Criminal Law

More support needed for offenders with mental health issues

By Staff

Barring violent offenders from programs designed to help individuals with mental health issues is doing more harm than good, Toronto criminal lawyer John Fennel tells

Fennel, an associate with Hicks Adams LLP, says more support should be offered to those whose criminal charges relate to their mental health or addiction problems, noting that members of both groups are over-represented in the criminal justice system.

“It’s a big problem that we really haven’t managed to grapple with in its entirety yet,” he says.

Still, there are “some efforts that are helping people in certain limited areas,” Fennel adds, pointing to the active mental health courts operating at busy provincial court locations in Brampton and Old City Hall in Toronto.

In addition, the Toronto Drug Treatment Court has been helping people with addictions avoid jail for offences related to their dependencies since 1998. Under the voluntary program, adults facing non-violent charges, such as minor property offences, drug possession, or lesser-quantity drug trafficking, receive non-custodial sentences in return for participation in a community-based approach focused on supervised harm-reduction treatment, abstinence support, housing, and counselling.

“These programs are working to get people out of the criminal justice punishment regime and into more of a rehabilitation and monitoring regime, where they are incentivized to get the treatment that will help prevent them from committing more crime,” Fennel says. “But the really big hole is where you have people who would otherwise be great candidates for these programs, except for the fact that they have committed crimes of violence."

Although Fennel operates a practice with a growing niche related to not-criminally-responsible (NCR) arguments — using that defence for some defendants who are facing charges or resisting Crown allegations that the accused is NCR, he says those cases are at the extreme end of the spectrum, and not suitable for clients with less serious conditions.

“You get these assaults that appear to come out of nowhere, or other crimes that are caused by mental illness. They don’t belong in the NCR regime, but the violence serves to keep them out of these mental health programs,” he explains.

Instead, Fennel says vulnerable individuals convicted of violent crimes face months in provincial jails.

“That’s only going to exacerbate their problems and make them more likely to commit further offences when they get out, and the whole thing becomes a self-fulfilling prophecy,” he says. “If our goal is to prevent violence, then we shouldn’t be barring people with mental illnesses from these programs simply because of a violent act.

“By sending them to jail, we’re only creating more problems because they don’t respond to traditional forms of punishment. Let’s take a step back and realize that just being harsh to satisfy a reflexive view of what we think society wants is really short-sighted,” Fennel adds.

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