Say one thing, do the opposite. That sums up the Canadian government's approach to the treatment of the mentally ill in the criminal justice system.
"(I)ndividuals with mental health issues do not belong in prisons but rather in professional health facilities." Those were the promising words of the Minister of Public Safety, Vic Toews, in the House of Commons on Thursday, November 8, 2012. He made this sweeping and dramatic claim in the wake of the release of the Ashley Smith videos, which portrayed her horrendous and inhumane treatment while she was in custody.
Toews's comments might give an observer hope -- hope that soon we will stop putting people with mental health problems in jails.
But in reality, the actions of the federal government lead to a different, bleaker conclusion, because every new criminal law and bill that has been introduced by the current government increases both the number and the length of the stay of mentally ill people in our prisons.
The most recent venture was announced on November 22, 2012. In the new year, the Conservatives intend to introduce a bill that will ensure that persons who suffered from a major mental disorder at the time of the commission of a crime stay in custody longer.
In our courts, a person who is found to have been suffering from a major mental disorder at the time of the commission of the crime may be declared to be to be "not criminally responsible," or NCR, by the courts if this person was unable to "appreciate the nature and quality of his actions" at the time of the offence. (Section 16 of the Criminal Code of Canada)
People who are found NCR receive an indefinite sentence. Once a bed in a mental health institution becomes available, then that person is transferred from a jail to that institution to serve their sentence while receiving treatment. A panel of experts then annually reviews the inmate's progress to determine if her mental illness is under control, and if it is safe to release her. (Criminal Code of Canada, s. 672.81)
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Opposition parties, professionals working within the corrections and justice systems, the Canadian Bar Association and various other interest groups have raised wide-ranging concerns about the omnibus crime bill. Here is an overview of some of their objections. (CP/Alamy)
Changes to the Youth Criminal Justice Act will impose tougher sentences for violent and repeat young offenders, make it easier to keep such offenders in custody prior to trial and expand the definition of what is considered a "violent offence" to include "creating a substantial likelihood of causing bodily harm" rather than just causing, attempting to cause or threatening to cause bodily harm. The new legislation will also require the Crown to consider adult sentences for offenders convicted of "serious violent offences" and require judges to consider lifting the publication ban on names of offenders convicted of "violent offences" even when they have been given youth sentences. Some of the concerns around these provisions raised by some of the professionals who work with young offenders include: (Alamy)
The publication of names of some young offenders will unjustly stigmatize them for life. Quebec has asked that provinces be allowed to opt out of this provision. (Getty)
Stiffer, longer sentences will turn young offenders into hardened criminals and undermine any potential for rehabilitation. (Alamy)
As with other parts of the crime bill, critics says harsher sentencing rules and increased emphasis on incarceration will disproportionately affect aboriginal and black Canadians, who are already over-represented in the criminal justice system. (Alamy)
The changes shift the emphasis of the Act from rehabilitation to "protection of society," which critics say will put the focus on punishing young offenders rather than steering them away from a life of crime. Quebec, in particular, which prides itself on the success of the rehabilitative aspects of its youth justice system, has argued for stronger language prioritizing rehabilitation. (Alamy)
The legislation will eliminate conditional sentences, those served in the community or under house arrest, for a range of crimes, including sexual assault, manslaughter, arson, drug trafficking, kidnapping and fraud or theft over $5,000. It will also eliminate double credit for time already served. Critics say these changes will: (Getty)
Cost the federal and provincial justice and corrections systems millions of additional dollars a year. The parliamentary budget officer, Kevin Page, has estimated that the average cost per offender will rise from approximately $2,600 to $41,000 as a consequence of the elimination of conditional sentences. (Alamy)
- Lead to more trials as those accused of crimes will be less likely to plead guilty if they know there is no chance they will get a conditional sentence and will be more likely to take their chances on a trial. Some have predicted this will lead to greater backlogs in an already backlogged court system. - Result in more parole hearings. Page's analysis predicted that with the increase in the number of incarcerations, there will be more offenders coming up for parole, which will increase costs for federal and provincial parole review boards. A single review by the Parole Board of Canada costs an estimated $4,289, Page estimated. (Alamy)
By far the most criticized aspect of the bill is the introduction of mandatory jail sentences for certain crimes, including drug trafficking, sex crimes, child exploitation and some violent offences. Opponents of the measures have argued that this type of sentencing has been tried in other jurisdictions, most notably in the U.S., and has created more problems than it has solved. Critics say that coupled with other changes in the bill, such as increases in the maximum sentences handed down to some drug offenders and sexual predators and elimination of conditional sentences in some cases, mandatory minimums will burden Canada's prison and court systems in ways that are unfeasible, untenable and have little benefit. In particular, they argue that mandatory minimum sentences will: (Jupiter Images)
Increase the costs of prosecuting and incarcerating offenders and leave fewer funds for rehabilitation programs. (Alamy)
Lead to overcrowding in prisons. (Alamy)
- Remove judges' discretion to tailor sentences to the specifics of a particular case and offender and force them to apply blanket, one-size-fits-all sentences regardless of circumstances - Limit the use of alternate sentencing measures of the type currently applied to aboriginal offenders. (Alamy)
Disproportionately punish small-time drug offenders and have limited effect on the drug producers, organized crime bosses and serious drug traffickers the government says it wants to target. (Alamy)
Have little rehabilitative effect on offenders and rather leave them more, not less, likely to re-offend. Critics point to numerous studies showing harsher incarceration laws do not have a deterrent effect on criminals or lower crime rates. (Alamy)
Violate provisions of the Charter of Rights and Freedoms and open up the government to legal challenges on grounds that the sentencing rules violate certain rights that offenders have under the Charter, such as the right to liberty, the right not to be subjected to cruel and unusual punishment and the right to equal protection and benefit of the law. (Alamy)
The Conservative government proposes to both decrease the frequency of these reviews and to change the standards so that it is harder to release a person, even if they are deemed safe. As a result, people who have been found NCR but do not pose a threat will spend more time in the already scarce spaces of our mental health institutions. That will mean more people with mental health illnesses will spend a longer period of time in jails, awaiting access to an overburdened mental health facility.
This proposal is directly aimed at people with mental health problems. Despite that, it will not be the worst offender for putting the mentally-ill in jail. A string of other laws previously enacted by the current government have already exacerbated the situation.
Take, for example, the supposed "Truth in Sentencing Act" of 2009, which restricted a judge's ability to give more than 1:1 credit for pre-trial custody when counting how much time a person should spend in jail upon conviction. Before this legislation, lack of mental health services and unacceptably restrictive conditions in pre-trial detention (such as lengthy solitary confinement, prolonged and ongoing lock-downs, unavailability of doctors, therapists, or medication, and toilets overflowing in overcrowded cells) could be considered by a judge to reduce the amount of time a person ultimately serves in prisons. The law, however, radically removed this discretion from judges, effectively forcing longer sentences on all people, including the mentally ill who, in the well-informed opinion of the judge, would be better rehabilitated in the community.
Worst yet are the mandatory minimum sentences, which came into force earlier in November of this year. Mandatory minimums force judges to impose a minimum jail term, even where they might believe that a jail term or a lengthy jail term would be detrimental to a person's mental health, his rehabilitation or reintegration.
And yet another law, which came into force on November 20, 2012, eliminates conditional sentences (also known as house arrest) for a wide range of offences, including non-violent ones such as theft over $5000, motor vehicle theft, and breaking and entering.
Conditional sentences have traditionally been used not only to reduce the high cost of imprisonment, but also as a valuable tool for enabling rehabilitation and reintegration of offenders, and as a means of keeping families whole, ensuring that people can continue their employment and to receive the kind of support that will improve their mental health. The elimination of conditional sentences means that more people with mental health problems will stay in jail longer.
At anytime, 25-40 per cent of the incarcerated population suffers from a mental disorder [LINK]. These health problems cannot and will not be remedied in jail. On the contrary, the mental health of these people will often be more acute than before they entered state custody. But our government ignores the victimization of the mentally ill and the cost to society, and persistently makes laws that incarcerate more people with mental health problems for lengthier periods of time.
Ultimately, our government says one thing when the spotlight is on the suffering of people with mental illness, and does quite the opposite when it comes to legislative action.
In other words, people with mental health issues may not belong in jail, but that's where they're going.
There is little to no logical connection between the government's words and their actions.
They do not seem to appreciate the nature and consequences of their actions.
It seems that our legislators could use a good dose of medication and therapy.
But I won't recommend jail.
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