Falling through the bars

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Legal experts say a new action plan for criminal justice and mental health by the Mental Health Commission of Canada highlights important cracks in the justice system. However, some say it may not go far enough to fix what’s broken. 

In Canada’s federal correctional system, roughly 73 per cent of men and 79 per cent of women have some kind of mental illness. This can have devastating consequences for these individuals, communities and correctional staff. The Commission’s report, released in June, is meant to initiate improvements to the way mental illness is handled in the criminal justice and forensic mental health systems. 

Developed over five years, the national action plan contains 68 recommendations for interventions to take before, during, and after people’s involvement with these systems. Among them are calls to scale up mental health crisis intervention teams, transfer healthcare delivery from correctional services to health authorities, and improve access to post-release housing and other support services. 

Howard Sapers, the executive director of the Canadian Civil Liberties Association and an advisor on the report, says the correctional system was not designed to address mental health and illness. However, it has become an important factor in how people become involved with and experience the system.  

Because of that disconnect, he says there is room for a different path. The report is meant to offer a comprehensive map, with a throughline that people’s need for healthcare doesn’t end once they’re involved with the justice system.

“We have to orient a system that ensures the best health outcomes for them, for their families, for their communities,” says Sapers, who served as the Correctional Investigator of Canada from 2004 to 2016.

“Sometimes that means diversion away from the correction system, sometimes it means building capacity in the correction system, but it always means putting their health care first as a priority consideration.”

‘Money is being burned’

The action plan identified issues in both the criminal justice and forensic mental health systems, finding a lack of coordination between them. 

It also highlighted a lack of standards of care in the correctional system.  

The report “has correctly identified that Rome is burning,” says Anita Szigeti, founding lawyer at Anita Szigeti Advocates, a Toronto firm focused on mental health and the law. 

“There is incredible urgency around addressing mental disorder in criminal justice. People are constantly at risk of death within our correctional system … and our forensic mental health system is absolutely in the worst state that I've seen it in my 34-year career.”

She would have liked to see greater prioritization of housing in the report, citing Ontario as an example of housing’s critical role. 

There’s a crisis brewing in the province, Szigeti says, where a lack of supportive housing means people are stuck in jails and prisons waiting for forensic inpatient spots to open up. Others languish in forensic psychiatric inpatient facilities rather than living in the community at a much lower cost to the public.  

“Housing is at the centre of it all,” she says. 

“The Ontario government is squandering literally many hundreds of millions of dollars on forensic psychiatric inpatient beds and detention for people who don't need to be there.”

Szigeti agrees with the report’s conclusion that more resources are needed across the justice system, but says that “if someone's going to implement this, they do need to also look at where resources are currently allocated and how and where all that money is being burned.”

She also pointed out the difficulty of trying to make changes to a system with an inequitable distribution of resources. 

“It's a huge problem that we can't get independent psychiatric experts to do any work for us on legal aid tickets because they're getting paid less than half of what the Crown and the government's able to pay them. So those inequities play out in our courts and at our tribunal hearings every day.”

Eroded trust

Amy Matychuk, a partner at Marrow Law in Calgary, whose practice focuses on prison justice and police misconduct, says the report identifies important changes that could improve how people experience the system, including improving continuity of care upon release, and having Correctional Services Canada (CSC) coordinate with provincial and territorial health ministries to provide healthcare to federally incarcerated people.

Having CSC deliver healthcare erodes trust, particularly when it comes to mental health, she says, noting that her clients have no confidence that the information they share with their provider is kept confidential.

She’s skeptical that the agency would make the kinds of proactive changes that are outlined in the report.

“As prison lawyers, we are used to a landscape where correctional facilities and [CSC] only make changes to benefit inmates where they're legally forced to,” Matychuk says. 

“This is also in a context where Canada has one of the most well-resourced correctional systems in the world, and we continue to just throw money at this system that does not make life better for inmates and does not prevent recidivism to the extent that it should.”

Andrea Monteiro, founder of Ethical Corrections Consulting, says the report takes a necessarily ambitious position, emphasizing systemic change that starts with prevention and diversion. But this kind of system change requires that all recommendations be implemented together.

She’s working with the Mental Health Commission on an implementation framework for the plan’s recommendations, and says putting them into action will require collaboration over many years. 

There has been no shortage of recommendations for improving the criminal justice system in the past, Monteiro acknowledges. Still, she says the way the action plan centralizes information applicable across decentralized systems has the potential to do something different. 

“I look forward to what different jurisdictions across Canada, as well as nationally, do with those recommendations now, because I think we have a duty and an obligation to act.”