The Criminal Justice System and Mental Health

An engaging panel discussion took place at Robson Hall on Thursday, February 14th to discuss what is a highly prevalent and yet under discussed theme in the Criminal Justice System: mental health. With the implementation of a new FASD court, headed by Judge Harvey, to occur soon in Manitoba, this panel presented itself at just the right time. Present on the panel to discuss this topic was:

• Tony Kavanagh

• a past senior Crown counsel turned defence lawyer with his own firm KavaWood that is involved with the Canadian Mental Health Association

• Nancy Fazenda

• a past Legal Aid lawyer turned community prosecutor in the ICAP unit of the Provincial Crowns office

• Graham Wyllie

• the Executive Director of FASD life’s journey

• and Dr. Hygeia Casiano

• a forensic psychiatrist

The panel began with everyone introducing themselves as well as a brief overview of their experience with the intersection between mental health and the Criminal Justice System. Tony began by articulating that mental health, and not just the official diagnoses, “seeps through” the Criminal Justice System, as Crown counsel or defence. He further mentioned that often times the issue of adequately addressing clients’ mental health is complicated or blurred when it co-occurs, as it often does, with marginalization and addiction issues. Being in a unique perspective, similarly to Nancy Fazenda, to have the perspective of defence and Crown, Tony ponders that as a Crown, you did not get any information about the accused’s mental health through the police report or the other disclosure that was provided. Rather, this information, if it can be provided, is only provided to defence counsel. However, then the mental health issue is often undiagnosed and unsupported. Tony then refers to his peers on the panel when he says that he is trained in law and not social work and therefore collaboration is key and partnership with the Crown is important.

Graham began by discussing the agency he is employed with and that it primarily works with people with neurological disabilities. Their agency also runs an FASD specific program. He further explained that if the clients at their agency are involved in the Criminal Justice System, and he estimated about 60% of those with FASD are, their agency helps provide community supports. Graham supports the statements made by Tony when he agrees that mental health does run generally undiagnosed and approximated about 80-85%. Taking a more positive stance, he then described how the ICAP unit of Manitoba Prosecutions has had a positive effect on the Criminal Justice System, that was once very adversarial, and how he hopes the incoming FASD docket will contribute to this more balanced system as well. His agency also seeks to assist in finding a best support outcome that addresses public safety issues, while balancing the competing interests of defence counsel and the Crown.

Dr. Casiano followed by emphasizing how building bridges is key. She went on to explain how her current role as a forensic psychiatrist involves providing psych assessments to the court. A significant difference however lies between the youth courts and the adult courts. Dr. Casiano explained how mental health reports can be ordered for a larger variety of reasons for youth and they can be used for consideration during bails or sentencings. In contrast, adults can only be deemed “unfit” or NCRMI, which she emphasizes is a much narrower scope. She then drew everyone’s attention to a unique to Manitoba database that was set up by the Manitoba Centre for Health Policy. This database is ultimately a hub of information that connects all kinds of justice data and allows for the tracking of what happened to different individuals with a mental health diagnoses. For example, did they then become a victim of a crime, or were they accused of a crime themselves? Dr. Casiano then states passionately that the problem she sees “time and time again are individuals with a cycle of recidivism”. Significantly however, this database does not catch those with undiagnosed mental illnesses. Before Nancy jumps in, she again reiterates how imperative it is to build bridges to provide effective services and better identify mental illnesses with the goal of preventing individuals who suffer from mental illness from reoffending.

Nancy begins by explaining the role of a Crown as having an obligation to the public, to the minister and to the court and this involves being fair, accurate and impartial. It also means bringing all information before the court. Her specific role at Manitoba Prosecutions as a community prosecutor requires engaging with medical information, defence and with community supports, making sense of the information that is provided and then providing it to the court. Nancy continues by addressing how the court system in Manitoba has created niche courts to address specific issues that offenders suffer from: mental health court, drug treatment court and now the new FASD court. The mental health courts take those individuals who accept responsibility for what happened and have a severe and persistent mental illness. They are then released with multiple conditions to follow and if they are followed, they either face a reduced sentence or the charges are dropped. The FASD court, Nancy explains, has come about due to a recognition that there are a lot of individuals the court is not being sensitive to. While mental health court and drug treatment court serve only adults, there will be a youth portion for the FASD court.

Tony was then asked how he assesses clients that walk through his door. He returned to what he had reiterated previously: the biggest struggle being the individuals who walk into his office with undiagnosed mental health issues or co-occurring issues. This therefore renders this person not eligible for mental health court. Another challenge that is faced is the ability to receive meaningful instructions from the client in order to move forward. His advice was this: get to know the human and then deal with the charges. However, he notes that resources are slim in the defence field and often lawyers do not have the time to take this extra step. Furthermore, the therapeutic courts are often under funded and difficult to get into. However, Graham jumps in and says that just because a defence lawyer can identify an issue with a client, doesn’t mean the client will necessarily receive services. Graham further says that not a lot of services attach to the therapeutic courts. He ponders: even if you get a diagnoses, but there is no service for you, then what good is the diagnoses? Nancy adds that justice is just “trying to separate the assholes from the poor souls” and other than the therapeutic courts, there are only so many tools to work with, such as diversion programs through the Restorative Justice Centre, pre-charge diversion and community based dispositions that often involve some level of community involvement.

The last and very significant question posed to Graham and Dr. Castiano was: how do you collaborate effectively with lawyers? Graham articulated that conferencing works best because open discussion is crucial. More specifically, he emphasized how sentencing circles with all relevant counterparts are especially helpful and they should occur well in advance before residential placements. This, he points out, has worked fairly well and more frequently in the youth system. He further indicates that he is hopeful that the adult system goes in this direction as well. Tony also jumps in to support this notion that more conferences exist for youth, making it a much more valuable system. However, Graham makes sure to clarify that their role in relation to the courts, defence and the Crown does not involve making recommendations on the sentence. Rather, his agency’s role is to make aware that they are ready to provide support IF released. Dr. Castiano agreed with Graham’s perspective by asserting that communication when requesting an assessment is key. She describes how sometimes the lack of communication can result in an assessment being requested with no explanation as to why, which would assist the forensic psychiatrists when conducting the assessment. She does mention, interestingly so, that the assessment forms for youth allow for more information to be included. Dr. Castiano adds that she will not receive feedback on any of her reports, with the exception of finding a subpoena in her mailbox. She then emphasizes again how written communication needs to improve. To this, Nancy jumps in and tells Dr. Castiano that she needs a contact at the Crown’s office and agrees to give Dr. Castiano her contact information.

While a common theme throughout this panel was that continued, as well as more, focus needs to be given before, after and during the court process for those individuals that struggle with mental health, there were other commonalities that arose. First, the fact that youth court is significantly better at addressing the difficulties and realities faced by clients with mental health issues as opposed to adult court and there is a very large gap in the system for those individuals with mental health issues that go undiagnosed, which encompass a very high percentage. A last common threat that weaved its way through this heated discussion, was that collaboration and enhanced communication is absolutely key in order to move forward and mold and build a system that can appropriately serve the individuals who suffer from mental health issues that come before it.