Criminal Law

Judge emphasizes defendants are people, not 'faceless criminals'

By Staff

A judge’s observations that courtrooms are a “world of poverty, homelessness and mental illness” are a striking reminder of the importance of treating defendants as people rather than faceless criminals, says Oshawa criminal lawyer Lawrence Forstner.

“We actually need to know who these people are coming into the system,” says Forstner, principal of Forstner Law. “We need to be honest as a society and acknowledge we all experience mental health issues.”

In his successful written application to join the Ontario Court of Appeal, posted online, Justice David Paciocco notes that in his five years as a provincial court judge, he has seen a steady stream of defendants who are “often sick, always in need.”

It would be obtuse, the judge adds, to fail to recognize that the law has to be wielded differently for different people.

“They are entitled to have their needs recognized,” Paciocco says.

Forstner tells that Paciocco’s views resonate with him.

“The law-and-order, black-and-white approach doesn’t work. We need to be more open and honest and contextual,” Forstner says.

Paciocco seems to be advocating for therapeutic jurisprudence, although he does not use that term, Forstner says.

Therapeutic jurisprudence recognizes that anyone with power in the criminal justice system — a judge, lawyer or court clerk — can have a therapeutic or anti-therapeutic effect, depending on what they do and how they do it, he says.

“The law itself, how it’s practised and communicated, is either healing or anti-healing,” says Forstner.

He recalls sitting in the body of a courtroom when a judge refused to allow the family of a defendant to temporarily move to the front of the bar so they could view a television screen showing evidence.

"You can see the shoulders of those people slump at that moment because they had just been discounted, disrespected, made invisible,” he says.

“So much of the system is set up with an eye to dealing with the inefficiencies that sometimes it overlooks the importance of the message — or that the 'how' in what we do is more important than what we do."

For instance, someone sentenced to 90 days in jail may feel better than someone sentenced to 30 days if the judge treats him with greater respect, he says. The offender receiving the lesser 30-day sentence may stew angrily in his cell if the judge sends him away with disparaging remarks, Forstner says.

Offenders are often so brutalized by their experiences that they are resistant to change, but we should see that attitude more as a symptom than an immutable characteristic, he adds.

Instead of pushing back at offenders, as we often do, we should relax and “share the circle,” Forstner says, meaning aligning interests and focusing on helping individuals solve their issues.

Justice would be better served if we recognized that we all experience mental health issues at some point in our lives, such as when we are under severe stress, he adds.

Paciocco’s written application is also cited in a Toronto Star opinion piece co-authored by former Ontario attorney-general Michael Bryant, now a defence lawyer.

“Canada has unwittingly criminalized mental illness,” write Bryant and co-author Graham Brown.

Bryant admitted in another Star article that when he was attorney general he suffered “the malady of ignorance” about the fact that, innocent or not, the homeless, addicted and mentally ill are more likely than others to end up in jail.

In his book, 28 Seconds, and in a 2012 interview with the Star, Bryant describes his own battle with alcoholism followed by a sudden fall “to the pillory” when he was charged in the vehicular death of a Toronto cyclist. The charges were later dropped.

Similarly, Forstner says, his own mental health struggles after being abused as a teenager have informed his work in the criminal justice system. Offenders are “tremendously victimized by life in ways that I can identify with,” he adds.

People running the justice system, however, often ignore the similarities between themselves and defendants; they continue to stigmatize and discriminate against people with mental challenges, he says. “I’m always amazed at how the criminal justice system can’t see what’s right in front of it.”

The system needs to adopt what’s working instead of being “pedantic and unrelenting,” he adds.

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