Thank you very much. I want to begin by giving you a bit of my background, since I appear before you today in my personal capacity.
I have been an advocate for mental health rights for over 10 years. I have served as legal counsel to the Psychiatric Patient Advocate Office, which supports psychiatric in-patients with rights, advice, and patient advocacy over 35,000 times every year. I also led developments of Legal Aid Ontario's province-wide mental health strategy, which just launched in March 2016.
Over the years, I have also participated in many advisory boards and committees, including the Toronto Police Service's mental health advisory committee. I was co-chair of the Police Records Check Coalition, which worked with the Ontario Association of Chiefs of Police and others to develop the first provincial policy in that area. For the last several years, as you mentioned, I have also taught as a sessional professor at the University of Windsor in the faculty of law.
Thank you very much for having me here today and giving me this opportunity, and for undertaking the important business of considering the huge role of legal aid plans across Canada.
Legal aid, simply stated, helps people live their rights. It's about getting the advocacy that makes citizenship a meaningful thing, and this is, in a very real way, what we are talking about when we say “access to justice”.
Today, I want to focus on a very specific part of that question, and that is the criminalization of mental illness. There has obviously been a lot of work done on this topic, and over the last 15 years much of this work has been put into practice. We have been on a very clear trajectory away from criminalizing those with mental illness. We recognize that a punitive law-and-order approach doesn't work. It doesn't work in the public interest, nor does it work to protect public safety. Concepts like denunciation, deterrence, and imprisonment are in fact counterproductive when we're talking about mental illness. They exacerbate underlying problems and trigger causes that bring persons with mental illness into conflict with the law. But what of this progress has been formalized and systematized as part of our courts today? That is much more narrow. This is also the opportunity I'm encouraging this committee to consider today.
If you pick up your copy of the Canadian Criminal Code, you will find the mental disorder provisions in part XX.1. That whole section, for the most part, speaks to just 2% to 3% of the population, who have serious and persistent mental illness. It is a very well-defined system, but it exists only for those who are seriously and persistently mentally ill, those who are either unfit to stand trial or not criminally responsible due to mental illness. This is a very high threshold to meet.
While the Criminal Code mandates a comprehensive set of services and systems, it won't be accessed by most accused. Indeed, those found not criminally responsible represent just 1.8 out of every 1,000 criminal cases. What about everyone else who appears as accused in a criminal court? What about those with less serious mental illness: those who some of my colleagues describe as “quietly unwell” or those who are acutely unwell and in short-term crisis? What about those with a mental illness and an intellectual disability or cognitive impairment?
I am pleased to say that, over this time period, they have enjoyed some progress as well. It was just in 1999 that the first Mental Health Court began operating at Old City Hall in Toronto. That court was set up because there was recognition that traditional prosecution wasn't working. Over the last 15 years, such alternative approaches have bloomed across Ontario. That one court in Toronto became a source of hope and inspiration to judges, crowns, defence counsel, and the accused alike. The idea and the approach grew.
Ontario's Ministry of the Attorney General recently undertook a checkup survey. In 2015, they found that 52 of 52 criminal courts in Ontario now provide some kind of targeted mental health programming. That includes everything from formal mental health courts to drug treatment courts, post-charge diversion, bail programs specializing in mental health, and so on. These kinds of efforts have been developed not for the 2% to 3% of accused with serious and persistent mental illness but for the majority of the accused: the one in two, or more, who has some kind of mental health and addiction issue when they appear in a criminal court. It is a huge proportion of the accused, likely the majority.
There are huge potential benefits for federal leadership to help formalize these kinds of programs to address these needs of the majority of the accused. You can see what these benefits are by simply looking at what happens in these courts. Much depends on the work of court support workers and on duty counsel and defence counsel. They long ago recognized that mental health is only part of the picture, that treatment alone is not a silver bullet, and that illness is only a part of what puts the accused in a precarious spot and only part of their story.
Instead, they're assessing the needs of their clients based on these other factors, which will help their clients stabilize in the community. They're advocating for housing. They're advocating for income and social entitlements. They're advocating for access to health services. They're advocating for access to education and for the decriminalization of police records so that people can get education, work, volunteer, and even access housing. Most of all, they confront assumptions, prejudice, and fear. All of these are barriers, and all of these are social determinants of health that hold the accused back and contribute to recidivism and criminalization. In other words, the investment in legal aid, which goes to assisting these accused, is paid back multiple times over. There is a tremendous social return on investment in legal aid. The 2014 Department of Justice report on maximizing the federal investment in legal aid confirmed that such investments in legal aid can save money in areas of government spending such as health and social assistance.
Diversion specialty courts are therefore an approach with considerable promise, but there are also troublesome aspects. First and foremost is that these special mental health programs tend to be ad hoc. Over the years, they have grown up here and there, often in isolation. They typically depend on cobbling together local resources.
Some of the specialty courts meet once a day and some meet once a month. They tend to be rather idiosyncratically defined. Some have clear eligibility and diversion criteria and some more or less do it on the fly. There is, in other words, lots of discretion, lots of variation, and very little consistency. Often, frankly, there is much confusion about procedure and options and about the intersection of criminal law and health care. There is often uncertainty about what practices and frameworks are best. Nonetheless, we see the considerable promise.
From my perspective, everyone is now pulling in this direction and wants to see these programs succeed through further investment and normalization. Supporters of these kinds of initiatives include the following.
In 2013 the fifth national symposium on reinventing criminal justice recommended that consideration be given to whether Criminal Code amendments are required to allow for earlier assessments of the mental health needs of the accused, thus removing legislative barriers to these kinds of diversion and mental health programs growing.
In 2014 the Department of Justice advisory panel on criminal legal aid made the recommendation to address the lack of system coordination and to increase efficiencies, in part by targeting high users of the system and addressing the particular needs of particular groups, namely, those with mental health issues.
In 2014 the Mental Health Commission of Canada's national strategy made it priority 2.4 that we should increase the availability of programs to divert people living with mental health problems, including mental health courts.
In 2016 Ontario's Ministry of the Attorney General convened a round table on criminal mental health, and in part it endorsed a recommendation to the minister to investigate promising models of diversion and to consider standardizing the approaches being taken.
In 2016, I'm proud to say, Legal Aid Ontario released its province-wide mental health strategy. This included a comprehensive mental health training program and an ongoing learning tool developed by and for criminal lawyers. LAO's strategy also expanded financial and legal eligibility for mental health clients and established a multi-year commitment to innovate.
I'm here today to encourage the federal government to join this chorus and to do its part. It would go a long way to achieving that goal in the mandate letter of the to address gaps in services to those with mental illness throughout the criminal justice system.
I would suggest that it would also greatly help maximize the federal investment in legal aid as well as help direct future and expanded investments with the greatest potential impact. It promotes earlier resolution. It streamlines processes. It reduces breaches and administration of justice offences, and most importantly, it supports the accused in defining their own pathway to recovery.
How do we get there? I would like to make six recommendations for you to consider today.
First, consider reviewing the Criminal Code definition of “mental disorder” to expand that definition, or to create a separate category of mental disorder short of “not criminally responsible” or “unfit to stand trial”. Frankly, this would better reflect the reality of what is happening on the ground in courthouses today. It would also better include those with dual and concurrent diagnoses, intellectual disabilities, cognitive impairments, acquired brain injuries, fetal alcohol syndrome, and so forth.
Second, you may consider reviewing the Criminal Code to formalize options like alternative measures or diversion procedures for those with a mental disorder short of NCR or unfit. Again, this would reflect what is happening on the ground, and it would provide a more comprehensive and evidence-based approach to conflicting efforts to reform bail, drug treatment courts, mental health diversion, and so-called community or accommodation courts.
Third, it would be very helpful to lead and promote the standardization of best practices. For example, I would suggest that federal investment in legal aid funds could be earmarked or expanded for courts that adopt models that are demonstrated to be effective. It would also be a means to encourage them to do so.
Fourth, invest in research. Frankly, there's a dearth of research in this area. The federal government could consider a range of possibilities, including making this a focus of the renewed mandate of the Mental Health Commission of Canada, or perhaps consider establishing a specialized Canada research chair, or even investing in groups that already have national scope, like the Association of Legal Aid Plans of Canada. This would ensure that approaches were evidence-based, and it could also ensure that a focus would be given to the special mental health needs of women and of aboriginal accused.
Fifth, as part of the research agenda, consider specific models of alternative or diversion courts. Today there are many approaches. There's a huge variety in what's going on in courthouses across the province of Ontario and across the country. Many of these have promising potential. At the same time though, some courts are looking to get beyond a purely therapeutic model to models like the risk-need-responsivity framework, which helps identify social factors that exacerbate mental illness.
Sixth, any such work in any of these areas I've just highlighted must be done in partnership with the mental health community and with those who have lived experience of the system. As this community often says, “Nothing about us without us”. They're experts in their disability and their experience, and they should be front and centre as part of any reform movement.
Thank you very much to the committee for its invitation.
The BC Civil Liberties Association is the country's oldest and largest civil liberties and human rights legal organization. We work at the federal level and provincially to sustain, defend, extend, and uphold human rights and freedoms in Canada. We have a very long history on the topic of legal aid. In fact, the very first position paper that our board adopted in April 1963 was on the topic of criminal legal aid. In our report, among the recommendations, we argued something that was novel at the time, which was that legal aid is the responsibility of government. We called for a comprehensive legal aid plan, guaranteed in statute and not dependent on the charity of lawyers as legal aid had been up to that time in Canada. We've continued to advocate on the issue over the half-century since.
I'd like to return to a question that Ms. Khalid asked the Department of Justice witnesses here in December: why do we provide legal aid to start with?
We take the position at the BCCLA that there are certain fundamental precepts to making democracy effective for all persons, and that these fundamental precepts include equality before and under the law, and the equal protection of the law. This principle implies a second precept, which is that the same law shall apply equally for the rich and for the poor, for the weak and for the strong, and that is, more precisely, that the poor must not be denied equal access to the law because they are without economic means.
We think legal aid—and we're not alone—is fundamental to the rule of law. Sadly, we're very distant from these ideals, as you've heard from other witnesses. In the 50 years since our original submission, despite many developments in the creation of legal aid plans across the country, we're now in the midst of a crisis in access to justice, as has been pointed to by our colleagues at the Canadian Bar Association, a crisis marked by underfunding, a patchwork of disparities from province to province, a fragmentation of people's cases, in which marginalized or poor people have very complex legal problems but may get assistance in only one area and not in another. All of this has had a disproportionate impact on women, people with disabilities, members of racialized communities, indigenous people, and new immigrants, who are overrepresented in the low-income population.
As I testified last year to the Senate committee looking at delay in the justice system, in B.C., my home province, in real dollars, the amount spent on legal aid has dropped about 40% since 1995. That's 40%. In 2002, the Province of B.C. cut legal aid funding by 38% and shut down many of the branch offices and clinics across the province. To cope with the reduced amount of money that was being given to the Legal Services Society for legal aid in B.C., it had to reduce the eligibility, resulting in an increase in self-represented individuals. Right now in B.C. the qualifying cut-off is $18,000 in income, or $36,000 for a family of four. As you've heard from other witnesses, it's exceedingly difficult, if not.... It's impossible for someone making $18,000 a year to afford a lawyer to properly defend them in a criminal trial, never mind civil issues. Poverty law services were cut at that time. Everything to do with rental housing, disability entitlements, and social benefits entitlements was cut, and the majority of family law services were cut at that time as well. In family law, for example, before those cuts were made, 15,000 cases were approved for family legal aid, whereas last year in the province of B.C., there were 3,800 cases approved.
You've heard about the network of community legal clinics in Ontario, and you've had witnesses testify from those, including Ms. Avvy Go. We don't even have those in B.C. any more. They were completely eliminated. We used to have 14 community legal aid offices and 14 first nations legal offices. Those were consolidated to seven offices at one point, and then cut down to just one office outside of Vancouver for the whole province of B.C.
Who has tried to take up the slack? Lawyers have, through the law foundation funding a small network of front-line community layperson advocates to give legal information but not advice.
All of this is admirable and important, but it is not the same as publicly funded legal aid for poverty law services, for family law services, and so forth. This network, as hard as it tries, and as skilled as those individuals are, is not adequate to the daunting task that has been left before it through the cutting back of these services.
All in all, each year, several millions of dollars' worth of services are provided through philanthropy and through the goodwill of lawyers in B.C., but it is simply not enough. The increase in the federal budget this year brought some help in this regard, but with great respect to the government, $88 million over five years divided by 13 jurisdictions clearly doesn't go a very long way.
In terms of recommendations—because I want to get to that, and perhaps we can talk about other things more in questions—we think that this committee ought to be recommending that the federal government resume a leadership role in and set the tone for the provision of legal aid in Canada.
In 2011 the first recommendation of the Public Commission on Legal Aid in B.C. that we endorsed, from Leonard Doust, QC, was that legal aid needs to be recognized as an essential service. Legal aid, for people who are unable to meaningfully afford the legal services they critically need to meet their absolute needs, should not be viewed as a frill. It should not be viewed as an add-on or a luxury. Rather, it is an essential part of a just society. The Chief Justice of the Supreme Court of Canada has said the same thing, that providing legal aid to low-income Canadians is an essential public service. It needs to be recognized as such.
In support of this, we repeat our support of the recommendations made in B.C. at the time, that eligibility thresholds should be modernized nationwide. You've heard a lot of evidence about the varying eligibility thresholds. We say that the eligibility measures should be connected to a statistically determined measure of poverty, such as the market basket measure. To deal with the people who are in the middle, in the gap that you've heard about, legal aid should be provided to a category that you could call the “working poor”, at up to 200% of that income measure or cut-off on a sliding-scale contribution system. That could be worked out province to province.
We strongly urge the committee to recommend that the federal government come back to its original position to fund or cost-share 50% for criminal legal aid. Also, civil legal aid ought to be taken out of the Canada social transfer and treated separately, as with criminal legal aid, so we can make sure that is provided uniformly from province to province—obviously, working with provincial counterparts.
We think there needs to be a strong commitment to the funding of family law and poverty law. Ms. Govender from West Coast LEAF spoke eloquently about the cascading problems that can result when basic family law services, outside of abusive situations, are not covered, and how it's in the public interest and the best interests of children that those needs be better met than they are now.
We do support the CBA's recommendation for benchmarks as part of that funding discussion with other jurisdictions in Canada, but we share the caution that's been expressed. We want to make sure that we are generally benchmarking up and not benchmarking down. As much as those in Ontario—and I won't take any wind out of their sails—will complain about the inadequacy of legal aid in Ontario, it is by far better than, for example, that in B.C., where I live. We certainly don't want to be going down. We would like benchmarks to pull us up.
I'll quickly conclude with a few more recommendations.
I won't elaborate on this, but mandatory minimum sentencing is one thing that's causing a huge burden on the legal aid system. As you've heard, people are not able to plead out, or are not choosing to plead out and shorten trials or eliminate trials and so forth because of mandatory minimum sentences. We know the government is looking at that already, and Parliament will be too.
We support, as well, a continued commitment, and particularly in these times, an increased commitment, to the provision of legal aid in immigration, particularly in refugee areas, where there are very serious human rights interests at stake.
Finally, we think that any look at improving legal aid nationwide should consider the whole panoply of services that can be provided.
In Ontario, we see a network of community legal clinics providing one kind of service. We see duty council in the criminal courts, which is not something that is as widespread in other provinces. Of course, there is also the model of providing certificates, referrals, or contracts to private bar lawyers. All of these things work together to make sure that far more people will be able to access critical legal services in the future.
Thank you very much.