01/15/2014 10:33 EST | Updated 03/17/2014 05:59 EDT

Woman with disability charged with assault should not be before courts: mother

HALIFAX - The mother of a Nova Scotia woman with an intellectual disability who is accused of biting and striking a staff member at a care facility says her daughter shouldn't be before the courts.

Brenda Hardiman accompanied her daughter Nichele Benn, 26, as the young woman made her first court appearance Wednesday on charges of assault and assault with a weapon.

Police allege Benn bit and hit an employee with a foam letter and a shoe at the Quest Regional Rehabilitation Centre in Halifax on Dec. 12.

During the hearing, defence lawyer Jane O'Neill said she will argue Benn needs a medical assessment on whether she is criminally responsible for her actions when the case returns to provincial court next Wednesday.

Outside court, Hardiman said Benn's case shouldn't be going through the criminal justice system because her outbursts are due to an organic brain disorder that causes periodic episodes of aggressive behaviour.

"Health issues like Nichele has should not be criminalized," Hardiman said.

But RCMP Cpl. Scott MacRae said police also have to consider the alleged victim when laying charges.

"It's a difficult situation for police because we have a duty to investigate and lay criminal charges when the grounds exists," he said.

"What is sometimes forgotten in stories like this is there are also victims of crime. They have an expectation on us as a police force to intervene and lay charges if a person has been assaulted."

Hardiman said her daughter, who also has epilepsy and cerebral palsy, has been unhappy living at Quest, which houses people with widely varying intellectual, physical and mental challenges.

She said her greatest fear is that her daughter will go to jail rather than receive treatment and appropriate housing.

"We all know what that does to people with special needs."

Hardiman draws parallels with the Ashley Smith case, a mentally ill teenager who died in a federal prison when she strangled herself in her cell. She predicts Benn will follow a similar pattern of deepening mental health crises and aggressive outbursts if she is jailed.

Hardiman said Benn previously lived with a couple in a home in rural Nova Scotia, but when that arrangement ended several years ago there wasn't an appropriate, small group home available for her.

"Nobody should be living in an institutional environment," she said. "The behaviours feed off of each other. It's like warehousing people."

Premier Stephen McNeil has said he is willing to meet with Hardiman to discuss a wider response to Benn's situation, something O'Neill said she and her client would welcome.

About a dozen protesters from a group called People First, which advocates for the rights of people with intellectual disabilities, carried placards outside the courthouse.

"It's an important case to me," said David Kent, the vice-president of People First in Nova Scotia.

"I have an intellectual disability myself. When I heard of this case it brought tears to my eyes."