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Robert Singer described his stay in Toronto's Don Jail as 'cold, dank, lonely, dark.'

Kevin van Paassen/The Globe and Mail

An Ontario Superior Court judge has blown a hole in a lower-court uprising over mentally ill offenders who are shunted off to jail cells because of a bed shortage at mental hospitals.

Mr. Justice Ian Nordheimer concluded that an Ontario Court judge acted unreasonably when she prevented authorities from placing unfit offenders in jail to await a hospital bed.

The decision last week was a victory for frustrated administrators at Toronto's Centre for Addiction and Mental Health (CAMH), who have been scrambling to accommodate unfit offenders since the issue exploded last fall.

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"It is clearly the decision we had hoped for," said Sandy Simpson, clinical director of the Law and Mental Health Program at CAMH. "If the person is not very well and it is possible for them to wait a few days while we are finding a bed, then that is acceptable and in line with the workings of the rest of the criminal justice system."

The standoff began when some judges used a Criminal Code provision that allowed them to remand offenders "forthwith" to hospitals. The orders meant that jails could no longer legally accept them, so offenders were redirected to cells in police divisions as a last resort.

Judge Nordheimer said it is unrealistic to expect CAMH to free up beds instantly, and police cells are not an acceptable alternative.

"Not only are the police not properly equipped to deal with these people, it is not the role of the Toronto Police Service - or any other police service - to house these people," he said. "It is also not appropriate to foist the burden of this problem onto the police or to saddle them with the fallout from this conflict."

Dr. Simpson said that the decision binds all Ontario Court judges, effectively ending the dispute.

In making its case, CAMH had singled out specific judges who were ordering mentally ill individuals to hospitals despite knowing there were no beds.

One of those judges who precipitated the standoff, Ontario Court Judge Mary Hogan, noted in one ruling that the bed shortage was chronic. "Nothing that I can see over the past number of years has changed," she said. "It is the mentally ill in this province who have to live with it. That, to me, is not something that the rest of us should accept. It is wrong."

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Lawyers for the mentally ill offenders expressed disappointment, saying the Nordheimer decision will reduce pressure on the province to expand hospital facilities.

Chris Hynes, a Toronto lawyer, said that Judge Nordheimer might have ruled differently had he been dealing with an offender who had languished in jail for several weeks or months, instead of a few days.

"This is happening and will continue to happen without an overhaul of current practices," Mr. Hynes said. He said that the best solution may be for judges to set a tight deadline for CAMH to find a bed, such as two or three days.

Dr. Simpson said that waiting lists for hospital beds are now down to near zero, thanks to careful administration and co-ordination among hospitals.

Mr. Hynes agreed that wait times have dropped, but he expressed skepticism about CAMH's statistics.

The roots of the problem date back 30 years, when the province established a deinstitutionalization policy and mentally ill people were discharged into the community. Some committed crimes and found themselves caught up in the criminal justice system.

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Robert Singer, who spent several weeks at the Don Jail last summer waiting for a CAMH bed, said that jail is no place for the mentally ill. "Cold, dank, lonely, dark - and all they do is scream at you," Mr. Singer said. "You very rarely get to see your psychiatrist."

An estimated 15 to 20 per cent of the Ontario jail population has a serious mental illness - 6,400 people at any point in time.

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