The Mentally Ill: How They Became Enmeshed in the Criminal Justice System and How We Might Get Them Out

5. The Numbers are Growing

While the impact of the various contributors is not precisely known, we do know that the numbers of mentally ill individuals in the criminal justice system is on the rise. Since the early 1990's this population has been growing at the alarming rate of up to 10% or more per yearFootnote 6. This is juxtaposed data which shows that from the early 1990's the actual number of arrests has steadily decreased.

An early explanation has it that the humourless political climate with its zero tolerance, tough-on-crime - no matter how trivial attitude, is resulting in arrests for situations that might have been handled with police discretion in the past. Related to this is the explanation that the police with their heightened fear of liability and sense of accountability are more inclined to “go by the book”. It is safer to lay a minor charge and have the mentally disordered individual processed like any other criminal than to stick your neck out and do something creative like take the individual to a psychiatric emergency and forego the laying of a charge. As a result, now with the more attractive provisions contained in the Code, many more accused who have committed “not so serious” nuisance offences are entering the criminal justice system being found unfit and raising the defence of not criminally responsible on account of mental disorderFootnote 7. There is less concern regarding disproportionate consequences.

A significant problem results when you have a collision course of decreasing resources and increasing numbers of mentally disordered accused with verdicts of NCR or unfit to accommodate. Here, we have also been caught by judicial decisions which exacerbate the problem. It is the obligation of the Review Board to, for each accused, “... taking into consideration the need to protect the public from dangerous persons, the mental condition of the accused, the reintegration of the accused into society and the other needs of the accused, make one of the following dispositions that is the least onerous and least restrictive to the accused”Footnote 8. That is the Review Board’s statutory mandate. The person in charge of the hospital where the accused is detained or is to attend is a party to our proceedings as is the Attorney General and, of course, the accused. Appeals have been successfully made by the hospitals against Review Board Dispositions based upon the contention that, for example, there is no room at the hospital to which we ordered the accused to attend. We have been told by the Courts that we must not make Dispositions unless we know that the disposition can be effected. What the Review Board is then left with is our statutory mandate to impose the “least onerous and least restrictive disposition” compromised or limited by the resources with which the province has chosen to equip itself. Accordingly, if the Review Board is of the view that the least onerous and least restrictive disposition is that an accused be discharged conditionally to live in a place in the community approved by the administrator but the administrator says there is no such place, the disposition should not be made. The provincial governments are apparently free to defeat the statutory scheme set-out in the Criminal Code when they decide that money will not be spent on adequate resources for the mentally disordered accused. Hospital Administrators are able to defeat the scheme by indicating that the resources that are available are not appropriate. As a result, individuals who were first of all not served well by the civil system are now, as forensic patients, not doing any better.

This predicament causes some to wonder whether we are not creating a situation where we have parties to our proceedings of differing status; those who must comply with our orders - the mentally disordered accused; and, those who don’t need to comply with our orders - the hospitals or provincial ministries of health.

We are also receiving word from the Courts that if the least onerous and least restrictive disposition is X, we must order X, and not order Y. This would appear to be at odds with the proscription against making dispositions unless we know that they can be effected. And finally, while we understand the problems associated with making definite assertions with respect to dangerousness, we must not maintain jurisdiction over an accused unless we can state positively that they are a significant threat to the safety of the public. Some say that we are unable to make such an assertion except in the most extreme cases.