"So many dreams at first seem impossible. And then they seem improbable. And then when we summon the will, they soon become inevitable."
~ Christopher Reeve

Sunday, January 26, 2014

Disability and the Justice System: A First Hand Experience

Trying to wrap your head around how well the criminal justice system deals with persons with disabilities?

"I will go wherever is available, the first bed."




I can't recommend enough this first-hand account - hear Anna Marie Tremoni's interview with Nichele Benn and her mother on CBC's The Current earlier this week. It's one thing to watch the news stories on TV and hear Brenda tell her daughter's story but it's a very different experience to listen to this in-depth interview.

In fact, it's really too bad that some of the people commenting on this article hadn't heard the interview - perhaps they might have woken up and actually learned something.

It's heartbreaking. It's happening now. And it's not *just* Nicehle's reality.

It's good to know that Canada's Justice Minister, Peter MacKay, is "committed to keeping our streets and communities safe". And yet I can't help but wonder just who out there is committed to ensuring safety and justice, not just from individuals with disabilities, but also FOR them.

Wednesday, January 22, 2014

A Gift ... From Ken Pope

I have been meaning to pass this on for a little while now - a Gift that dropped in my inbox last week.  And it seemed the perfect Gift to REGIFT!

So here you go ... Happy (Belated) New Year!

A New Year's 

Resolution Booster


Jan 15th - Jan 31st  2014


I know how difficult resolutions can be. I know we
 say we will take the time to get our affairs in order...
we resolve to...and time slips away.
I would like to help you with that.

Here is a $200 gift. Please take 
this gift, take some time and schedule  an appointment. 
Let's resolve to finding solutions and creating Peace of Mind
All the Best for the New Year.
Ken Pope




Schedule Appointment Now!

For anyone who's not familiar with Mr. Pope ... let's just say you should be. You might recall that I've spoken about him on numerous occasions over the years. Please note that even though Mr. Pope is located in Ontario, he is licensed to practice across the country.

Kenneth C. Pope, Barrister and
Solicitor, started his practice in 1980,
in Ottawa, Ontario and travels nation
 wide to meet with clients and present 
seminars on Disabilities and Estate
Planning issues.

Ken is a Henson Trust specialist, 
helping provide peace of mind for 
families with a family member with 
disabilities or special needs.                

Saturday, January 18, 2014

Pertinent and Timely Questions in Criminal Law ~ Part II

Continuing our discussion from last week on how well the criminal justice system deals with individuals with special needs, we will now look at how criminal culpability is decided, the sentencing of individuals with special needs and what happens when the complainant is an individual with special needs. 

III.  Deciding Criminal Culpability
Under sec. 16 of the Criminal Code, a person will not be held criminally liable for any offence if they meet the defence of "mental disorder".

16. (1) No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong. 

Presumption
(2) Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection (1), until the contrary is proved on the balance of probabilities.

Burden of proof
(3) The burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal responsibility is on the party that raises the issue.

As when it comes to determining fitness to stand trial, defence lawyers, Crown lawyers and judges all have the power to seek a forensic psychiatric assessment if they think a mental disorder could have affected a person's actions when a crime was committed. The court will consider those assessments  before determining whether the person is criminally responsible for their actions.

Many people seem to think that this defence is only available to those who have a mental illness, but in reality it covers any type of recognized mental disorder, including, for example, autism and intellectual challenges. Also contrary to popular opinion, it is not an easy defence to meet. One must prove not only that they had a mental disorder at the time the offence was committed, but they must also satisfy the court that the disorder made it impossible for them to either

  • appreciate the nature of their actions in question or 
  • know that their actions were wrong.

Before changes made to the Criminal Code in 1992, courts had no discretion but to automatically detain in  custody persons found "not guilty by reason of insanity" (as it was once known) or unfit to stand trial on what was known as a 'lieutenant governor's warrant".

Changes made in 1992 to the Criminal Code (following the introduction of the Canadian Charter of Rights and Freedoms) eliminated the reference to "not guilty by reason of insanity" and replaced it with "not criminally responsible" (NCR). Also eliminated were the provisions concerning automatic "strict custody" and the role of the lieutenant governor.

Now, the court, itself, can either hold what is known as a "disposition hearing" or send the matter to the Criminal Code Review Board to hold a disposition hearing, following which the accused will be given an absolute discharge (meaning they are free to go), a conditional discharge (meaning they will live either in the community or a hospital subject to the conditions or restrictions set by the court of the Review Board) or be detained in custody in a hospital subject to conditions or restrictions.

The basic principle behind Section 16 of the Criminal Code of Canada dates back to a British ruling from 1800 in the case of James Hadfield. Hadfield had fired a gun at King George III and was found not guilty of attempted murder by reason of insanity. The chief justice, Lord Kenyon, felt that prison wasn't the place for Hadfield but also considered that it would be wrong to return him to the community

Kenyon wrote:"The prisoner, for his own sake, and for the sake of society at large, must not be discharged; for this is a case which concerns every man of every station, from the king upon the throne to the beggar at the gate; people of both sexes and of all ages may, in an unfortunate frantic hour, fall a sacrifice to this man, who is not under the guidance of sound reason; and therefore it is absolutely necessary for the safety of society that he should be properly disposed of, all mercy and humanity being shown to this most unfortunate creature.

"But for the sake of the community, undoubtedly, he must somehow or other be taken care of, with all the attention and all the relief that can be afforded him ... for the present, we can only remand him to the confinement he came from."

Hadfield was held in a psychiatric hospital for the rest of his life.


IV.  Sentencing An Individual with Special Needs


In the US, given that the death penalty has been taken off the table for defendants with an intellectual disability, the question now before that country's Supreme Court is how states should decide if someone convicted of a crime actually has an intellectual disability.

We are told that mental health professionals define an intellectual disability as a "substantial limitations in intellectual functions such as reasoning or problem-solving, limitations in adaptive behavior or “street smarts,” and evidence of the condition before age 18". Some states use this definition; however, others are much more arbitrary - such as Florida, where if you have an IQ over 70, you’re eligible for execution regardless of intellectual function or adaptive behavior.

Here in Canada, the death penalty, thankfully, is not on the table. However, when it comes to sentencing persons with disabilities for their crimes, one glaring discrepancy does come to mind. Although Canadian sentencing laws recognize that some categories of people in society are different than others (namely Aboriginals and youth), there is no special recognition given to persons with disabilities.

A. Aboriginal Sentencing
Section 718.2(e) of the Criminal Code addresses Aboriginal sentencing. The section requires a sentencing judge to pay particular attention to the circumstances of Aboriginal offenders and to consider all available sanctions other than imprisonment that are reasonable in the circumstances. An individual’s Aboriginal status is considered in determining a sentence because his or her circumstances are different from non-Aboriginal offenders.

One reason why the Criminal Code treats Aboriginal people uniquely is because Aboriginal people are overrepresented in Canadian prisons. For example, in 1997, Aboriginal people constituted close to 3 percent of the population of Canada, yet amounted to 12 percent of all federal inmates.

.  .  . 

B. Youth Sentencing
The Youth Criminal Justice Act provides the legislative framework for Canada’s youth justice system. It includes a separate sentencing regime because the needs and situations of youth are different from those of adults.
Which might lead one to conclude that in the eyes of Canadian criminal law, no matter the type or severity of a defendant's disability, his or her circumstances are no different than anyone else's.

Wednesday, January 15, 2014

Holding Their Feet to the Fire

There was an excellent interview with Archie Kiaser regarding Nichele Benn's situation on the Global Morning Show today. Unfortunately, no matter what I do, I simply cannot embed it. So I'm afraid that you'll just have to follow the link. Go ahead. I will wait for you.

As Archie so rightly points out, the criminal justice is simply not geared to deal with people with mental illness and intellectual disabilities. In his words, it's all about "judging and punishing" and, in this case, that's not going to do Nichele or society any good.

In my words, shame on the Department of Community Services, Quest Regional Rehabilitation Centre and the Crown prosecutor involved for creating this situation in the first place.

Think about it - the comparison of Nichele's situation to that of Ashley Smith isn't that far off the mark, is it? Is this what Nova Scotia will become known for? Will/Can we allow this to continue?

There is obviously much more to be said (and done) on this subject, but I'm afraid I must leave you for now - Part II on the Criminal Justice System simply isn't going to write itself, is it?

Wednesday, January 8, 2014

Pertinent and Timely Questions in Criminal Law ~ Part I

Given some of the events we have witnessed over the past year in Nova Scotia, this struck me as a good time to ask the question - whether victim complainant or perpetrator defendant, how well does the criminal justice system deal with people with special needs?

Whether the issue is the fall out from the United States Supreme Court taking the death penalty off the table for criminals with mental disabilities on the basis that such executions constitute “cruel and unusual punishments", the appropriateness of laying criminal charges against such individuals in the first place, the process for trying these individuals once they have been charged with a crime or how well the criminal law protects those with mental disabilities from the harmful actions of other individuals, the question essentially remains the same - how well does the criminal justice system deal with individuals with intellectual challenges and other mental and physical disabilities?

To answer that question, we need to look at how Canada's criminal justice system deals with individuals with special needs at every step of the process - from the laying of criminal charges to determining fitness to stand trial and criminal culpability to the sentencing of individuals with mental and physical disabilities. And then there's the issue of exactly how the system deals with such individuals when they have been harmed at the hands of another.*

Now, that's a little too much ground to cover for one blawg post, so for the moment let's look at the issues around the laying of criminal charges and fitness to stand trial.

In Part II, we will look at how criminal culpability is decided, the sentencing of a person with a disability and how well the system does when a person with special needs is the complainant or victim of a crime.*

~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ 

What better example could there be then the current situation involving Nichele Benn?

For anyone who's somehow managed to miss it, 25-year-old Nichele has an organic brain disorder and began exhibiting bouts of aggressive behaviour following an epileptic seizure when she was four. We are told that due to her disability, Nichele is unable to control these outbursts. Despite that situation, things went fairly smoothly for the many years Nichele was living in an alternative family arrangement (think of it like foster care for an adult). Well, they went smoothly until the Department of Community Services changed its protocol and no longer allowed the family to use a therapeutic quiet room when Nichele had one of her aggressive outbursts.

The new protocol required demanded that the police be called any time such a situation occurred. That resulted in Nichele being forced to move from a family situation to a rehabilitation centre. And the results of that?
Since the protocol change, Benn has had 17 police interventions, seven incarcerations and several assault charges and convictions. Nine months ago, Benn scratched the face of a commissionaire during an aggressive outburst; the police were called, Benn was arrested, charged and sentenced to 18 months’ probation, 24 hours of community service and ordered to provide a DNA sample.
That was the situation back in March of 2013. Since then, things have only gotten worse for Nichele. This past April, Nichele was charged with assault after she slapped another resident in retaliation for him allegedly spitting in her face several times. Last month, Nichele bit a staff member while she was being put back in her room. Once there, she threw several objects at another staff member. That incident resulted in charges of assault and assault with a weapon  the "weapon", by the way, was a shoe.

It's obvious that the Department of Community Services (DCS) has a huge role to play in this situation, even if they have now taken the position that they have no such protocol in place, that it is up to each residence to decide how to respond to such incidents. All of which, of course, begs the question - if DCS has no such policy, why did Nichele have to move from a situation that worked so well for her in the first place?

But putting aside the issues with DCS for the moment, should individuals in Nichele's situation, no matter where they live, be funneled through the criminal justice system?


I.  Laying Criminal Charges
It is a Crown prosecutor who ultimately decides whether or not charges will be laid in any particular case. Although this decision is made in consultation with the police, the ultimate decision is the Crown's. That ability to decide whether or not, in any particular case, to lay charges is known as discretion.

The question has often been asked as how well police officers have been trained to deal with individuals they may encounter with special needs. But I, for one, can't help but think that we also need to be asking how well, if at all, Crown prosecutors have been trained in dealing with individuals with special needs.


II. Diversion - Nova Scotia's Mental Health Court
You might recall that back in 2009, Nova Scotia opened its first Mental Health Court. The government see below]and be willing to accept responsibility for their actions. Although, as in the regular court system, sanctions at the end of the day could range from an absolute discharge all the way up to incarceration., the bottom line of the mental health court is to get the person out of the criminal justice system. The Province opted for a referral system that would see offenders treated by a team of trained court staff, including social workers and a probation officer.

The whole point of the Mental Health Court is "ensur[e] the administration of justice, public safety, the development of individualized support plans, case co-ordination and to facilitate access to mental health and community services for the participant".

Well that was the plan, anyway. Anyone see any problem here?
Outstanding and Subsequent Charges 
There is no limit to the number of charges that will be dealt with for any given participant, subject to an overriding public safety concern that may be raised by the Crown Attorney.

Any offences committed by a participant while they are involved in the Program will not automatically lead to expulsion from the Program. All new charges will be reviewed and screened on a case by case basis.. 
"Any offences committed by a participant while they are involved in the Program will not
automatically lead to expulsion from the Program
." 

Really? These are individuals with mental health issues, correct? Mental health issues that have caused them to come into contact with the wrong side of the criminal justice system, no?

And yet, knowing all that, we are still going to boot them back into the regular court system if they don't have the good sense not to re-offend while they are in the program? [That last part was sarcasm, by the by.]

The consequences of not adhering to a support plan are set out below.
Breach and Sanction 
.  .  .
The consequences of a failure to adhere to the Support Plan may result in the participant being ordered by the Judge to return to Nova Scotia Mental Health Court and have
additional conditions and/or sanctions imposed.

Sanction for breaches may include, but are not limited to:
• an increase of frequency in court appearances;
• closer supervision;
• a change in curfew and/or reporting requirements to      Probation;
• a change in the Support Plan;
• termination from the Mental Health Court; and
• in rare circumstances, may result in a period of detention. 
But if a person re-offends while in the program, might we presume the support plan is either not working or not being properly followed? Might we consider the possibility of modifying said plan? Apparently not. Just ask Nichele Benn.



III.  Fitness to Stand Trial
Under section 2 of the Criminal Code, unfitness to stand trial is defined as follows:
“unfit to stand trial” means unable on account of mental disorder to conduct a defence at any stage of the proceedings before a verdict is rendered or to instruct counsel to do so, and, in particular, unable on account of mental disorder to
(a) understand the nature or object of the proceedings,
(b) understand the possible consequences of the proceedings, or
(c) communicate with counsel;
Defence lawyers, Crown lawyers and judges all have the power to seek a forensic psychiatric assessment to ensure that a person is fit to stand trial.

The test for fitness isn't onerous. The accused need only have a basic understanding of their legal problem. The test isn't whether they actually know their legal situation, but whether they are able to understand the concepts involved and to communicate. Capacity is the central concern, which means that the bar for determining fitness is actually set quite low.

Nor is it necessary that an accused be able to act rationally or in their own best interest in order to be considered fit to stand trial. For example, symptoms of paranoia might cause an accused to do something that would negatively affect their trial, such as fire their lawyer. But as long as this paranoia doesn't reduce their capacity to understand the court process or communicate with a different lawyer, they will be considered fit to stand trial. And when it comes to the third part of the test, the "ability to communicate with counsel", only a "limited cognitive capacity" to communicate with counsel and understand the process is required.

If the court determines that an accused is not fit to stand trial, the Crown lawyer can bring in an application for a Treatment Order (also called a "make fit" order). If this order is granted, the accused will be sent to a mental health facility for treatment to help make them mentally fit enough to stand trial.A make fit order can last up to 60 days, but the accused will typically be returned to court after 30 days to see how they are doing.

As an aside, a Treatment Order is the only circumstance under Canadian law which allows treatment of an accused without their consent. It can only be ordered if

• a psychiatrist thinks the accused can be made fit within 60 days if they receive treatment;

• only the least intrusive methods are used; and

• the benefits of making the accused fit to stand trial outweigh any possible negative effects of treatment.

You can find a really nice explanation of the fitness to stand trial process here. 


* We have already discussed other issues surrounding individuals with disabilities and the criminal justice system like the challenged individual's ability to give testimony, the duties on the police when dealing with a youth with a disability who is suspected of committing a crime and the right of a person with a mental disorder to represent themselves in court.