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November 18, 2010 -- A client bedroom, constructed in the mid-70s, in the schizophrenia program at CAMH in Toronto.Della Rollins for The Globe and Mail

The jail shuffle is back on for mentally ill offenders in Ontario.

In a decision that has thwarted a rebellion by mental health court judges, the province's highest court said judges cannot insist that offenders be accommodated immediately at over-packed mental hospitals.

The Ontario Court of Appeal ruling gives hospital administrators the right to turn away offenders, causing them to be lodged in jails or police holding cells while they wait for a hospital bed to open up.

The appeal court accepted the position of Ontario's Centre for Addiction and Mental Health that it does the best it can to find beds for offenders sent to it for court-ordered treatment.

However, some advocates for mentally ill offenders condemned the decision for giving hospitals carte blanche to shunt sick people off to face the dangers and privations of a jail setting.

"The case is of national importance and has a dramatic impact on the rights of those who are unfit and require treatment that we know will render them fit for trial within a very short period of time," said Anita Szigeti, a lawyer for the mentally ill.

Ms. Szigeti said the obvious solution is for the province to create more forensic beds. She also urged the creation of legislation that would empower the courts to override hospital administrators who refuse to accept patients.

"Can we imagine if jail superintendents were given the power to refuse to accept prisoners simply because they considered themselves to be too full?" Ms. Szigeti said. "These people are going to continue to languish untreated in prisons at grave risk of being hurt or killed, as tends to happen tragically from time to time."

Thursday's ruling involved a Toronto man, Brian Conception, who suffers from schizophrenia. In late 2010, Ontario Court Judge Mary Hogan concluded that Mr. Conception was unfit to stand trial on a minor offence. She ordered CAMH to stabilize his symptoms as soon as possible.

Aware that patients had been routinely rerouting offenders to jails, Judge Hogan specifically directed that Mr. Conception "be taken directly from court to the designated hospital and from hospital directly back to court. Accused is not to be taken to a jail or correctional facility under any circumstances pursuant to this order."

Since CAMH did not have a bed, Mr. Conception was left in a hallway until one opened up.

Meanwhile, other judges joined the rebellion, ordering hospital officials to stop shunting unfit offenders to provincial jails.

In their ruling, Court of Appeal judges Robert Blair, Janet Simmons and Alexandra Hoy readily conceded that jail is no substitute for medical care. Jails are generally unable to provide psychiatric help, they said.

Mentally ill offenders also tend to deteriorate behind bars and face a threat of danger from other inmates, they added: "Nobody wants to see a vulnerable, mentally ill person sent to jail when they should be in a hospital."

However, the court said financial realities require a pragmatic assessment. It said that, in a hospital system that strives to find space for patients, it can sometimes take a while to do so.

"The jurisprudence is clear that principles of fundamental justice encompass not only the accused's interests, but also collective, societal interests – and that an accused person is not entitled to the most favourable procedures possible," the court said.

Chris Hynes, a Toronto lawyer who represents mentally ill offenders, said he was encouraged that the appeal court said that judges can monitor hospital waiting lists to ensure that delays in finding bed space do not become unreasonable.

"Unfortunately, what is reasonable has not been determined," Mr. Hynes added. "The court was not asked to determine that issue."