Provincial HSJCC

The Honourable Robert Nicholson
Minister of Justice and Attorney General of Canada
284 Wellington Street
Ottawa, Ontario K1A 0H8


October 15, 2012


Dear Minister Nicholson:

 

Re: Review of the “Not Criminally Responsible on Account of Mental Disorder” Defence

 

We are writing to you on behalf of the clients and partner organizations of the Provincial Human Services and
Justice Coordinating Committee (HSJCC) in Ontario. The Provincial HSJCC is mandated by the Provincial
Strategy to Coordinate Human Services and Criminal Justice Systems in Ontario (1997) and established to
coordinate resources and services, and plan more effectively for people who are in conflict with the law.
Priority consideration is for people with a serious mental illness, developmental disability, acquired brain injury,
drug and alcohol addiction, and/or fetal alcohol spectrum disorder. Our role is to facilitate the exchange of
information and promising practices, identify provincial level challenges, and work collaboratively with the
Government to resolve challenges within the human services and justice sectors.


The Provincial HSJCC commends the Federal Justice Minister and the Government of Canada for your
commitment to improving the safety and security of all Canadians. Although we understand that the intention of
the proposed review of the “Not Criminally Responsible (NCR) on Account of Mental Disorder” Defence under
the Criminal Code of Canada is to promote greater protection to the members of our society, we strongly
recommend that extensive stakeholder consultations inform this review process. We urge the Federal Justice
Minister and the Government of Canada to hold consultations with individuals with lived experience of mental
health disabilities, consumers/survivors, community health and addictions representatives, legal experts that
specialize in the area of civil liberties, police officers, medical professionals, as well as organizations like the
HSJCCs that are inter-disciplinary, inter-sectoral collaboratives that support individuals with mental health
disabilities who come into contact with the criminal justice system. In particular, we would encourage
consultation with the Mental Health Commission of Canada's Trajectory Project which is currently in the
process of its own review of the NCR ruling.


It is imperative that the needs of people with mental health disabilities be taken into consideration during this
review of the NCR provisions. Persons with mental health and human service needs face multiple barriers to
accessing the social determinants of health, such as housing, employment and education, and they are often
vulnerable to criminalization. Incarceration is a double-edged sword for individuals with mental health
disabilities. On the one hand, research indicates that the correctional environment can aggravate pre-existing
mental health conditions, and impede recovery and successful transition back into the community. Within the
justice system, these individuals are often victimized and face stigma and discrimination due to their illnesses.
Yet, the justice system sometimes provides the first point of contact for accessing mental health and human
services that can have a positive impact on the lives of those with mental health disabilities.


The Criminal Code currently protects Canadians from being punished for actions of which they are incapable of
appreciating the wrongness, nature or quality due to a mental disorder, or a "disease of the mind" as it is defined
therein. Justice within this context is understood as ensuring protection of the public from significant risk while
simultaneously ensuring that opportunities for treatment are provided by the forensic system for accused persons
found NCR. In Ontario, the Ontario Review Board (ORB) assesses each individual who comes under its
jurisdiction through Part XX.1, the “Mental Disorder” provisions of the Criminal Code with the express
mandate of weighing the rights of the individual with the need for public safety in each case. If found NCR, the
Review Board ensures that opportunities for individualized psychiatric care with a focus on rehabilitation are
made available. Guided by the 1999 Winko decision, the Review Board will not discharge any individual if
they pose a significant threat to the safety of the public. For the majority of people who enter the forensic mental
health system this often means detention in a forensic hospital with access to the community governed by the
terms of the Review Board Disposition. This detention often extends longer than would have been mandated if
they had been convicted of a crime. Further, until an absolute discharge is granted, the individual remains
subject to the authority of the Review Board.


The Provincial HSJCC strongly urges extensive consultation with stakeholders before any significant changes
are made to the NCR provisions of the Criminal Code, particularly as only a small percentage of individuals
found NCR are accused of serious violent crimes. The Provincial HSJCC welcomes the opportunity to meet
with the Federal Justice Minister to further discuss this issue and to assist the Department of Justice in any way
necessary.


About the Human Services and Justice Coordinating Committees in Ontario


The Human Services and Justice Coordinating Committee (HSJCC) network is comprised of 14 Regional
HSJCCs, 37 Local HSJCCs and one Provincial HSJCC. Each HSJCC is a voluntary collaboration between
health and social service organizations, community mental health and addictions organizations and partners
from the justice sector including crown attorneys, judges, police services and correctional service providers.
The Regional and Local HSJCCs coordinate communication and service integration planning among health,
social services and criminal justice organizations within specific regions. Structurally, the Local HSJCCs
provide input to the fourteen Regional HSJCCs which in turn provide input to the Provincial HSJCC. As well,
the entire network of 52 committees supports knowledge transfer across the province.


The Provincial HSJCC consists of regional chairs representing their Regions and ex-officio members from
important stakeholder groups such as Corrections Services Canada, the Ontario Provincial Police and the
Ontario Association of Chiefs of Police. There are also ex-officio representatives from the Ontario Provincial
Ministries of the Attorney General, Children and Youth Services, Community and Social Services, Community
Safety and Correctional Services, and Health and Long-Term Care.


For more information about the HSJCCs, please visit: http://www.hsjcc.on.ca/


Thank you for your attention to this matter. We look forward to your response. For further discussion, please
feel free to contact us directly at the information below.


Sincerely,


Vicky Huehn
Co-Chair, Provincial HSJCC
Executive Director,
Frontenac Community Mental Health Services
613-544-1356 ext. 2401
vhuehn@fcmhs.ca


Katie Almond
Co-Chair, Provincial HSJCC
Probation and Parole Officer,
Ministry of Community Safety and Correctional Services
416-314-3771 ext. 223
katie.almond@ontario.ca


Cc: The Honourable Vic Toews, Federal Minister of Public Safety
The Honourable John Gerretsen, Attorney General of Ontario

 

pdf October 2012 - PHSJCC Letter to Minister of Justice re NCR Review 2012-10-15 (59 KB)

Provincial Human Services and Justice Coordinating Committee
Response to the Ontario Human Rights Commission
Public Consultation Paper
“Human Rights Mental Health Strategy”
Submitted by: Provincial Human Services and Justice Coordinating Committee

December 24, 2009

Introduction:

The Provincial Human Services and Justice Coordinating Committee (HSJCC) commends the Ontario
Human Rights Commission (OHRC) in its development of a new Human Rights Mental Health Strategy.
We value this opportunity to provide feedback on the OHRC public consultation paper, and we also
welcome the opportunity to engage the OHRC in discussions regarding justice, mental health and
human rights issues.

Based on the Provincial Strategy to Coordinate Human Services and Criminal Justice Systems in Ontario
[1997], the HSJCCs were established in response to a recognized need in the province to coordinate
resources and services, and plan more effectively for people who are in conflict with the law. Priority
consideration is for people with a serious mental illness, developmental disability, acquired brain
injury, drug and alcohol addiction, and/or fetal alcohol syndrome. The HSJCCs are a joint collaboration
between the Provincial Ministries of the Attorney General, Community and Social Services, Children
and Youth Services, Health and Long-Term Care, and Community Safety and Correctional Services, as
well as various community mental health and addictions organizations across Ontario. All Ministry
representatives are ex-officio members of the HSJCCs.

The Regional HSJCCs coordinate communication and service integration planning between health,
criminal justice, and developmental service organizations within specific regions, and the Local HSJCCs
provide input to these regional groups. The Provincial HSJCC, consisting of regional chairs and exofficio
Ministry representatives, functions as a provincial planning body.
The Provincial HSJCC is submitting the following key messages in response to the OHRC public
consultation paper. The purpose of this submission is to share our knowledge and expertise of justice
and mental health issues across the province, and provide our advice and recommendations for the
development of the OHRC Human Rights Mental Health Strategy.

The Provincial HSJCC recognizes the importance of the directions proposed in the OHRC public
consultation paper as a starting point to addressing mental health issues from a human rights
perspective. Individuals living with mental illness who come into contact with the justice system face
unique human rights issues. Below are some areas of concern within the human services and justice
systems that the OHRC should consider undertaking as part of its focus on human rights, mental health
and criminal justice.

Areas of Concern for Justice and Mental Health:
1. Individuals living with mental illness who are in contact with the justice system face multiple
barriers when attempting to access mental health services. The negative impact of stigma
often increases when individuals living with mental illness come into contact with the criminal
justice system. Mentally disordered offenders, as well as offenders labelled “high risk” or
“forensic,” are often perceived as being violent. As a result, they experience increased levels of
overt and covert discrimination. In fact, information from the field indicates that mentally
disordered offenders are often victimized in the correctional system, and once they are
released from custody, they are often screened out of support services by physicians,
psychiatrists as well as community mental health programs. Anti-stigma campaigns and antidiscrimination
initiatives are necessary to educate service providers and to help reduce the
systemic discrimination that exists in the justice system and health care system against
offenders with mental illness. Improved collaboration between forensic programs and the civil
mental health system is required to ensure that forensic clients are integrated into their local
communities.

2. Mentally disordered offenders who are on remand are not receiving adequate services and
supports. There are more clients on remand in Ontario than convicted clients, and many of
these clients have a mental illnesses and/or addiction. Corrections services are unable to
conduct psychiatric assessments and provide support for clients on remand until they have
been sentenced by the court. Without a psychiatric assessment, and without a treatment plan
mandated by the court, these clients on remand are not receiving adequate mental health and
addictions services while they are awaiting their trial date. Across the province, mentally
disordered offenders, both adults and youth, on remand are thus being held in correctional
facilities without being given adequate assessments, treatments or supports. There is a need
to improve the capacity of the remand centres and increase the services and supports that are
being offered to mentally disordered offenders. Support from the OHRC is necessary to
advocate for changes in provincial policy to better coordinate services and meet the needs of
clients while they are on remand.

3. Collaborations between police and mental health services are working to reduce the
criminalization of individuals with mental illness. New investments have increased the access
and availability of crisis intervention teams (CITs) and mobile crisis intervention teams (MCITs)
in Ontario. Collaborative police/mental health initiatives are successful; however, pressures on
police, CITs and MCITs are increasing. A high population density is needed to sustain full-time,
around the clock, MCIT services; therefore, MCIT programs often operate out of large urban
centres such as London, Ottawa and Toronto. More community resources must be put in place
in urban and rural areas so that the police are not the default responders to mental health
crises. In rural areas, creative police/mental health initiatives must be supported to offset the
absence of MCITs. In order to reduce the criminalization of individuals with mental illness, it is
necessary to increase community based crisis intervention services and the capacity of mental
health and addictions programs across the province.

4. Mental health courts and court support programs are working to reduce the criminalization
of mentally disordered offenders. Across Ontario, mental health courts have been established
by dedicated judiciaries, crown attorneys, police and community justice and mental health
service providers to help divert mentally disordered offenders away from correctional
institutions. However, the existing court support programs do not have the capacity to manage
complex cases involving individuals with concurrent disorders and/or dual diagnosis.
Information from the field indicates that an estimated 80 percent of people referred to mental
health services from the justice system have an addiction problem or concurrent disorder. In
order to reduce the criminalization of mentally disordered offenders, further investments are
needed to increase the capacity of the existing court support programs and expand the range
of programs available to individuals with concurrent disorders and/or dual diagnosis.

5. Police records that results from contact with the police under the Mental Health Act pose
barriers for individuals with mental illness. When police officers escort individuals in crisis to a
hospital voluntarily or involuntarily through apprehension under the Mental Health Act, this
generates an occurrence with Police Services and creates a non-criminal police record. This
type of police file frequently has negative repercussions for individuals if they are required to
receive a police records check or a “vulnerable sector screening” for the purpose of working or
volunteering with a vulnerable population. Having a police record also increases the stigma
experienced by individuals with mental illness. As well, people who have mental health police
records may also be refused entry into the United States at the border.
The Provincial HSJCC has high regard for community safety, and understands that police mental
health records provide important information about a client’s history to police officers
responding to mental health crises. However, mental health apprehension records should only
be accessible to police officers to assist them to better respond to mental health crisis
situations. Support from the OHRC is necessary to create law reform to ensure a standardized
protocol across the province regarding the proper use of police mental health records.

6. Individuals from racialized communities are over-represented in the criminal justice system.
Across the province, individuals from Aboriginal and ethno-racial communities are coming into
contact with the justice system and being incarcerated. Individuals from these communities
have unique needs and face multiple barriers to accessing the social determinants of health,
including housing, education, and employment. These communities are vulnerable to mental
illness, addictions as well as criminalization. Support from the OHRC is needed to foster
supportive communities and develop strengths-based approaches to protecting these
individuals from mental illness, addictions as well as preventing them from coming into contact
with the justice system. The OHRC should advocate for improved access to employment
opportunities through the expansion of recognition of foreign trained professionals. As well,
the OHRC should advocate for infrastructure and economic development investments in First
Nations communities. It is recommended that the OHRC also advocate that the Provincial
Government develop targets to improve access to mental health and addiction services for
ethno-racial communities, including improving access to language interpretation.

7. Cross-sector education is needed for all sectors in the human services and justice systems
(i.e. criminal justice, mental health, addictions, acquired brain injury, dual diagnosis and fetal
alcohol spectrum disorder). As part of strengthening the justice and mental health workforce,
it is important to educate human services staff regarding the justice system, and educate
justice staff regarding the mental health and human services systems. In particular, human
rights and cultural competency training is required for service providers to equip them to
address the unique needs of the growing population of clients from diverse backgrounds who
are experiencing mental illness and coming into contact with the justice system.
Comprehensive cross-sector education is necessary to adequately coordinate human services
and justice programs and initiatives across the province.

The Provincial HSJCC appreciates this opportunity to provide feedback to the Ontario Human Rights
Commission. We recommend that the unique needs of individuals living with mental illness who come
into contact with the justice system be addressed and the preceding issues be considered when
moving forward with the OHRC Human Rights Mental Health strategy. The Provincial HSJCC welcomes
the opportunity to partner with the OHRC regarding justice, mental health and human rights issues.
For further information and discussion, please contact:

Vicky Huehn
Co-Chair, Provincial HSJCC
Executive Director,
Frontenac Community Mental Health Services
613-544-1356 ext. 2401
vhuehn@fcmhs.ca

Lisa Cameron
Co-Chair, Provincial HSJCC
Crown Attorney,
Kawartha Lakes and Halliburton
705-324-1420 ext. 255
lisa.cameron@ontario.ca