Canadian Developments in Alternative Sentencing: Mental Health Courts (Part 2)

Contributed by Souhila Baba

Part two of this two-parts series on the theme of psychology showcases alternative sentencing measures regarding mental health courts in Canada (read part 1 on young adult courts here).

In June 2009, Donald Kushniruk was arrested after taking out a knife in a public park in Alberta. He chose to self-represent at trial, and although a lawyer was appointed to consult with him, neither him nor the lawyer ever applied for bail. He had been diagnosed with bipolar disorder, and possibly suffered from schizophrenia. Due to recurrent delays, Kushniruk spent over two and a half years in jail awaiting trial for an offence for which he would ultimately be sentenced to seven days. A few months after his release, Kushniruk was arrested again after an argument with his parole officer. Two weeks into his incarceration, he committed suicide. Although the problem of over-incarceration of individuals with mental illnesses has led to the implementation of mental health courts across Canada, our conceptions of individual capacity and autonomy suggest that there may be some theoretical and practical barriers to their success . In exploring this sentencing alternative, we will first look at the functioning of these courts across Canada and then zoom-in on Québec as a case study.

The Mental Health Court

Across Canada, mental health courts share similar overarching goals: increasing the well-being of those involved, decreasing recidivism, improving access to services, and enhancing community safety. However, there are variants of the mental health court across provinces: Old City Hall Court in Toronto is a fully independent court, working full-time in parallel to other courts. While in Montreal, the court is integrated into the criminal division of the Municipal court, a program termed PAJ-SM (Programme d’Accompagnement Justice-Santé Mentale).

ForkRoad Mental Health Courts provide an alternative path to traditional criminal trial or guilty plea. || (Source: Flickr // Miwok )

Actors Involved in Mental Health Courts

In general, the mental health court team consists of crown attorneys, judges, defence lawyers, health care providers (i.e., general practitioners and psychiatrists), and justice system actors (i.e., police officers, parole officers, and criminologists). Assistant crown attorneys are most likely to be involved in the creation process of the courts (in Ontario, in 68% of cases), while judges and mental health workers often aide in the process (in Ontario, in 37% of cases).

Diversion Programs

A diversion program is an alternative to traditional criminal trial or guilty plea. A diversion plan, devised by health workers, may implement a variety of conditions based on available resources, including consulting a medical practitioner, complying with medication requirements, refraining from alcohol or any illicit drugs, and attending information or training sessions. Most of the time, these are soft conditions, meaning that contravening them does not necessarily lead to reprimand (although there is the possibility of being removed from the court program).

In Quebec, there are two types of diversion programs offered by PAJ-SM: “Suivi”, which is similar to the Ontario program, or “Liaison” which constitutes a softer approach, where the interventions from the court and health workers are minimal. In both programs, non-compliance with one of the conditions leads to the individual being tried more strictly by law, although the judge may consider mental illness in her decision. Most Quebec mental health courts, in addition, offer support services as part of the diversion program such as crisis and emergency response, safe beds, support for housing, and so forth – again, based on available resources.

Eligibility Criteria

Another difference in the functioning of the mental health courts across Canada is the different eligibility criteria for participating in the program. While almost all courts require the individual to agree to participate in the process (i.e., in Montreal and in most of Ontario), Old City Hall Court in Toronto does not require such willingness. Moreover, in Windsor, the court does not have any eligibility or entry requirements, but rather it relies on the judge to decide on eligibility, based on the general evidence obtained.

Despite growing interest in these alternatives, there are only a few mental health courts in Canada, especially compared to the hundreds in the US. Across the board, major concerns for these courts is the lack of dedicated funding and availability of psychiatrists.

Case Study: Québec

Central to mental health courts is the complicated relationship between supporting individuals with mental health issues and respecting autonomy of the individual. In Québec, this is represented in an ongoing debate between various stakeholders: victims rights groups, families of individuals with mental health concerns, hospitals and health practitioners, human rights advocates, prison officials, the police force, other criminal justice actors, governmental institutions, and society at large. From this debate, three interconnected points are most relevant: first, the stigma of differentiating individuals with mental health problems within the court system, second, inconsistent application of laws related to individuals with mental health issues, and third, links between mental health concerns, homelessness, drug addiction, and the criminal justice system.

The Stigma

Issues of labelling, diagnosis, and stigma are prevalent in any mental health question. For mental health courts, these stem from differentiating a “normal” court from a “specialized” court. Certain stakeholders argue that judicializing mental illness in this way further stigmatizes individuals living with mental illness as they are isolated and segregated from the rest of the process. Furthermore, although the program is voluntary, some argue that there is no true choice between the possibility of going to jail and having a matter be processed through this alternative court. Consequently, individuals who do not think they suffer from any mental illness, or do not wish to be diagnosed, may nevertheless choose to take part in the diversion program. This begs the question: are we looking out for what we believe to be in the individual’s best interest, or their freedom and autonomy to make decisions for themselves?

The Law

In Québec, there is a variety of legislation that includes provisions dealing with mental health issues: the Québec and Canadian charters of human rights and freedoms, the Civil Code of Québec (a.27-31), the Quebec Code of Civil Procedure (a.123; a.391-397), the Act Respecting Health Services and Social Services and, the most controversial: the Act Respecting the Protection of Persons whose Mental State Presents a Danger to Themselves or to Others (la loi P-38). Briefly, P-38 aims to provide a structure for various stakeholders in the confinement of individuals whose mental health issues may be dangerous to themselves or others.

HospitalWard La loi P-38 allows for involuntary confinement of individuals with mental health issues || (Source: Flickr // Vancouver Coastal Health )

The controversy over this law is clear: while the Charters protect the right to freedom, P-38 allows for involuntary confinement, irrespective of criminal behaviour. The legal framework in Québec can lead to some inconsistent results when dealing with individuals with mental health issues. Under P-38, without committing any crime, a person could be confined within a hospital or health care institution. Conversely, within the framework of the mental health court, after committing a crime, a person could be set-free.

The Social Context

The vast majority of individuals living with mental illness do not encounter the criminal justice system in their lifetime.  However, the over-incarceration of individuals with mental illnesses reminds us that some still do. For many stakeholders, this is not due to a question of criminality, but rather to lack of access to the services needed, be it treatment, social support, financial resources, housing, and/or others. Moreover, most mental illnesses can occur comorbidly with other mental health issues (e.g., drug or substance abuse, depression, eating disorders, etc.), which may strain individuals further, and lead to criminality. Indeed, a study by Jaimes and collogues supports that most crimes committed by individuals with a mental illness are minor crimes, usually related to homelessness, low-income status, and other social circumstances.

Under P-38, without committing any crime, a person could be confined within a hospital or health care institution. Conversely, within the framework of the mental health court, after committing a crime, a person could be set free.

We arrive then at a circular issue: lack of resources compounded with mental health issues may lead to criminality, which is dealt with through mental health courts, which in turn lack sufficient resources to support individuals. Mental health courts come as a second thought, a reactive measure, while there should be preventive measures in place.

This two-part series on alternative sentencing is aimed at understanding the various intricacies of criminal justice and health law, and the need for creativity and innovation with regard to issues disproportionally affecting certain groups in society. This is in the hope that our deeper understanding of human development, behaviour, and mental health will help to shape our legal frameworks.

Souhila Baba is a Senior Online Editor with the McGill Journal of Law and Health with a keen interest in mental health, access to health services, and access to justice. She holds a BSc in Psychology from Concordia University. Since she joined the Faculty of Law at McGill University in 2016, she has been able to expand her interests in policy, technology, science, and the law, and the important contributions that women make to these fields and their intersections. Souhila is currently interning with the McGill Research Group on Health and Law at the CIUSSS du Centre-Ouest-de-l’Île-de-Montréal under the supervision of Me. Nathalie Lecoq.

When Science meets Alternative Sentencing: Young Adult Courts (Part 1)

Contributed by Souhila Baba

On the theme of psychology, this two parts blog-series will showcase recent developments in alternative sentencing, first in the United States and second in Canada, portraying how findings in science contribute to innovation in the legal field.

Don’t Treat Young Adults as Teenagers.” “Why Reimagining Prison for Young Adults Matters.” “​How Germany Treats Young Criminals.” “Criminals under 25 should not go to adult prison, MPs say.” These are but a few examples of the headlines urging change with regard to young adults in criminal justice around the world. While the law sets a threshold in differentiating adolescents from adults (18 years of age), science shows that the young adult (18-24 years of age) brain is still developing.

Young Adults in the Criminal Justice System

In Canada, once a person reaches the age of 18, they are no longer treated by the justice system as a juvenile offender, but as an adult. This results in an overrepresentation of young adults in the prison system. Following a section 7 constitutional challenge in 2008, the Supreme Court of Canada found that juvenile defendants (under 18 years of age) not only have a presumption of reduced moral culpability, they also cannot be sentenced as adults unless the Crown proves it is adequate beyond a reasonable doubt to do so. Since young adults are tried and sentenced as adults, they do not benefit from a similar presumption, and cannot be tried as juveniles. The Supreme Court of Canada is silent on this issue, and there are currently no alternative programs or sentences specifically catered to this age group.

Similarly, in the United States, young adults roughly ranging in age from 18-29, are also consistently overrepresented in prisons: making up 21% of inmates while representing only 10% of the population. Neuroscientific evidence has long held that the brain is continuously in development, from conception to death. While there are critical periods of significant brain development during infancy, childhood, and adolescence, the brain continues to undergo changes even into adulthood and beyond. In law, when a person reaches the threshold of 18 years of age they are characterized as an adult, without considering the developmental gradients that scientists are aware of.

The Science of Brain Development

Neuroscientists distinguish between an 18-year-old and a 26-year-old, as the development of certain brain regions is still in progress. Already in 1999, an experiment performed using Magnetic Resonance Imaging (MRI) technology to map differences in brain anatomy between adolescents (ages 12-16) and young adults (ages 23-30) found that the maturation at this stage was localized in the frontal lobe. The frontal lobe is responsible for decision making, assessment of risks and consequences, and impulse control. The study found that the maturation seen in the older age group was due to an increase in information transmission speed between brain cells, leading to increased cognitive function.

frontal The frontal cortex continues to develop in the young adult brain || (Source: Flickr // Laura Dahl)

But what does this mean? Simply put, with regards to impulsivity or assessment of risks, the young adult brain is not at the same cognitive level as the adult brain: an adolescent, or even a young adult, does not have the same appreciation of risks as older adults do. In this transition phase, young adults are prone to irresponsible and at times reckless behaviour. In failing to account for neurological and behavioural differences between young adults and adults, the criminal justice system sets standards that may be inadequate to account for the mens rea (i.e. moral blameworthiness) needed for a criminal conviction.

While these findings provide for a general understanding of this age group on average, they do not suggest that any given individual with specific anatomical characteristics has failed to appreciate the consequences of their actions. Sentencing is an individual-driven process, and as such, scientific findings about a particular age group only inform the possibility of reduced moral blameworthiness, but do not impose it. In any case, a lack of understanding of developmental nuances seems to correlate with an overrepresentation of young adults in penitentiaries.

Young Adult Courts

In several US states, specifically Idaho, Illinois and most recently California, there is an increase in sentencing diversion programs catered to young adults. In basing their programs on the neuroscientific evidence that young adult brains are still developing, young adult courts were created with preventive and rehabilitative goals in mind. No defendants for violent crimes are admissible to the program as the court mainly deals with felonies such as robbery and assault. All young adults (ages 18-24) admitted to the program go through mandatory classes on controlling emotions and impulses, anger management, and receive therapy. Moreover, they meet with the same judge on a weekly basis where their standing in the program is assessed: if their performance is adequate, they may continue in the program and eventually “graduate”, if it is not, they are sent to jail. Graduating from the program leads to reduced charges or full exoneration.

2870256515_283fcfc87d_o.jpg Young adult courts in the Unites States provide creative alternatives to traditional sentencing for young adults || (Source: Flickr // Priya Deonarain)

As these courts are still in their early stages, it is difficult to assess their effectiveness in reducing the overrepresentation of young adults in prison and in preventing recidivism. One thing is certain, however, in establishing alternatives to prison terms: this court is using an approach that is proactive rather than relying on the currently reactive system.

A Balancing Act

It is difficult to balance the autonomy of young adults and the need to protect a particularly vulnerable age group (see MJLH’s Medical Records Episode 1 with Prof. Shauna Van Praagh). In assessing the mental element of an offence (the mens rea), how much sway should the age of the defendant hold? The legal doctrine in the matter is divided, while the scientific evidence will inevitably be nuanced by social and environmental factors. For example, under certain conditions, young adults may exhibit higher-level reasoning than adolescents, performing at a comparable level to adults. A recent study investigating the cognitive control of individuals, found that young adults’ cognitive performance depended on their emotional level. The study specifically found that when shown images of people experiencing negative emotions, young adults reacted as impulsively as adolescents. However, when the participants were shown images of positive or neutral emotions, young adults reacted similarly to adults over 21 years of age.  They found that in the transitional phase of young adulthood, behaviour may be dictated by emotional state, where a negative emotional state resulted in similar behaviour as adolescents. This may be related to the criminal justice system context as criminal acts may correlate with negative emotional states.

In basing their programs on the neuroscientific evidence that young adult brains are still developing, young adult courts were created with preventive and rehabilitative goals in mind.

Moreover, neuroscience has shown us that there are no clear lines to be drawn between adolescents, young adults, and adults – effectively reflecting the legal approach of basing certain policies differently according to maturity level in different circumstances. As highlighted in this article, maturity level of an adolescent is based on the circumstances that are being assessed. This survey showed that although adolescents have the cognitive ability to make an informed decision pertaining to abortion, it does not necessarily follow that they should be treated as adults with regard to criminal consequences. This is due to the different cognitive abilities assessed in each situation. In deciding on abortion, young people are to be assessed based on their ability to reflect on moral and social implications. In this case, young adults are just as competent as adults. On the other hand, when determining moral culpability in a criminal matter, the cognitive function to be assessed is related to the young person’s psychosocial abilities such as impulse control and resistance to peer pressure: the cognitive skills that are still developing in young adults. This context-specific understanding of young adult decision making should be in line with the law’s reluctance to impose a higher standard in determining criminal culpability when dealing with young defendants, while still respecting the autonomy of young people to make and be responsible for their actions.

These findings show that there is still a need for research in this area, particularly as the young adult age group has been historically studied as part of the adult group. In this case, advocating for young adults to be treated as juvenile defendants may be an overstatement of the available scientific evidence. Instead, the establishment of young adult courts provide for a creative alternative in the wake of evidence pointing to the lowered moral culpability of young adults. The ongoing legal experiment in the US may provide future insights for the Canadian context.

Souhila Baba is a Senior Online Editor with the McGill Journal of Law and Health with a keen interest in mental health, access to health services, and access to justice. She holds a BSc in Psychology from Concordia University. Since she joined the Faculty of Law at McGill University in 2016, she has been able to expand her interests in policy, technology, science, and the law, and the important contributions that women make to these fields and their intersections.