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Getting a fair shake

Culture

Getting a fair shake

The current state of the judicial system’s relationship with the mentally ill

The justice system in Alberta is similar to many institutions in that critics think it looks at the actions of individuals over the individuals themselves.

If a system is built to punish those who choose to commit an action against the law, then looking at actions alone could theoretically work — if we operate under the assumption that those committing crimes are always in control of what they do.

But what about those who aren’t necessarily aware of their actions and the consequences they might bring about?

In order to rectify this problem, people from multiple disciplines and life experiences, from advocates to members of the judicial system, have raised suggestions about how to make sure those with mental disorders get a fair shake.

As a judge in the Alberta provincial system, Larry Anderson has dealt with many cases involving the mentally ill.

“Dealing with the mentally ill is one of our biggest challenges,” he said.

A large factor contributing to that challenge is how broad the definition of mental illness is.

“One of the things we have to be careful of is how we define mentally ill, because it can comprise a very large segment of the population,” he said. In court, this definition differentiates those who are aware of the crimes they are committing from those who are not.

According to Anderson, the legal system itself is one that’s “predicated under a number of assumptions, which include the assumption that … we all have free will, and we all foresee consequences and that we choose to do things that are either right or wrong.”

In a paper from Statistics Canada that looks into the issues of mental health and the judicial system, the authors say “defining what constitutes mental illness is a significant challenge.”

One definition comes from the Alberta Mental Health Act, which defines a mental disorder as “a substantial disorder of thought, mood, perception, orientation or memory that grossly impairs judgment, behaviour, capacity to recognize reality, or ability to meet the ordinary demands of life.”

As a result, a person affected by a mental illness could be committing crimes while under impairment and could be deemed “mentally unfit to stand trial.”

Statistics Canada defines a person who is mentally unfit to stand trial as “unable on account of mental disorder to understand the nature or object of the proceedings, understand the possible consequences of the proceedings, or communicate with counsel.”

How, then, can the courts ensure the mentally ill are treated fairly?

Angela Decoteau, a support worker for the inner-city housing facility Ambrose Place, said a significant portion of mentally ill people she has dealt with have been involved with Alberta Justice in some way.

She said when it comes with the experiences these individuals have had with the institution, the majority of them are all negative.

According to Decoteau, a large reason the mentally ill have these negative experiences is a lack of basic understanding.

“They don’t understand the system,” she said.

“If you’re dealing with mental health issues, you doubly don’t understand that system. And I think that some of (those mentally ill individuals) feel like they have to put in a guilty verdict because they did it.”

With so many complaints directed at the rocky relationship between those with mental disorders and the law, a question worth asking is: how can the system be improved?

Anderson said steps have been taken over the past few years all across Canada to deal with this issue. One way the system has been improved, according to Anderson, is the development of mental health courts in some jurisdictions across Canada.

“That is a court which takes a more therapeutic than punitive approach to those who would fall into that category,” he said.

Alberta has taken a different approach to improving the system for mentally ill individuals — one that involves mental health diversion.

So, what exactly is mental health diversion?

“Depending, of course, on the nature and seriousness of the offence, a person who is mentally ill may have the option, after (their) situation is assessed, to be diverted out of the criminal justice system and into a more therapeutic type of stream,” Anderson said.

Sometimes a person may get in trouble with law because they are unaware of their illness, either because it is undiagnosed or in the early stages of onset.

“(Sometimes), mental health (issues don’t) kick in until they’re a young adult, and then, with no meds, they don’t understand (the judicial) system,” Decoteau said. “You could even talk to them for a couple of hours, and they still wouldn’t know all the ins and outs.”

The judicial system is complex, but Decoteau says having a designated advocate can make a big difference for people dealing with mental illness. In this supportive role, Decoteau has been able to accompany some patients to court and occasionally provide a voice when they are unable to use their own.

“I think there are a few very good feel-good stories that I hear about,” she said. “I think with having advocacy, it’s getting better.”

Finally, Anderson believes it’s vital to make sure that everyone involved in the legal system has a more thorough understanding on the topic of mental illness.

“Education is key here, and it’s a continuing education,” he said. “And not just judges, but counsel and police and other players who can assist them to recognize and identify the differences in a persons’ mental being.”

Ultimately, bringing about progress to an institution as massive and time-worn as a criminal justice system is not one that happens overnight.

“There has been a greater focus and recognition on that, but it’s an ongoing process,” Anderson said.

Cover illustration by Alley MacLean.