The Intersection Between Mental Health and the Law

Assistant Chief Judge of the Provincial Court of Alberta Larry Anderson recently announced the creation of a specialized mental health court to better consider the needs of the large number of people who struggle with mental health issues and the law. For long time criminal defence practitioners, this cannot come soon enough.

In speaking with CBC, Judge Anderson estimated that of the 150 new files which appear before the Provincial Court every day, 10-25% of the accused have mental health needs. In our opinion, this is an understatement. The frequency with which the criminal justice system and individuals with mental health needs interact is likely far greater. In this post, we explore some of the ways in which the lawyers at Royal and Company have seen those with mental health concerns come in contact with the criminal law.

The most obvious way that this happens is when an individual suffering from mental illness commits a serious crime. These are often times highly publicized because of their graphic or shocking nature and would include people like Vince Li and Allan Schoenborn. These two men were found to be not criminally responsible for their actions because of mental disorders, a designation often shortened to NCRMD. When such a designation is given, the provincial Mental Health Review Board takes over the care of the offender, tasked with managing his or her treatment and protecting the public until the offender is well enough that he or she is no longer a danger. Thankfully, these cases are very rare but they are not the only type of case for which an offender can be found NCRMD.

Another category of cases involves similar situations in which the offender is mentally ill and incapable of appreciating the nature and consequences of his actions but commits less serious crimes (often for which he would be only briefly incarcerated, if at all). These individuals too can be found NCRMD and placed before the provincial Mental Health Review Board. Once that happens, the review board is responsible for their care and will determine their fitness to live independently, any conditions which should bind their behaviour, and will monitor them indefinitely (until a determination has been made that they are no longer a risk to the public). This process can often take years.

Yet another category of cases are those wherein the offender suffers from mental disorder, and this mental disorder impacted upon him committing criminal offences, but he is not NCRMD. Unfortunately, is it this category of cases with whom the justice system has been unable to cope. Often times these individuals come before the Court repeatedly for minor crimes like shoplifting or threats, are cycled through a period of time in custody and are then released back to where they were prior to arrest (often homelessness). The sad reality is that there are very few resources available for the Court to assist the mentally ill other than placing them on probationary orders requiring them to remain under the care of a doctor and follow up with a probation supervisor. The Court, to date, simply hasn’t had the resources to coordinate housing, someone to assist with getting to appointments, financial aid to pay for prescriptions, and the myriad other needs which these offenders have. Hopefully, a specialized mental health court will help that.

There are still many more ways in which the criminal justice system and mental health issues interact which will be commented on further in future writings. For the meantime, the lawyers at Royal and Company look forward to working with the new mental health court and continuing to provide the kind of focused and creative legal help that these types of cases require.

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