Human rights deferred: R v. Conception
By Esther Daniel
I had an eye-opening encounter with a homeless person during my articling period in the late 90′s when I went to a Loblaws outlet during a lunch break. While I was in the check-out line, the man came up behind me, spewed all manner of racial and other insults in my direction, and then, the unthinkable happened: he spat on me several times.
I was scared and shocked and looked at the cashier for help. He did nothing.
Leaving my purchases behind, I rushed back to my office where I wiped the spittle off of my jacket and out of my hair. I had to explain to the office manager why I was disheveled and I began to cry.
I knew that the person was not well. I wondered how someone’s brother, son or perhaps father could end up like that?
Some reading this might have similar stories. Almost everyone who lives in a major city has seen homeless/mentally ill persons – the vulnerable of our society. The people you try to ignore; switch seats on the TTC to get away from; the people you cross the street to avoid; those who elicit your disdain and contempt; the ones in our society who remind you of your own vulnerability or frailty.
The recent Ontario Court of Appeal decision, R v. Conception has exemplified a significant shift on the judicial system’s perception of how the mentally ill should be treated.
This was an appeal from a treatment order made pursuant to s. 672.58 of the Criminal Code by Justice Mary Hogan of the Ontario Court of Justice. This section of the Code gives the authority for a judge to send an accused person, after they appear in court and it is determined they are unfit to stand trial, to a hospital for treatment so that they can become fit and continue with the court process.
Quite often when there are no beds immediately available at the hospital, the accused person must be sent to jail to be housed while waiting for one. To avoid the accused person being sent to the jail to wait, some judges in the Ontario Court of Justice, as in this case, began to issue “forthwith” and “no stopover in jail” orders.
This forced the hospital to take them in immediately, bypassed the need of the consent of the hospitals, and avoided them being sent to jail.
Two psychiatric hospitals sought to overturn a lower order that Brian Conception be sent directly to their facilities instead of waiting six days when a bed would be available. This would be on the lower end of wait times; in most cases the wait time is several weeks.
Court-appointed amicus curiae challenged the constitutionality of s. 672.62 with respect to requiring the consent of the hospital to accept a person into their facility. The court upheld the section, allowed the appeal of the hospitals and set aside the order of the lower court.
The court did not accept that requiring the consent of the hospital violated s. 7 of the Charter. It is unsettling in this context that a vulnerable person should spend more time in jail than is necessary when he or she is still entitled to the presumption of innocence and has not been found guilty of the offence which has brought them before the courts.
The court has also failed to address what they determine to be the standard of reasonableness or what is a “short period of time” in the context of how long a vulnerable person must wait in jail pending bed availability in a hospital. No guidance or parameters with respect to this issue were provided. Should this standard differ from case to case?
Secondly, while there are medical wings at most jails, the jails are not hospitals and do not have the trained professional staff to deal with the mentally ill. As stated by Justice Bill Blair at para. 35 of the ruling:
“Ontario jails are not ideally equipped to deal with the special needs of mentally ill inmates. While some Ontario detention centres do have basic facilities available to assist inmates with mental health concerns, jails are simply not designed to respond effectively to such special needs. Jails provide fewer opportunities for the mentally ill to obtain sometimes-urgently needed psychiatric help, and incarceration generally poses an enhanced risk to the mental health of mentally ill inmates, in comparison to housing in a psychiatric facility suited to meeting those needs.”
Concerns arise as to the safety of vulnerable persons who are targets of other inmates, possible suicides due to the nature of the particular illness and overall deterioration of the person’s mental state.
Are we going to read about more incidents of vulnerable clients being harmed, injured or dying in jails as the staff there, unlike medical staff, are not equipped or skilled to deal with them? It is safe to argue that in light of this decision, the wait times for beds will longer and longer? Will our already overburdened jail system be able to cope with this influx?
This decision has ultimately allowed cries of fiscal constraint to supersede judicial authority. It has now put the decision-making power of whether or not a person goes to jail in the hands of non-judicial authorities, a very strong power.
The power is in the hands of the medical facilities to dictate who should be incarcerated and who should not. One could argue that with this greater decision-making power more fiscal accountability should be required to determine how money is allocated within the organization. Will the government at all levels step in to ensure that increased funding and management are in place where it is needed most to address this issue? Or should financial resources be used to build larger jails?
With this decision there are no winners, only losers. We all lose when weare either unwilling or unable to help the most vulnerable in our society.
The government, including legislators and politicians, must turn their minds to the gap that exists under this section of the Criminal Code and the reality of how it is applied in the courts and interpreted by medical facilities. We must give the authority to the persons who know how best to exercise it.
Justice Blair also points out in the ruling that:
“The judges who preside there, and the staff and medical experts who assist them, are knowledgeable, proficient, and compassionate in administering to the complexities that arise when the law comes face-to-face with mental health realities. They are to be applauded for their dedication and the important work that they do.”
“Justice Mary Hogan, who made the order under appeal, is one of those judges. But she and her colleagues are also understandably frustrated when the mental health care system is unable to provide the facilities - in particular, the beds – that are needed to accommodate orders made where an accused person requires timely treatment in a mental health facility.”
Perhaps, in the spirit of what it means to be Canadian and what our country stands for, in contradiction to the United States, legislative resources are better spent trying to aid the vulnerable persons in custody instead of demonizing them with sensational media stories.
What makes us distinctively Canadian in this context? How can we answer to others at the international level when we cannot find an fair resolution to this issue on our own soil? How do we distinguish ourselves as Canadians from other countries in the way we treat our vulnerable offenders? If we had the death penalty, would we too send a mentally delayed man to the electric chair?
This issue deals with how we deal with the vulnerable in our society, specifically the mentally ill. What does it say about our society when we have mentally ill people incarcerated and we don’t have the resources available to assist them appropriately? It is reflective of our society in many ways.
It is a shame that exists and it is our burden to discharge it.