Find LAMDA’s Letter Here: https://drive.google.com/file/d/1oGv-sBeflny9eIJXJzRBBrygqXLGUxBI/view?usp=sharing

I encourage everyone to read this letter from me as @LAMDACANADA‘s President in response to CAMH’s policy paper on mental health and criminal justice. Defence lawyers do so much with so little to protect and advance our clients’ rights. We need & deserve recognition & support too

Please review & let us have your thoughts. We set out the role of defence counsel & the importance of legal aid @LAO_MHstrategy

Law and Mental Disorder Association

400 University Avenue

Suite 2001

Toronto, ON M5G 1S5

Tel: 416-504-6544

Email: lamda.exec@gmail.com

December 7, 2020

AN OPEN LETTER TO CAMH IN RESPONSE TO ITS RECENT MENTAL HEALTH AND CRIMINAL JUSTICE POLICY FRAMEWORK PAPER UPDATE OF NOVEMBER 2020

Roslyn Shields

Senior Policy Analyst, Centre for Addiction and Mental Health

Roslyn.Shields@camh.ca

416-535-8501 ext. 32129

Dear Ms. Shields:

I write today as President of the Law and Mental Disorder Association (LAMDA). LAMDA is an association of approximately 150 lawyers in private practice (and some law students) whose interests and law practices focus on mental health law to a significant degree. All LAMDA members work to protect and advance the legal and civil rights of clients with mental health issues in both criminal and civil litigation proceedings.

This letter responds to CAMH’s recent update to its Mental Health and Criminal Justice Policy Framework. In the paper, CAMH makes important contributions to the timely topic of examining the relationship between mental health and criminal justice. LAMDA supports CAMH’s position on many of the issues as set out in the paper.

We agree that there is no need for police response to mental health crises. Our association supports a community based deescalation-trained peer response, rather than mental health professionals as members of the alternative crisis response teams. CAMH mentions the Gerstein Centre, for example, which has a model similar to what we would ideally prefer, with significant involvement of skilled peers on their staff and board.  Otherwise, we agree on many of the points CAMH makes in this area, including its focus on systemic racism as a major acute concern.

We also strongly support minimizing the interactions between individuals with mental health issues and the criminal justice system.

We agree that the overarching goal must be to prevent or minimize our clients coming into unnecessary, traumatic and stigmatizing interaction with the criminal justice system.

However, we are concerned that CAMH has overlooked two critically important pillars of keeping vulnerable clients with mental health issues out of criminal justice. The CAMH paper’s Guiding Principles unfortunately do not acknowledge the crucial role of: (1) defence counsel for clients with mental health issues and (2) adequate legal aid funding.

We now take this opportunity to highlight our lawyers’ integral function in minimizing the harms of criminalizing people with mental health issues. We also emphasize the critical role of adequate legal aid funding.

The Importance of Defence Counsel in Any Criminal Proceeding

Perhaps the best way to understand the need for defence counsel is to consider the drawbacks of self-representation. As The Right Honourable Beverley McLachlin, former Chief Justice of Canada’s Supreme Court, put it, “the [unrepresented] accused may not understand how to exercise rights, present a defence or make arguments, potentially resulting in an unfair trial and possible wrongful conviction.”

A Canadian Department of Justice Study noted many of the disadvantages that accompany self-representation in criminal proceedings. These include:

• Unrepresented accused are prone to plead guilty, even when they have a convincing legal defence. Guilty pleas “just to get it over with” are all-too-common.
• Unrepresented accused are usually unaware of the myriad legal options available to them. For example, they rarely ask to be considered for diversion because they don’t know such an opportunity exists.
• Unrepresented accused make strategic and procedural mistakes that they could have avoided with competent counsel. Common errors or omissions include: not calling key witnesses, poor cross-examination, not seeing the relevance of evidence, and not knowing what arguments to make or what evidence to present at sentencing. 
• Crown attorneys are reluctant to plea bargain with unrepresented accused.
• Unrepresented accused tend not to think about the socio-economic consequences (e.g., being ineligible for many jobs, exclusion from certain university streams, driving prohibitions) when pleading guilty.

Why Persons with Serious Mental Health Issues Require Defence Counsel

The challenges all criminal defendants face are magnified for individuals with serious mental health issues. Defence lawyers are frequently our clients’ last resort when they seek to enforce their rights, as they are otherwise too often disbelieved or ignored. Defence lawyers are the only participants in the criminal justice and mental health systems who are tasked with advancing the views of their clients, as those clients face two systems, which have the potential to deprive them of their liberty. Stereotypes of persons with serious mental health issues include that they are not intelligent, that they are dangerous and that they do not know what is in their best interest or are unable to make informed decisions about their goals, even including instructing defence counsel. Persons with mental health issues could suffer the effects of other people in the criminal justice system believing such stereotypes even though they are stereotypes, not the rule. Many justice system participants also believe that being involuntarily detained and medicated is helpful or even necessary for everyone experiencing a mental health crisis, something many of our clients dispute. Such discriminatory attitudes can work to deprive our clients of access to counsel and ultimately access to justice. Everyone is entitled to a defence, and clients with mental health issues ought to be entitled to their choice of defence counsel. It is vitally important to provide a counterbalance to the power that courts and hospitals have to take away the liberty of any individual, including an individual coping with mental health issues. 

What Lawyers Do To Assist Persons with Serious Mental Health Issues in Criminal Courts

While clients who have serious mental health issues may not trust mental health professionals due to prior interactions with the mental health system, they often do come to trust their lawyers who advocate consistently on their behalf and based on their instructions. Once a defence lawyer has an ongoing and trusted relationship with a client who has serious mental health issues, that lawyer is uniquely positioned to negotiate pre-charge diversion for the client, to link the person to resources and avoid new charges.

Once charged, there is often an opportunity for mental health diversion. For some clients, particularly those with relatively minor charges, staff duty counsel are available to help navigate the diversion system. However, for those clients facing charges, which at first blush do not seem to qualify for diversion, or for clients whose particular challenges make participation in diversion difficult, the role of the defence counsel is vital. Those clients need lawyers with the ability to take difficult matters to trial, if need be.  Defence lawyers can advocate the client’s position on all issues as they arise in or out of specialized mental health courts. They can assist unfit accused with respect to their assessments and ascertain their position or views in relation to treatment orders. They can facilitate getting access to an assessment bed and/or to treatment, where necessary. They can and do advise clients in relation to the availability or advisability of pursuing or consent to an NCR defence pursuant to section 16 of the Criminal Code. 

As CAMH notes in its paper, NCR can have serious consequences, including indefinite detention. No accused person should decide whether or not to pursue, consent to or oppose an NCR assessment and/or Verdict, without the confidential advice of their own counsel. Once found unfit or NCR, and in the Review Board’s system, counsel for accused persons with serious mental health issues provides advice, takes instructions and advocates the client’s position based on their instructions (as NCR accused) and provides assistance otherwise to unfit accused and the tribunal hearing their reviews. The role of counsel to persons with mental health issues who find themselves in contact with the criminal justice system cannot be overstated and ought never to be underestimated.  Defence lawyers constitute a critical and indispensable part of the system of checks and balances protecting legal and civil rights of such vulnerable accused persons.

While essential, access to defence counsel is lacking. Canada-wide, the legal aid programs our clients depend on are remarkably underfunded.

Chronically Underfunded Legal Aid Programs

As a result of underfunding, eligibility criteria for legal aid are far too low. In Ontario, a single person without dependents must earn less than $17,731 to qualify for legal aid. Individuals whose income exceeds the threshold are often forced to self-represent or forego a robust defence and plead guilty.

Inadequate funding has also placed tremendous pressure on legal aid providers to ration services. Each legal aid file comes with a maximum number of hours for which a lawyer may receive compensation. In many cases, that maximum is nowhere close to enough. When legal aid providers exceed the maximum, they often work the remaining hours for free. But this approach is unsustainable for most lawyers, who regularly cannot prepare as well as they could have with a realistic time allotment.

The Disparate Impact of Low Legal Aid Tariffs on Clients with Mental Health Issues

Clients with serious mental health issues generally take longer to represent professionally, as a result of a host of factors. There may be communications barriers as a result of an acute crisis in the person’s mental health. There may be communications barriers as a result of homelessness, no access to phone or internet, difficulty arranging appointments. Lawyers must ensure they are able to explain everything in an accessible fashion and the client understands options, and advice we are providing to them. We must then take instructions from our clients. They may change their minds. They frequently do. We must and do continue the dialogue. Any ordinary legal aid tariff is guaranteed to be inadequate for fulsome, fair and proper representation of this client group. We therefore donate most of our time on most files. This does place an unreasonable and unsustainable burden on our colleagues within our bar and our profession. As a result of these combined factors, we find that mental health lawyers burn out and there is a high rate of turnover. Which of course means clients lose their access to counsel of choice, with whom they may have taken years to build an alliance and a trusted rapport.

We don’t suggest this is an exhaustive list of concerns or issues, or that we have been able to identify all the barriers to access to justice our clients face or the myriad ways in which we do assist them to navigate the system and minimize the harms of being criminalized.

But we have identified some of the major problems, none of which appears to have any mention in CAMH’s Policy paper updates.

The systemic barriers we have identified, in our view, merit and indeed require attention in any discussion on how to reduce the criminalization of people with mental health issues.

Going forward, in updating this policy paper or in any of its other work, we hope that, CAMH will consider the nexus between our shared goals and access to a proper legal defence.

We encourage CAMH to acknowledge and support, in its Guiding Principles and recommendations arising from those, the need for unfettered access to defence counsel of choice and for increased and appropriate levels of funding for legal aid in this area of the law.

All the best,

Anita Szigeti

President

Law And Mental Disorder Association (LAMDA)