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.*

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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.