in custody.

Then they sit in the remand centre for a distinct period of time that often runs to a matter of months. Remand centres were clearly designed to be a temporary holding facility until individuals have their day in court. Instead, what we now face across the country is more people sit in remand centres than serve time in jail or penitentiaries. More than half of the incarcerated population is made up of individuals who are awaiting their day in court.

With this attitude of remands having been simply a short-term measure, the treatment resources available in those settings are much more limited, so we don't have the group programs to address anger management or substance abuse nor do we have those kinds of mental health treatment resources. Yes, there's a psychiatrist who goes in and the nurse that I mentioned earlier from our program who assists with people who are transitioning to the community, but if you compare that to the breadth of programs available in the jails and penitentiaries, it is significantly more limited.

The individuals who are experiencing the consequences of delays in the justice system are disproportionately those individuals who are already disadvantaged, in large part, due to mental health problems.

As Dr. Simpson said, one of the options is better liaison with mental health programs where we can, quite literally, as he suggested, scan the lists and see who the people are who are appearing in docket court. We do that in Calgary. We also have a mental health diversion program which allows people to be rerouted out of the justice system when essentially the reason they're there was a deterioration in their mental health.

Serious, non-violent offenders are not accepted into the diversion program that we run, and so it tends to be the sorts of administrative, property or lower-level kinds of offences — uttering threats, for example — that may allow an individual to access a diversion program.

Even in our province, as Dr. Simpson suggested, there are differences in that Edmonton runs a mental health court. Calgary, as I mentioned, runs a diversion program.

If we have those individuals with chronic mental health problems sitting in remand centres and if they're not able to get released, we need to do treatment in the facilities for them.

If they are able to at least look at the possibility of release, there needs to be more support for those individuals in the community. Just as the Criminal Code provisions allow the court to order an individual to follow up with a bail supervisor, my suggestion would be that there should be an opportunity for a justice of the peace, in recording bail conditions, to require an individual to follow up with a mental health professional.

That downloads the responsibility from the justice system back to the mental health professionals that Dr. Simpson was describing earlier who may have had a history with this individual, may be able to provide assistance and may be able to reduce the risk that is posed to the community. By leaving people in custody we end up with a situation where when the case ultimately comes to trial, if the accused pleads guilty or is found guilty, he's often given time served and released back into the community without the kind of supports in place that might make the community safer, putting himself and the citizens in jeopardy.

I think the delays have a disproportionate effect on people with mental health problems and that there are a number of solutions we can be looking at that not only address the needs of those individuals but also ensure the safety of the community.

Thank you for the opportunity to speak to you today.

The Chair: Thank you all.

Senator Jaffer: Thank you for your presentations. I have a few questions. First of all, I have a clarification if I may. Ms. Bradley, you spoke about a disproportionate number of people with mental health issues. When you say "disproportionate,'' do you have an idea of how many and what percentage?

Ms. Bradley: There are numbers available and I know that Howard Sapers, the ombudsman for CSC, has spoken about these. I don't know them exactly, but Dr. Baillie or Dr. Simpson might.

Mr. Baillie: I'm sure that Sandy and I can give you a list of them. Part of the issue depends how you define mental health, in that do you include substance abuse as a separate mental health problem? If you include substance abuse and personality disorders in the mix, most of the research suggests you are looking at at least half of the correctional population having some sort of mental health problem.

Senator Jaffer: Do you know the average time a person with mental health issues spends in a remand centre? Do you have any idea?

Mr. Baillie: I don't believe that it would be significantly different than the time that most people are spending in the remand centre. The difficulty is that because of their mental health problems, they're more likely to be unable to obtain bail and so those are the individuals who are spending time in custody.

We have had folks on serious offences sitting in custody for two years. We have had individuals on lesser offences for whom it may have been a matter of a month or less before the case is actually resolved.

Dr. Simpson: To go back to your first question, if you look at the specific disorders that may lower the person's capacity to participate — if you look at the psychotic disorders and organic brain disturbances — somewhere around about 6 to 9 per cent of the standing prison population would have those sorts of disorders. Now, they're phasic except for the organic ones, so the person may be sicker or may be more well or have less or greater capacity depending on the phase of their illness.

If you looked at research for a lifetime diagnosis of a psychotic illness — bi-polar disorder or a current major depression — in the remand setting you would expect 20 per cent of new people coming into a male remand prison would meet one of those three diagnostic criteria. In a women's prison, it's probably higher.

Senator Jaffer: I'm interested in diversion. I was involved in this, not for mental health but generally for diversion.

You did say most of the diversion cases were for lower-level offences. Is that national, or just in Alberta?

The second question I will ask you is about what you said about people pleading guilty and then being released into the community. I understood that there is a provision under which people can go for treatment before they're sentenced. How does that work?

Mr. Baillie: I will talk first about the diversion program. There are no national standards that I'm aware of on how to construct a diversion program. When Calgary undertook the process, the initial decision was made that no violent offences would be allowed into the program, and that was subsequently expanded to include the low-level kinds, like uttering threats, that I mentioned earlier.

We then have dedicated staff working in the diversion program — nurses, social workers and some administrative staff to support them — who can then work with those individuals who are, with the Crown's consent, put through the diversion process. Of course, the outcome of the diversion process is that the charge is ultimately withdrawn because the person has accessed the kind of supports that allow for the reduction of risk.

Senator Jaffer: There's no record?

Mr. Baillie: There's no record. Calgary's former police chief, Rick Hansen, who retired last year, spent seven years of his time as chief advocating for a safe jail, the idea being that some of the people who are sitting in remand are clearly motivated to participate in treatment. Even those people in custody might be able to benefit from substance abuse or mental health follow-ups, from housing and other supports that may allow them to reintegrate into the community.

Whether you do it as part of a diversion program, as bail conditions or through treatment, as in a safe jail setting, there are various ways to address the problem that don't significantly increase costs — because we know who these individuals are in the process anyway — and don't put the community at risk along the way.

The second question was about the sentencing. A number of defence lawyers have told me over the years that their singular approach is to make sure that their clients' liberty is restricted as little as possible. So after a couple of months sitting in remand, you take the guilty plea, you get time served and you're released without even being followed up on with probation, because there has already been sufficient penalty imposed.

[Translation]

Senator Dagenais: You just have to read the newspapers or turn on the television to see that, week after week, many crimes are committed by people who need care and who have been allowed to fall through the cracks.

Removing mental health cases from the judicial system might help reduce delays, and that is the purpose of our study today. But do the provincial health care systems have the means to take care of all these individuals while not putting the safety of the population in jeopardy? That is my first question, and I will have another very short one next.

[English]

Ms. Bradley: My understanding is that there are some differences among other countries. I can't speak to specifics.

I don't know if Dr. Simpson would be able to speak to that.

Dr. Simpson: There are different programs and contrasting systems around the world. I don't think anyone has done the sort of analysis that would give you a proper evidence-based answer to that.

There has been a lot of work looking at the effectiveness of mental health courts and diversion programs. Diversion programs, in general, are more successful than mental health treatment courts. But it's really studying particular pieces of the system rather than the overall system and the way your question was phrased that could answer your question as to whether the overall mental health and court interaction improve public safety in a superior way.

[Translation]

Senator Dagenais: I do not wish to talk about the health care systems of other countries, but about those of our provinces and territories. For instance, Quebec's health care system is congested. Are there the means available to take care of these people? Quebec has difficulty finding doctors for people who are not experiencing mental health issues. If the health care system can take care of these people, how can we make it responsible? We are talking about people who need mental health care and who present somewhat of a danger. Do you think the health care systems can be entrusted with the responsibility of caring for these people?

[English]

Ms. Bradley: There are indicators we can measure. We're not doing a terribly good job in Canada of doing that. The data is collected quite differently in each province, although I do believe that the data on, for instance, forensic mental health services is more accessible than in the general system. So the statistics are more accessible, and there have been researchers who have been looking particularly at the legislation dealing with the not-criminally-responsible.

But Canada, the same as any other country in the world, is really struggling with how we measure to see if we're having an impact on the services being provided. I will hasten to add, though, that the system is in dire need of an influx of resources and big changes.

Senator Baker: Thank you to each of the witnesses for your very helpful presentations.

Before I get to my real question concerning delays, Dr. Baillie, I listened to you very carefully concerning bail, first of all. Do you believe that bail — the provisions for bail go back many years. They still use it in our courts. There is a case called R. v. Pearson and it says there must be a substantial likelihood of a threat to the community, and if there is not a substantial threat, the person is to receive bail.

Do you think the courts are interpreting that with too high a bar?

Mr. Baillie: The larger problem is that the courts are interpreting that in a variable manner. Sometimes the bar is set quite high, and clearly sometimes, as I indicated in my story about the homicide cases, individuals where there's strong evidence — strong enough to lay the charge and for the Crown to pursue the charge — those are individuals who've been released.

The more imperative word of the Supreme Court's decision is the issue of threat. The recidivism may be most commonly in the form of another property offence or an offence against the administration of justice. As you'll know, if an individual breaches the conditions of bail, then that can easily lead to a revocation of that person's bail. Yet we may be setting the person up with conditions that dictate "don't drink'' when you've got an alcohol problem as opposed to targeting behaviours like "don't be buying alcohol'' or "don't be at a bar or in a public establishment.''

So if we're not assessing the threat in terms of public safety, narrowly defined, then the court ends up saying, "I think you are not likely to follow through with the conditions, therefore you pose a threat.''

Senator Baker: Here is my real question to you: You mentioned a couple of offences there that really strike home when a lot of us around this table read a lot of case law — uttering threats, for example. That's a common offence for somebody who has been off their medication for a week or whatever. It leads to an extensive trial. The person doesn't qualify for NCR. The chairman of the NCR board for 25 years is sitting across from us, right here. They don't qualify.

So you go into court for uttering threats. The threat could be "I'm going to kill you'' or "I'm going to beat you up.'' All of these statements in our case law — complicated trials proving the elements of every offence, taking days and days, then figuring out whether section 16 of the Criminal Code, which is that a mental disorder qualifies you for a defence or an excuse after it's been proven.

Ms. Bradley: Yes.

Senator Baker: Is there some other way of doing this — of ridding ourselves of these very complicated, long cases? Yes, you can say you can prove they intended to frighten somebody, but is there something we can do to get these cases out of these long, protracted court trials? Is there anything that you can think of that we could suggest to get over this hump — this waste of time in our courts?

Mr. Baillie: We know that the biggest risk factor is not having a mental illness but having an untreated mental illness. So it goes back to Senator Dagenais' comments about the system stepping up and taking care of these folks. But I think there needs to be some latitude on the justice side to say that diversion, the court liaison or mental health courts may be a more appropriate way of dealing with this.

We know from NCR research that the vast majority of individuals found NCR, have a long past in the mental health system and they're well known to the system. Certainly, when the uttering-of-threat charges come up with a person with a long history, why aren't we getting them back into their treatment resources rather than leaving them in the remand centre for an extended period of time?

Senator McIntyre: Yes, NCR was raised in Mr. Simpson's memo and I will be raising that as well.

Thank for your speaking notes and your oral presentation. You have raised the issues of mental health courts, diversion programs and court liaison programs.

I'm sure that you are all familiar or have had some experience — Mr. Baillie, you as a psychologist, and you Dr. Simpson as a psychiatrist — with Part XX.1 of the Criminal Code, which deals with mental disorder. As you know, an accused person appears in court and is found either unfit to stand trial, fit to stand trial or not criminally responsible on account of mental disorder.

Those people are either released into the community or are remanded in a facility pending a decision of a board. There are 10 boards across Canada, and there are also boards in the territories.

That said, I would agree with you that for minor criminal matters mental health courts, diversion programs and court liaison programs do the job. They do the trick. In other words, they deal with people, if not in the hospital, then in the community under the auspices of community mental health centres.

However, for people who commit serious criminal offences such as, for example, first-degree murder, second-degree murder and manslaughter and very serious sexual offences, would you agree with me that review boards are an appropriate response by the criminal justice system to accused persons suspected of having mental health issues? And if not, what changes to the Criminal Code would you recommend? I ask this because reviews boards fall under the Criminal Code.

Mr. Baillie: I will be brief because I know Sandy has experience here.

With respect, an individual only gets to the review board after they've been through the trial process and have been found not criminally responsible.

I think, for those individuals and the types of offences that you're talking about, that it is entirely the responsibility of the review board to make sure that the proper treatment is taking place and that the individual's level of risk becomes manageable.

Senator McIntyre: Review boards have three choices.

Mr. Baillie: The conditional, the absolute or the detention.

Senator McIntyre: Exactly.

Mr. Baillie: The concern that I have is at the other end of the spectrum with the individuals who may have committed their offence in part because of a mental health problem but not to the threshold that gets them into the not criminally responsible regime. That individual is spending a long delay in custody awaiting trial and not getting access to great treatment resources during that time.

I know Dr. Simpson wants to add to that.

Dr. Simpson: My concern is not what occurs once you're under the review board but in that interregnum between charge and coming under the board. Certainly, as somebody who treats NCR accused under the board I've had people who have come with a new finding of NCR and a new initial disposition from the board who have been on bail for nine months or 18 months in circumstances that I would view, from a psychiatric risk management point of view, as frankly dangerous because there's been no adequate addressing of what danger this person poses when a bail decision has been made. Defence counsel have got together with a local psychiatrist and said we'll look after him. The local psychiatrist doesn't know the severity of what the person did and doesn't know the risk they're imagining. They come before the board, they get sent to us and what little hair we have left turns a little more grey and we lose a bit.

We have huge problems with coordination across there. Court liaison is one of the ways you can coordinate across that. Mental health courts only look after the people who are before them, not the other people who are moving through the system who may well be heading down the NCR route but who no one is case-managing properly during that period. That's of major concern in terms of the public safety issues as I would see it.

One final comment is that when we talk about mental health courts, there are two sorts: triage courts, which are really there to assess what pathway people should be on; and treatment courts, where this court actively supervises, for a period, a person with relatively minor charges.

The 102 court in Toronto, for instance, is a triage court, not a treatment court, so when you look at them be careful what sort of court you're thinking of.

Senator Joyal: Doctor, I read in the last paragraph of your brief that "approximately 6 per cent of the prisoners in the Toronto South Detention Centre have ongoing severe mental illness that impedes their capacity to participate in a trial.''

I wonder if that statistic is not too low to be representative of the size of problem. The reason I suggest that is that the additional information that this committee received on March 10 from Correctional Service Canada, CSC, says:

. . . in fiscal year 2014-15, approximately 27.6 per cent of the incarcerated population had mental health needs. Correspondingly, approximately 53.3 are women inmates and approximately 27.1 of Aboriginal inmates have mental health needs. Mental health need is defined as having had at least one mental health treatment-oriented service or a stay in a treatment centre during the six months prior to the data extraction.''

It seems to me that, in fact, our prisons are more or less mental health institutions.

Dr. Simpson: We're speaking of slightly different things. The data from CSC I'm aware of, but that includes issues like anxiety disorder, post-traumatic stress disorder, history of major depression and history of mental health treatment — a large variety of different mental health problems. My number refers to the most severe and those currently unwell — the peak of the pyramid of mental health need, if you will.

If I wanted to use similar definitions to that which CSC used, I would say it was something like 25 to 30 per cent of the standing population in the Toronto South Detention Centre would meet those same criteria. It depends what we're talking about.

I was talking about the capacity-lowering disorders that are currently afflicting people and that present a major challenge to their participation in court or would qualify them for a NCR defence. That's my tighter number, but those people are suffering much more and have very delayed and difficult passages through the criminal justice system.

Senator Joyal: So we could expect that those people, if they are not really taken in by proper services or institutions, could potentially be permanent customers of the legal system.

Dr. Simpson: Most commonly they're frequent flyers. They go between the remand centres, the police lock-ups, the psychiatric emergency rooms and the doss houses in the city and bounce around all of them. That's what most of the people do and no one manages to get care wrapped properly around them to stop that revolving door problem.

Senator Joyal: In French we call that a vicious circle, but I won't use that expression to describe these people.

Do you think that the system of mental courts has been developed to where it could reach a larger segment of that population? Could we use that kind of an approach more to solve the issue of burdening the system with the same kind of ill people?

Dr. Simpson: Yes, I think the mental health courts processes provide a focus for skill and coordination of service and, of course, of Crown and defence counsel and judges who develop particular interests in the area.

There's real value in concentrating those skills in one place and developing the diversion pathways and the other responses to the problems that we have been discussing this afternoon. I see them as very valuable.

My concern with them is the inconsistency of model from place to place, meaning an inconsistent application of justice. We see a number of people in Toronto South who have major mental health problems but are not in the mental health court and so are not accessing that.

It is the systems that find the people who need to be under those courts and ensure they get there that are lacking as well. We certainly, have those foci of skill that are immensely valuable and a coordination of service, but we need to do more than that to ensure the right people are getting service.

Senator Batters: Thanks very much all of you for being here. Welcome to our committee and thank you for all of the work that you do for mentally ill people in Canada.

Just as with Dr. Bradley, this is a cause, as many of you may know, that is near and dear to my heart and I think it is particularly appropriate that we deal with this particular issue in this study because of the past work of the Senate of Canada in dealing with mental health: The ground-breaking national study that was done by the Senate of Canada led to the formation of the Mental Health Commission of Canada.

I also really appreciated, Mr. Baillie, when you referred to the biggest risk factor as being untreated mental illness. I know that all of you would want me to take the opportunity to remind people that mental illness is an illness just like cancer, heart disease or what have you, and people need to get treatment for it, they need to know they're not alone, that there is help and they should reach out for that help.

Dealing with this particular issue, could you provide me with any enlightenment about how many mental health courts there are in Canada? Do they operate in every province? Is there any difference in the way that certain mental health courts in Canada operate? Does it vary by jurisdiction?

Dr. Simpson: I think I would only be quoting Justice Schneider, who I've heard give evidence before committees here. I'm afraid I don't know the precise number. As I mentioned earlier, if you were told there was a mental health court, the first response is, "That's great.'' The second question is "What model are you working on and what is the scope of what the court does?'' Because most of them have emerged as a bunch of good people in the local community very concerned about this issue, usually with a judge or Crown leading the coordination, both, for good reason, get variation in what those do and how the referral pathways to those courts occur.

My major concern is that we don't have consistency of standard. We have very good work, but there is a lot of variability with that.

Senator Batters: Could you gather that information that you said you have seen previously referred to and provide it to this committee so we have it in front of us?

Dr. Simpson: Do you know of it, Patrick?

Mr. Baillie: Justice Schneider's research on the effectiveness of mental health courts and diversion programs. Richard, of course, was responsible, with Ted Ormston, for setting up the first mental health court in Toronto, so I want to be careful. Justice Schneider tends now to advocate more for diversion programs than mental health courts because the courts are more resource-intensive whereas the diversion programs can be set up in smaller settings and utilize existing resources. Calgary, back when we used to be the economic engine of Canada, set up a mental health diversion program. We set up a drug treatment court and a domestic violence court, and so you end up with specialization even within the mental health programs of how those are going to be handled.

For some reason I'm thinking that across the country there are 14 mental health courts and then countless diversion programs because, as Dr. Simpson suggested, there are different ways to set those up.

Generally, the research shows decreased hospitalization for the people who go through the program, decreased incarceration and better treatment compliance.

Where the numbers aren't quite so clear, depending on which study you look at, is whether or not there's actually decreased recidivism.

Ms. Bradley: It is important to remember that the mental health courts work well in larger urban settings and I think the diversion certainly is better for smaller places. Having worked in Nova Scotia and Newfoundland, we simply don't have the numbers that can support that kind of service, so it is important to remember that they aren't appropriate for all settings because they simply don't work as well. Certainly, diversion is something that can and should be utilized.

Senator Batters: It is not one-size-fits-all, but different sizes of locations may determine what is appropriate for them.

Ms. Bradley: Yes.

Senator Cowan: Thank you for your evidence. Dr. Simpson, I wanted to talk for a minute about the court liaison programs you talked about in your New Zealand experience. You will forgive my ignorance of the New Zealand legal and health systems — and perhaps Dr. Bradley or Dr. Baillie could comment as well — but just intuitively it strikes me that is a better model in that you are intervening earlier and you are getting people out of the structure of a court, whether it is a mental health court or a traditional court.

Is there anything unique about the New Zealand systems that make the model work there when it might not work in Canada? We do have a federation, federally- and provincially-appointed judges and provincial responsibility for the costs of supporting the courts while the judges are federally appointed. Is there anything that would make the successful New Zealand experience inapplicable to Canada?

Dr. Simpson: I was once the executive officer for the Minister of Health in New Zealand in the mid-1980s. We went to Australia as guests of the federal government there, and the federal health minister was talking to my minister and commented to the group, "I have just had this vision of a health system without states,'' and it is a little the same here. You have referred to the complexity of those differing pieces.

Clearly the integration of the Criminal Code and the civil code is the difference between New Zealand, the Australian states, the U.K. and Canada. The lack of integration of the civil and the Criminal Code is a major problem.

In an area like B.C., they seem to have managed to make the legislation align rather better than in other provinces. That is a challenge and I think that is problematic.

The second piece goes back to Senator Dagenais' question about accountability of the mental health system. The other thing we had in New Zealand was directors of area mental health service who were usually psychiatrists who were statutorily responsible under the mental health act for ensuring the delivery of mental health services to people in their catchment area.

If somebody appeared from X community in court, one of my court liaison nurses saw them and the local community mental health team were not going to come to court to pick them up or help them out, then I could get in contact, on the phone, with a colleague who was director of area mental health services and say, "Please sort out your team,'' and that would happen.

That sort of accountability of the provision of service to a population is something I look back on wistfully in New Zealand. That varies province to province here, clearly, in terms of how those things are. You need health sector accountability of that sort to ensure that people don't fall through cracks. A lot of the ways in which we contract for services with individual providers which allow them to set the gates on those things mean that the gaps are not cracks, but there are rather large spaces between services. Statutory accountability for a population gets around that problem.

Senator Cowan: Has the CAMH looked at this issue, and what might be applicable and useful in Canada?

Ms. Bradley: Having been in New Zealand looking at the overall mental health service and meeting with my counterparts there, I concur with Dr. Simpson that when they were talking about implementing a strategic plan with one plan, it left me quite envious because it is a very different situation.

With regard to the commission, going forward in our renewed mandate, we are quite interested in looking at issues within the justice system, because we know that mental health is a huge problem — bigger than in the general population.

It isn't something that we have done a great deal of work on to date, but in particular with regard to mental health services and suicide rates within corrections, it is an area that we are hoping to look at over the next 10 years of our mandate.

Senator Cowan: Would you be kind enough to send us your new mandate with particular focus on this? You and I have spoken about this before, but would you be able to do so, perhaps so we could have a look at it?

Ms. Bradley: I will send it as soon as I have it. We are still working out the details with this current government. We received renewal for the commission over the next 10 years, but we are still working out the details of our mandate with this particular government.

Senator White: Thanks for being here. We are talking about the delays in courts, but at the same time we're talking about whether we're appropriately managing people who are involved in the justice system.

As it works today, I arrest someone, I have them charged and remanded, they get no treatment for the next five months and then they go to court. We expect them to come out better after five months of remand with no assistance. Some countries — Norway, I think — have treatment and programming during remand, and they're having much greater success in even managing the case when it comes to it.

Would you not agree that our provinces and territories need to get their heads around providing some level of treatment and programming during remand, if we're going to hold them? We have a lot of people — more than half in Ontario — in remand.

Dr. Simpson: Yes.

The Chair: I don't think remand facilities are appropriate locations for extended treatment. We have to get people in and out of remand quickly. I would think even the provincial jails are not the best spot. The average stay in an Ontario provincial jail is about 90 days. So, no, it is briefer than remand in many instances.

With respect to the CAMH and what Senator Cowan was raising, I gather you haven't taken a close look at the criminal justice system, but governments are all concerned about costs. If you took a look at the remand end of provincial jail versus treatment, and also built into that recidivism rates — because I think it is shortsighted just to look at the one element, there may be other elements that could go into the mix —they can indicate pretty clearly to government that it is shortsighted to simply go down the path they're going, not having the facts with respect to the real cost to government and taxpayers, but society at large in terms of the revolving door system.

We know mental health is driving a lot of these problems in our court system; there's no question about it.

This is a question for Dr. Baillie. We had one witness here who was the author of a report to the federal government called "Broken Bail'' in Canada: How We Might Go About Fixing It. I think she is a professor at the University of Ottawa. She laid a lot of the responsibility for the "remand plugging,'' if you will, and the court delays on the defence bar.

From your observations in Calgary and elsewhere, do you have any comments with respect to that conclusion that she reached?

Also do pretrial credits enter into this? We have heard that argument. Former chief-now-Senator White has had personal experience with respect to situations where pretrial credits enter into decisions for someone to stay in remand, for example.

Could you comment on that?

Mr. Baillie: I have personally seen cases of individuals who don't apply for bail in order to spend their time in remand and, under the old system, get enhanced credit for that as part of the overall sentencing.

Those cases are more limited. Again, my concern is about those individuals who may be seeking bail but don't get released back to the community because of having limited resources to support them in the community. So we tell them to report to a bail officer; we tell them not to consume alcohol; we tell them not to associate with various people; but we don't necessarily provide the housing or the systemic kinds of supports, including the mental health supports.

As Senator Batters mentioned, the issue of untreated mental health is the biggest risk factor. We know that recovery is possible, but you have to be able to provide the resources to assist the person along that journey.

I agree with you that remand centres and jails are probably not the best place to do that, but when you have an individual for whom the level of risk is persisting, rather than shifting that responsibility back to the community, I go to Senator White's comments about providing treatment when the person is in custody.

The Chair: What about an alternative, which is significantly less costly, and that's expanded use of electronic monitoring? Rather than incarcerating someone awaiting trial, they're on electronic monitoring; it allows them to go into treatment and allows them to keep a job, for example, as well.

Do you have any views on that?

Mr. Baillie: Electronic monitoring is in use in Calgary, and it certainly assists us in knowing whether the individual is complying with the condition regarding their whereabouts, but it doesn't tell us a lot about the individual's behaviour, other than where they are geographically.

So it can be a useful tool in reducing some elements of risk and keeping an individual out of certain communities or at home at certain times, but we still have the issue of whether there's substance abuse on the negative side or treatment on the positive side that the person is following through with.

The Chair: New technology will allow you to track someone. From what I have read in recent materials on that, I think that it is not the same challenge it was a few years ago.

But we have a brief second round.

Senator McIntyre: I only wished to add something. I stated a while ago, we have to separate accused persons charged with minor criminal offences as opposed to those charged with very serious criminal offences —

The Chair: That's just a point of view. We must move on.

Senator Joyal: Who stands for the people suffering from mental health in the system? Who is the ombudsman for mental health people in the system?

Mr. Baillie: For those individuals in federal custody, my good friend Howard Sapers certainly takes a swing at some of the issues. On the provincial level, it goes back to the chair's comment about the length of time people spend in custody. In Alberta, it is even less than the numbers he was citing for Ontario; 39 days is the average custodial term. So people are in and out so fast that they often don't have contact, and we don't have a formal ombudsman system in the jails.

The Chair: We have run out of time, but I think Dr. Simpson volunteered to provide some information on two subjects to the committee.

Mr. Baillie: Sandy might have deferred to me on the Schneider report, and I can certainly provide that.

The Chair: It is difficult with the time constraints, but if there's anything else that you wish to provide us with in terms of assisting us with this study, please submit it to the clerk. It would be most appreciated.

Thank you all for being here today and helping us through this.

In this second hour, we have Dr. John Bradford, Professor, University of Ottawa; and from the Criminal Lawyers' Association Anita Szigeti, Mental Disorder Portfolio.

We are very much looking forward to your presentations. You will have the opportunity to respond to questions following that. Dr. Bradford, I believe you are going to lead off.

Dr. John Bradford, Professor, University of Ottawa, as an individual: Thank you. I didn't want to be repetitious, and I knew that Patrick, Sandy and Ms. Bradley would be here earlier, so I sent you a PowerPoint. I got stuck in a marijuana cloud outside along with millions of people, so it took me a while to get here, to be honest. If my pupils dilate and my eyes roll back, you know what happened.

I thought I would do a PowerPoint presentation. I heard some of what went on, and I will try not to overlap.

You heard about criminalization and things like that, I'm sure there's some discussion about that. You heard about mental health courts. The one area I would dispute is that, although Justice Schneider sort of says that he started the first mental health court in Canada, which was in Toronto. In 1980, we had a mental health court, but we didn't call it that. That was in Ottawa, so we will dispute that. Let me put that on the record. I'm teasing, but it is true.

The other thing that I think is important was that there was discussion of diversion. We know that part of the problem is triaging and getting people away from the court system. In a mental health court — I have worked in one for 20 years — to get people into assessment orders for fitness to stand trial or to be found not criminally responsible is fairly easy. Certainly in Ontario, we have had a very strictly mandated system of how we do that — who gets into hospital and who stays out of hospital.

That side of the system works quite well. I think you probably heard from Sandy and Patrick that the outcome of the NCR, the not-criminally-responsible system is actually very good.

So I will not address that. I will go to the individuals who end up in the courts who have a mental disorder and who don't qualify to get into the forensic system. Because that's a problem and they're the ones who clog up the jails. They are the ones who, when they go to "show cause'' court, everybody throws up their arms about risk, and they don't know how to deal with it.

Essentially, if you are working in a mental health court, somebody would appear before you. They would have a mental illness. If there was a fitness issue, or if they would go to the mental health court, they would be processed.

The bulk of individuals — because we divert about 85 per cent of the people with a mental disorder who walk into a mental health court. So that other 85 per cent is who I'm talking about and what happens to them. What happens to them is they go to "show cause'' court, and you've got a justice of the peace who will look at it, or it may go to a Superior Court of justice, and they're going to be worried about risk.

Risk is not very well identified in that setting at all. Mental disorder becomes a barrier to release. What they do is off they go to the local remand centre or the detention centre in Ottawa — wherever it is — to a place where there are almost no programs for mentally disordered people — they're lucky if they see a psychiatrist once a week. The level of psychology or other mental health professionals are low. In many situations, they don't even have 24-hour nursing. So the delivery of programs, even medical care programs, is very poor. They then deteriorate, their risk level increases, their chance of being released decreases, and that's part of the difficulty.

The other part of that 85 per cent who are diverted is that some of them would have a psychiatrist, or they would have contact with a previous mental health facility. You would think picking up the phone would be easy and that you would get them an appointment and off they would go.

As part of that triage, it's very difficult — so much so that many of us in Ottawa and Toronto have created our own triage to treatment facilities, either at the court level or back in the hospital, because, often, the general mental health system doesn't want these people back. So they then float around, and that's a whole other problem. They become homeless; they don't have the care and support from the general mental health field.

The "show cause'' issue — the standard that's put in place for risk is too high. It is sort of a legal test. There's very little input about how the risk could be managed. In many cases, the risk could be managed. As I have said already, the mental health component of it becomes a more significant problem or risk.

That could be managed. To a certain extent, it can be. When we take some people of that group and we then try and work with them over the next week or two, we then try and come up with a plan where you can keep them in the community. But it is not as well organized as the mental health court. That diversion part of it doesn't work as well. As I have said in my slides, diversion is resource-sensitive, so if you don't have resources, it doesn't work very well.

The other issue is that I think people could be released into the communities if there was a facility that was secure enough and which had programming. I will give you an example. Part of the success of the forensic system is that people are released and then they cascade down through community agencies that have 24-hour supervision and things like that.

What we don't have, certainly in Ontario and, I suspect, many other provinces, we don't have a good network of houses for individuals who are on bail. These houses could have 24-hour supervision. They should have a mental health component. I used to work as a consultant to one, which worked quite well.

The other issue about it, you could set up programs for random urine drug screens and many of the risk management strategies we already use. What we don't do enough of is to look at electronic monitoring in that situation. That's not so much people leaving the facility but GPS monitoring, which is used extensively. For example, in California, it's quite sophisticated. Why we don't do it, I don't know.

If you did that, out of that 85 per cent, you would get some of these mentally ill people out of the detention centres, where they get worse, into a situation where they will have limited freedoms, but nonetheless, they would have health care. I think they would do better, and it would take away some of those problems.

The other issue is that if you look at detention centres, certainly the Ottawa-Carleton Detention Centre is terribly overcrowded, as you have probably read in the media. The resources and lack of programming are paramount. It is actually quite awful what goes on there. Suicide rates are high.

I'm very proud of having worked with Senator Bob Runciman in setting up St. Lawrence Valley, which is a correctional facility. It's a special treatment facility where we drain all the seriously mentally ill people from the whole of the province of Ontario. It's been open since 2003, so 13 years.

It has had about 5,000 admissions, and we have not had one completed suicide. If you take it at the lowest end of expectation, you would expect five to 10 suicides, and I'm just talking about the general population. If you add mental illness or substance abuse or whatever it is, where the risk of suicide will go up 10, 15, and at the high end perhaps even 2,000 times higher, we're doing a good job.

The message is that we could do a better job on this 85 per cent that are released and end up in detention. I think bail houses with the proper supervision would be helpful. They don't have to be run by the government. They could be in contractual arrangements with the John Howard Society or a place like that, and I think that would make a difference.

I'll stop at this point. I'm happy to answer any questions. Thank you for listening.

Anita Szigeti, Mental Disorder Portfolio, Criminal Lawyers' Association: Good afternoon, senators. I appear today as a member of the Mental Disorder Portfolio of the Criminal Lawyers' Association, which currently has almost 1,400 members all across Ontario, all criminal defence lawyers. The CLA is the voice of the criminal defence bar in Ontario.

On behalf of the association, I want like to thank you once again for your kind invitation and this opportunity to contribute to your discussions about our criminal justice system and the plight of those with serious mental disorder or disabilities who find themselves caught up in that system.

Some of you may recall that I appeared before you sometime last year, I believe, suggesting that perhaps we should give serious conversation to establishing a national mental health and criminal justice commission. In the end, I recall the recommendation made was that the existing Mental Health Commission of Canada should be expanded to make room for this huge area of intersection between law and psychiatry, and I believe the 10-year additional mandate was received at the end of that discussion.

Our view is that there is so much ground to cover in this area that we could not begin to address all the systemic concerns in making a submission to you today. Indeed, I attempted to consult with our members respecting the narrow issue of mental health courts, good, bad or indifferent, and received back dozens of responses describing local practices of mental health courts, no two being the same, and no two of our members having the same perspective on the utility of various incarnations of mental health courts other than to say they sounded like they served some people well and others not so much. Unfortunately, we are not able to provide you with a consensus position or written submissions today, for which I must apologize.

I have to tell you that having sat here and listened to Dr. Simpson, Dr. Baillie and Dr. Bradford, there are about 4,000 things I want to say, but I will focus on what I'm authorized to tell you. I will focus on just a few things from the perspective of defence counsel to individuals with mental health issues or disabilities on which we do agree.

I want to caution here that our association speaks for the lawyers who represent these clients. We do not purport to speak for, although we do advocate the interests of, the clients themselves. We want to be clear that we encourage at every turn the involvement of the clients themselves, current or former users of mental health systems and those who had previous involvement in criminal justice in particular. There is no substitute for the wisdom, experience and expertise that these individuals with lived experience of mental health challenges bring to every aspect of the system and every consideration of reform or even study of the system. It is important, in our view, to ask the clients what needs fixing and what needs to be subjected to rigorous study and research or where pilot projects should be tried.

What do I, as a defence lawyer who works exclusively with seriously mentally unwell clients, want to highlight today? Three things: First, one of the questions I've heard being asked and answered here today is whether the criminal justice system is at all appropriate to meet the treatment needs of seriously mentally unwell individuals. The clear answer there is no. I won't comment further on that. Today, we leave that to Dr. Bradford, Dr. Simpson and Dr. Baillie, forensic psychiatrists with insights on that.

For us, the real question is whether that is really the real question in the first place, or is there another equally pressing — and for us more to the point — question that we should be asking? Namely, is the criminal justice system meeting the legal needs of accused persons with serious mental health issues? In short, our answer to that would be: No, not entirely, not consistently, certainly not over time in every courthouse, but that should be the goal of the criminal justice system, which is, after all, a justice system.

The seriously mentally ill accused person should have their legal needs met at every turn in the form of ready, free access to competent, expert, experienced and private counsel of their choice; to be prosecuted by knowledgeable, fair and compassionate Crown attorneys and to have their matters adjudicated by a knowledgeable, compassionate and fair judiciary who understand the application of mental disorder laws in their courtroom and who will ensure that procedural safeguards are not compromised in favour of perceived treatment needs of accused persons.

In our view, one of the greatest of impediments to ensuring that these clients' legal needs are met is the potential for overemphasis at times on the treatment needs of individuals at the expense of respect for their legal rights to due process and fairness in the proceeding.

Second, is it critical that we increase mechanisms to divert seriously mentally unwell individuals away from criminal justice? In our view, the answer there is "sometimes, but it depends.'' The answer is not a clear "yes,'' in our view, certainly not in every case. Sometimes for some clients, particularly those charged with very minor offences, it must be noted that diversion mechanisms keep them in the courts and in our court systems much longer than a simple plea would do. In our view, mentally ill accused must have the right to choose how they want their cases to proceed, the same as anyone else, so long as they are fit to do so.

It must be remembered as well that diversion programs will link clients to supports; however, there are certainly some clients who really don't want those supports, who find having to go for follow-up to see a psychiatrist and to take powerful antipsychotic medications a whole heck of a lot more coercive than being detained even in pretrial custody where medications are not forced upon them, but they are housed and fed. For some people, forced treatment is worse than detention. In our view, we must respect those capable choices when accused who are fit to be tried make them.

Finally, what is the most concerning aspect of the criminal justice system that we can improve upon and which would have the greatest impact overall on the utility and experience of individuals who are caught up in the criminal justice system? In our view, it is education of justice system participants to ensure knowledge of the law, of options, of resources, of how to interact with people in crisis and respecting their legal and procedural rights while respecting autonomy and self-determination as much as possible.

The follow-up question then is: How would this be accomplished? Mental health courts are one answer. However, they are not the only answer. They are not a complete answer, certainly not in every jurisdiction.

In our view, the ultimate answer is universal, intensive and robust education regarding all aspects of mental disorder law, including Part XX.1 of the Criminal Code, fitness, NCR issues, as well as available resources and contacts for help when there is confusion or lack of knowledge in a courtroom.

We have to resist the urge to throw away our law books when an accused person appears to have mental health issues. Indeed, what we must do is the opposite; namely, enforce every procedural right under the black letter of the law. Otherwise, gross miscarriages of justice will and have occurred.

Senator Jaffer: Thank you both for coming to our committee; we find your presentations very enlightening.

On the delays in the court system, you heard the chair ask another witness earlier that sometimes defence lawyers are blamed for delays in court. Is that a valid criticism? Sometimes it is, but from your point of view, or the association you represent, can you expand on that?

Ms. Szigeti: On behalf of the association, I have to say it's not a valid criticism of our bar, certainly not the members of the association.

There are enormous problems with bail, obviously, and the right to have a bail hearing within a day is out of the window these days when we have to see trial scheduling officers to try and get a date and time for a bail hearing, which is not how the system is meant to operate. That is a systems issue in terms of availability of judges, courtrooms and resources.

A big part of our bar has stopped representing clients on bail hearings on legal aid since the tariff was reduced to two hours, and none of the waiting time or other time is covered. You're looking at $200 to run a bail hearing for a client, and most of the defence bar has stopped providing that service to clients who are dependent on legal aid, which is 99.9 per cent of seriously mentally ill clients who come through criminal justice. They're not getting private lawyers assisting them with that bail hearing. That's something that's become the bailiwick of duty counsel, by and large. We certainly have a problem there.

As for accused persons or their lawyers trying to manipulate the system to get the benefit of dead time, pretrial custody time, that's really not something we're seeing now, given that changes in legislation have meant that clients are not getting the benefit of that. I don't see people manipulating the system in that way.

It's an outrage that people are not getting bail hearings as a result of having to go and wait for the court to make itself available, for resources to be available. Bail is a right.

Senator Jaffer: It would be very useful if you were able to explain all the court hearings you have that have nothing to do with defence counsel. For example, when the date is set, you go to court. Another date is set for bail, for disclosure. What are some of the steps you have to take before the real hearing takes place on bail?

Ms. Szigeti: You're talking about all kinds of appearances. The biggest chunk of that time is waiting for disclosure. So you get a ton of appearances while disclosure is grossly delayed.

Senator Jaffer: What does "ton of appearances'' mean, on average?

Ms. Szigeti: Five, ten. All those delays are built into the system these days, unfortunately.

In terms of looking at the lens of those with mental disorder, I can tell you that there are steps taken in respect of accused persons who are mentally unwell that are unnecessary, in my view, and that do stem from a lack of judicial expertise, respectfully, and lack of expertise by all justice system participants in what to do with someone who is presenting with manifest mental health issues in the courtroom. You do get fitness assessment orders that are unnecessary because there's not a fitness issue. Somebody just wants somebody to see this person and have them go to the hospital and have a psychiatrist look at them. You have 30-day fitness and NCR assessments that are unnecessary because you don't have an NCR issue.

There are a lot of delays that stem from not knowing what you're looking for, simply identifying someone in your courtroom as having a manifest mental health issue and thinking that NCR is the only thing you can look at here. There are a lot of delays and additional steps in respect to our clients that need not happen at all, where they should be processed in the normal course.

[Translation]

Senator Dagenais: Dr. Bradford, if I understood correctly what you said in your presentation, we are facing two failures: that of the prison system, which is unable to provide the care that individuals with mental health issues need, and that of the health care system, which is unable to take them in while ensuring the safety of the population.

Presuming that these situations are in part responsible for some delays in courts of justice, where should we start to draft a report that will be able to recommend the changes needed? We cannot change everything simply by snapping our fingers.

[English]

Dr. Bradford: That's a very good question. One of the experiments I've done has been in mental health courts and seeing somebody who is not eligible for the forensic systems. It wasn't a fitness or NCR issue. If you follow them into bail court, what happens is a different ball game. The fact that they have a mental illness works against them. There is very little input because there's no one there to make the input. The threshold is too high for release, and then off they go into essentially a detention centre where they don't get programming or anything else.

I'm not a lawyer, but I have felt that that threshold applied to protect the public is too high at times, even in moderate offences. Obviously, if it's murder, manslaughter, serious sex offences and high-end offences, that's different. Those are the minority. There is something that goes on at that level. Maybe it's a legal or educational definition, maybe it's a whole lot of things.

In Ottawa, you have a fairly sophisticated mental health system and court. I also work in Brockville, which in some ways is very different. We have a mental health court, and in some ways it works better. The mental health and bail courts are not meant to be coordinated, but they actually are. You can get from one to the other. That's the exception.

In many parts of the country, many parts of Ontario, you don't have anything that looks vaguely like a mental health court. I suspect what happens is people are being inappropriately detained because of a high level of perceived risk which is higher than it is.

Ms. Szigeti: I agree whole-heartedly with those remarks of Dr. Bradford. I also agree with what Dr. Baillie said earlier about the variable application of the standard, depending on how resourced you are, and the mentally ill tend not to have resources.

We need what I have come to term "bail beds,'' and I think we're talking about the same thing. For those individuals who are not getting bail because they're homeless and don't have housing or supports, we should have places for them to stay, if that's the only hole that needs filling for them to get bail.

A lot more of our clients should be out on bail and the major impediment is mental disorder. It's stigma driven because the automatic perception is by virtue of mental disorder you are a heightened risk to the public safety, which I don't think is fair or correct, coupled with homelessness, poverty and social determinants of health and lack of lawyers. All of these things are combined. A lot of clients should be getting bail that are not. I whole-heartedly adopt those remarks and those of Dr. Baillie.

Dr. Bradford: It's not only mental disorder; it's substance use disorder. Maybe in Ottawa you have a drug court and there is a network backing it up. In Brockville and other places you don't have it; so some of the people who come through drug court may be granted bail and have a system to pick them up. If you're not in Ottawa, good luck. Their substance abuse problem works as a deterrent against bail.

Senator Baker: Thank you to both witnesses for their excellent presentations. Dr. Bradford, you've contributed greatly to Canadian society. I want to commend you. I've seen the work that you've done in our institutions; I didn't know you were a professor as well.

Ms. Szigeti, you're the most litigated litigator in Canada. You are on the record — Mr. Chairman, it is about 700 or 800 reported cases, and she only started in the late 1990s.

Ms. Szigeti: That's what you said the last time I was here and I've gone with that since.

Senator Baker: You're up to 800 now. I think that's incredible.

Mr. Chairman, I think what Dr. Bradford said is important. We should have, perhaps, a bail judge who disagrees with the system that's in place in Ontario. I think there is one that you've identified that we could perhaps get as a witness for the committee.

My one question is this: On delay, you said that a major cause of delay is disclosure when it comes to your clients. Should we put timelines on disclosure in those cases to say, in other words, just like a judge who is managing a trial now says, "You will have your Charter arguments in 15 days from now''? Should we, as a committee, recommend that we put in a timeline for the Crown to have some disclosure prior to plea and other disclosure after, or to put a timeline in for all disclosure? Would you agree with that? And what do you see wrong with that? We're not asking defence counsel to disclose, although I don't know if you would object to that.

Ms. Szigeti: We would object to that.

Senator Baker: But as far as Crown disclosure is concerned, what about the time period?

Ms. Szigeti: Anything that would force the Crown to produce disclosure when they have it immediately would certainly be helpful.

What are the remedies? Can you stay a charge as you could with the Askov cases, when they don't come to trial within a certain amount of time? Can you stay a criminal charge if disclosure is not produced within a defined period of time? I don't know. It would be great if you could, but I doubt that you can.

Senator Baker: You mean, if we put in the timelines?

Ms. Szigeti: I guess I'm asking what the remedy would be if the timelines were not complied with, if you did put them in.

Senator Baker: Do you object to the timelines for disclosure?

Ms. Szigeti: No, it's a problem for defence and clients in pre-trial custody, certainly, to not be receiving disclosure. Nothing can happen, in my view, until you've had an opportunity to review that disclosure.

Senator Baker: We have heard evidence that the 11(b) arguments, where you get these cases thrown out and persons who are guilty of an offence are not even tried, are a major problem for disclosure. You see no problem with us recommending we do that with disclosure, that the Crown be forced to disclose within periods of time just as the Supreme Court of Canada has set time limits from charge to trial, and so on?

Ms. Szigeti: I don't see a problem with it, speaking personally. I haven't had time to canvass the whole 1,400-strong association, but I don't see what problem there would be in compelling the disclosure. Obviously, what they don't have they can't give you, and when they get it they provide it to you. Fair enough. I 100 per cent don't see a problem with it.

Senator McIntyre: Thank you both for your excellent presentations. In addition to court liaison and diversion programs, we have mental health courts and Part XX.1 of the Criminal Code to deal with mental disorders. Under the mental health court system, the judge has to do more than determine the guilt or innocence of the accused. He has to ensure that the accused doesn't appear again in court on subsequent charges.

Part XX.1 of the Criminal Code is a little more difficult, as you know. The person suffering from a mental health issue commits a criminal act, and he appears in court. The court orders a psychiatric evaluation and the evaluation will determine that the accused is either unfit or fit to stand trial or not criminally responsible on account of mental disorder. The court can make a disposition and if it doesn't make a disposition, the matter is remanded to a review board to deal with the matter, and then the review board has three decisions to make: absolute discharge, conditional discharge or the ordering of detention in a psychiatric facility. That's a little more complicated.

Would you agree with me that, for minor criminal offences, these people should not be sent before a review board and they should not be dealt with under Part XX.1 of the code? They should be dealt with through the mental health court.

Dr. Bradford: They are dealt with under the mental health court, generally. Again, this comes to some of the variation in diversion. For example, when diversion was set up in Ontario, the first experiment was Andre Berzins', the Crown attorney in Ottawa who set it up as an experiment, and I helped him. At that level we had a level of diversion which was diversion based on charges only. It didn't matter if you had a mental disorder or anything else: if the charges were so minor you didn't go anywhere near mental health court. It was just an automatic diversion away from mental health court.

Part of the problem is that when you go into mental health court, you get caught up in the mechanism of that court. That type of diversion I don't think occurs now — I think it's fallen away — but, yes, that would get rid of minor charges whether or not they have a mental disorder. If they had a substance or mental disorder problem, there were court liaison workers who could redirect them for substance abuse care, but they wouldn't get anywhere beyond that level. So yes, that's where I think it belongs.

Senator McIntyre: Before I became a senator, I had the privilege of serving with the New Brunswick Review Board, and I found that one of the biggest flaws in the system was that the court was too quick to find young people charged with minor criminal offences either unfit to stand trial or fit to stand trial, but not criminally responsible on account of mental disorder. Then we as a board were dealing with hundreds of cases that should have been dealt with under the mental health board. They were sending very few people to the mental health court.

Dr. Bradford: I agree.

Ms. Szigeti: I heard Dr. Bradford say he agrees, and I also agree whole-heartedly. My practice now is exclusively devoted to representation of people before the review board and on appeals. I have a sub-specialty of those who come in with very serious offences like homicide and serious sexual assault. Over 23 years I have had hundreds, if not thousands, of people through my practice who were in the review board system due to mischief and property offences — things that ended up costing them 10 or more years of their liberty because they were not treatment responders, they were not rule followers and they could not reach the absolute discharge, or conditional discharge for that matter, because they were chronically unwell or unable to comply.

That wasn't a good place for people who came in because they urinated in a public place.

Senator McIntyre: On this matter, do you think we should make a recommendation that an amendment be made to the Criminal Code?

Ms. Szigeti: I think we should enact and proclaim into force the grey-shaded sections that were there for the 10, 15 or 20 years that I kept holding my breath. There should be capping provisions to Part XX.1 and if you're going to review that legislation I'm going to ask you once again, very nicely, as I think I did when I appeared here earlier before it became law, to get rid of the high-risk offender stuff that locks people onto units for three years. While we're clawing back on some of this legislation there is another one you might want to revisit. I refer to the kinds of delays with respect to rehabilitation that that would cause for a person who is not able to be rehabilitated for a chunk of time that they are, by law, to remain on a unit.

Senator Joyal: The first question is to Dr. Bradford. Has your initiative of a diversion system that you have put into place, which seems to be certainly solving part of the problem, been imitated somewhere else in Canada, to your knowledge? Or is it limited to major centres of Ontario?

Dr. Bradford: Well, it was mandated in Ontario under the Attorney General as a principle. The practical rollout is different, so it may be different in Timmins than it is in Ottawa and Toronto.

Again if you look at my slides, diversion works but it's resource-sensitive. It's easier to get the resources in downtown Ottawa and Toronto than it is in Timmins. Now I'm picking on Timmins.

Senator Joyal: Have you anything against Timmins?

Dr. Bradford: No, no, I don't have anything against Timmins. I love Timmins. But you know what I mean.

The principles are in place, but they are both inadequately applied in many cases and, at the very least, they are not applied the way they should be and then, for reasons that I'm not sure about because a lot of it has to do with the Crown attorney and how much they put their mind to it, so even though it's mandated it's unequally applied. It is sometimes not applied at all because of resources and then unequally applied and then this creates this other problem I was talking about.

Ms. Szigeti: The Crown discretion with diversion is hugely variable. There are certain offences in there that are divertible and certain ones that are out. Then there are a whole bunch in between that is entirely Crown discretion driven, so very variable in terms of whether it will become available.

Senator Joyal: Is the situation similar in other provinces of Canada? Are you aware?

Dr. Bradford: I've been to every court in Canada. British Columbia is relatively sophisticated and Alberta is relatively sophisticated. Most jurisdictions have something but the sophistication varies. I think generally across Canada the fitness NCR route works fairly consistently. It's the group outside and, remember, I said we divert 85 per cent of the people, at least in Ottawa, that have a mental disorder.

Senator Joyal: It is a very large number.

Dr. Bradford: That's the group I'm worried about. They're the ones who disappear with all kinds of problems.

Senator Joyal: Ms. Szigeti, you referred to the situation that 99.9 per cent of mentally ill people resource to legal aid. Is this a factor for slowing down and clogging the court?

Ms. Szigeti: Oh, the fact that the lawyers who are assisting the clients are on legal aid retainers, necessarily? Part of the difficulty is that representing this client population is incredibly time-consuming. Meeting with someone who is acutely mentally unwell takes on average three or four times as long as it would take to have the same communication with someone who is not experiencing those types of challenges.

At the same time, this is not something that's built into your ordinary legal aid retainer. You're given a couple of hours to deal with a bail for someone; it's going to take you longer than that to get through an initial client interview.

I don't know how it contributes to delay other than a lot of lawyers in the private bar simply have felt that they could not service this client population given the constraints within our legal aid system.

You have a lot of unrepresented mentally ill people; you have duty counsel trying to expand beyond what is their appropriate role to fill that gap. To their credit, Legal Aid Ontario has come out recently with a mental health strategy that was three or four years in the making and they've considered some of the particular challenges in this area and will be trying to address them further in the coming years.

Certainly, every once in a while we have a very high-profile case in the media of someone who is clearly resourced and clearly mentally unwell who has hired top-notch lawyers, and their cases do seem to come up quickly and are addressed in the court. But it's not because legal aid lawyers are providing less of a service. It's just that our hands are incredibly tied with the limited resources we have and the incredible demands of the client population.

Dr. Bradford: I have experience where you've had private counsel going on bail even in cases of murder and manslaughter and being successful, but they hired me as part of their risk assessment. It's a resource rich program. Other people on assault, you should have got bail and get no bail at all.

Senator White: Thank you both for being here. We keep talking about a system that's broken and about how that system is more broken or we should be adding to a broken system. In Durham region in 2006 they instituted a case where there was a social worker who looked at every single charge laid against a young offender and the case, if there was a mental health incident, was actually diverted from that system to the Boys and Girls Club, Lakeridge Mental Health and the Pinewood Centre because almost always there's a concurrent disorder for most of these young offenders.

They took out 60 per cent of the cases in the first year. And do you want to know the groups that complained about that process? It was defence lawyers, the bar and the Crown prosecutors. The chief Crown said we were going to lose positions if this continued in the youth court.

My concern, when I hear people talk about a broken system and we need to add more — no disrespect to lawyers meant, although it may be implied — lawyers to the system. I don't see them being the solution because they actually don't have the expertise to solve this problem. We need to get people out of the court system that have mental health issues unless they're such a great danger that we have to protect the public. But that's not the majority. Wouldn't you agree, doctor?

Dr. Bradford: I agree. I'm proud of the fact that we divert roughly 85 per cent of the people because we are doing our job properly. The ones coming in are serious offences with serious mental disorders. That's what we should be dealing with. I'm familiar with the program in Durham. Of course, it's young offenders and it does very well. But on these 85 per cent of adults that are then left, you don't have things like that. You have bits and pieces. We may have something decent in Ottawa and not decent in Timmins. I'm picking on Timmins again.

You know what I mean; it's very unequal and it's hard to predict what's going to happen.

Senator White: We have $210,000 in funding — it's still going on Durham now by the way — to run that program as a pilot project. The province funded it fully, hired four part-time people to do that program, and it is easily dealing with 60 per cent of the mental health youth cases. I have to tell you, that's a heck of a better saving than the $118,000 to keep one person in a penitentiary or in a remand centre bed, right?

Dr. Bradford: I agree.

Ms. Szigeti: Can I take a minute to congratulate Durham on something else I'm sure you're aware of? Mike Newell, who is a Crown in Durham, has also put together PASE, a similar program with respect to older adults when there's dementia at play to try and figure out how to get around the domestic charging policies and to link people with resources in the community in terms of care for older adults.

I think Dr. Bradford and I make the same point. We're talking about identifiable groups in addition to mental health and addiction issues. They are either young persons or older adults. It's much easier to capture that population. Any accused in criminal justice could develop serious mental health issues, have an acute crisis, become unfit at any time in the proceeding in any courtroom with no resources, with no mental health coordinator, with no diversion available, which is why we say you've got to have some universal education rolled out so that any courtroom, any courthouse, any judge, any Crown attorney has at least a working, functioning understanding of Crown policy on diversion and everything else.

Senator Batters: Thank you very much for both of you for being here and thank you also for all of the work that you do for people who are mentally ill in Canada.

Dr. Bradford, you had some very interesting slides you provided us with. I was struck by one of them where you say we live at the time when arguably the largest mental health facility in the United States is the Los Angeles County Jail, close behind this is Cook County Jail in Chicago, the same trends exist in Canada.

Could you speak further about that? I note that since 2009, incoming offenders in the Correctional Service of Canada have been screened for mental health concerns. There's one finding that 28 per cent of incoming male offenders have a confirmed mental health diagnosis.

I'm wondering if you could speak about that and let us know briefly what programs are available to federal inmates with a mental health diagnosis while they're incarcerated. That would be helpful.

Dr. Bradford: The federal correctional system has made some efforts to deal with mental disorder within the system. They have regional psychiatric centres. The problem was the Chalk report, which was in 1976, and Rhodes Chalk was assistant dean at the University of Ottawa. He set up a recommendation with what is now Correctional Service Canada to have treatment facilities in every province. These were very similar to what subsequently became St. Lawrence Valley. It was very well-staffed. It was essentially a prison hospital, if I could call it that, and unfortunately, other than Saskatoon — and Saskatoon came up with the closest to their model — the rest of it never worked.

If you look at Ontario, the largest province, it has never reached anywhere like it should have. If that vision had come into being we would be having a different conversation now, other than perhaps Saskatoon and Abbotsford, British Columbia. Certainly, Ontario is not even on the radar in terms of providing the proper treatment. New Brunswick and the Maritimes a little bit, but not as part of the original plan. It's just that it sort of happened that way, but that original plan was great.

Senator Batters: Ms. Szigeti, thanks very much for bringing up the pretty surprising example you did of the Ontario provincial government imposing this new two-hour limit, $200 of, basically, compensation for lawyers who are dealing with bail hearings. I'm wondering when that change was made and if there is anything being done to advocate against that. What was the previous limit?

Ms. Szigeti: I wish I had a better historical understanding. The two hours that are available for bail have been in place for a number of years now. I would say probably at least three or five years, and that's when the bar stopped, essentially, providing the service of bail. There is a lot of ongoing advocacy to fix the situation and to bring the defence bar back. The Ontario government actually did increase financial eligibility for legal aid and invested a lot of money, sometime last year, into all of this. The CLA has been working with Legal Aid Ontario. You could use some of that money for new services, so it is just a question of framing funding bails properly as a new service or a pilot project now.

It is a question of whether you can fit it in. You are not supposed to be expanding the existing tariff using this money. You are supposed to be using it for trying new things and new services. So it's a question of whether or not we can fit any of this money into those kinds of things.

There's a ton of advocacy. The Criminal Lawyers' Association, for the last three years that I have been on the board, has made this our number one priority, to advocate with the Ontario government and with Legal Aid Ontario to fund representation on bails more appropriately, to bring the defence bar back into providing services on bail hearings at legal aid rates.

What we should be looking at is at least five or six or eight hours.

Senator Batters: As you pointed out before, it is definitely complicated by the needs of clients with mental illness, absolutely.

Ms. Szigeti: The law of bail has become more complicated as well. It is just running longer bail hearings.

Senator Batters: Yes, for sure. If you wouldn't mind providing us with a bit more information about that, I'd be interested to know a little bit about that, maybe even just a copy of a recent advocacy letter or something like that.

Ms. Szigeti: Absolutely.

Senator Batters: To me, it could prove to be a major factor in the whole broken bail system, at least in Ontario.

Ms. Szigeti: A hundred per cent. Thank you for that. We will certainly follow up and send you the information.

The Chair: That wraps it up. I want to thank you for accepting our invitation and for providing a very informative and helpful contribution to our study. It is very much appreciated.

(The committee adjourned.)