AuthorRichard D. Schneider; Caitlin Pakosh; Lora Patton
There is without doubt no group of individuals whose involvement with the courts presents as
many challenges as those with mental illness. As well, there is no other group whose di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 relative has become a management
problem, only to nd that while everyone hoped the relative would end up in hospital, the relative
ends up in jail. This all-too-frequent situation may arise for a variety of reasons, and typically fol-
lows a similar pattern of events. The o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 they are under arrest. The relative is placed
under arrest and often charged under the Criminal Code with oences such as mischief, assault,
or threatening death or bodily harm. 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 responsibil-
ity for the relative because the individual has been assaultive or destructive in the past and is, in
general, di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 they can be treated, which was the original objective. Because the
relative was apprehended in an acute phase of their illness and because psychiatric care is often
less than optimal in jail, the relative’s rst appearance in court may have caused the Crown, the
court, or counsel to have concerns about the relative’s tness to stand trial.
The issue of tness to stand trial is typically (though not necessarily) resolved prior to the
commencement of a bail hearing. The well-intentioned family is horried that their relative is in
jail rather than hospital and cannot understand why their relative will not receive any treatment
other than on consent, except under very rare circumstances. When the relative returns to court
(assuming they are t), the Crown Attorney may often recognize that the oence was, to a large
extent, the result of mental illness and, if it is not a particularly serious allegation, the Crown may
agree to the relative participating in a Diversion Program and upon successful completion, with-
drawing or staying the charge. Depending on the circumstances, the Crown may either withdraw
the charge contingent upon the relative being made an involuntary patient under the Mental
Health Act, or they may be satised that the public’s interests are being adequately addressed
where there are indicators of stability, such as compliance with medication, ongoing counselling
with positive reports, and the involvement of a supportive family (who are often the victims or
complainants). The topic of Diversion out of the criminal justice system is discussed below.
In other situations, the charges are serious and are not diverted or withdrawn, notwithstand-
ing the obvious presence of mental disorder, which may provide a defence or may be a mitigating
factor on sentence. Furthermore, it is well known that little comfort can result from the issuance

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