AuthorRichard D. Schneider
Unfort unately, my introduct ory remarks mad e at the beginning of t his text in 1996 are as
apt now as they were then. The plight of the mentally disordered individual in Canada and
much of North America has not improved signif‌i cantly.
There is without doubt no group of individuals whose involvement with the courts
presents as many diff‌i culties as the mentally ill. As well, there is no other group whose
diff‌i culties so routinely involve both civil and criminal litigation. For example, it is very
common for concerned family members to call the police to their home because a rela-
tive has become a management problem, only to f‌i nd that while ever yone hoped the
relative would end up in hospital, the relative ends up in jail. This all too frequent situa-
tion may arise for a variety of reasons. The off‌i cers dispatched to assist the family are
sometimes not particularly sure of their jurisdiction under the Mental Health Act and,
while eager to assist, feel more comfortable taking the relative into custody if he or she
is under arrest. The relative is placed under arrest, and often charged under the Criminal
Code with offences such as mischief, assault, or threatening. Typically, in situations like
this, the relative is acutely and obviously ill, and is therefore held for a bail hearing rather
than released from the police station. Often, depending on the chronicity of the problem,
the family is reluctant to assume responsibility for the relative because he or she has
been assaultive or destructive in the past and is, in general, diff‌i cult to manage especially
if not on medication. An order for judicial interim release is not made. At the same time,
the family now pleads with counsel to have their relative moved from jail to a hospital
where he or she can be treated, which was the original objective. Because the relative
was apprehended in an acute phase of his or her illness and because psychiatric care is
often less than optimal in jail, the relative’s f‌i rst appearance in court may have caused the
Crown, the court or counsel to have concerns about the relative’s f‌i tness to stand trial.
The issue of f‌i tness to stand trial must typically be resolved prior to the commence-
ment of a bail hearing. The well-intentioned family is horrif‌i ed that their relative is in jail
rather than hospital, and cannot understand why their relative will not receive any treat-
ment other than on consent, except under very rare circumstances. When the relative
returns to court (assuming he or she is not now unf‌i t), the Crown Attorney may often rec-
ognize that the offence was, to a large extent, the result of mental illness and, if it is not
a particularly serious allegation, withdraw the charge. Depending on the circumstances,
Crown counsel may either withdraw the charge contingent upon the relative being made
an involuntary patient under the Mental Health Act, or they may be satisf‌i ed that the
public’s interests are being adequately addressed where a supportive family (who are
often the victims or complainants) undertakes to supervise the now stable relative. As

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