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'Existential crisis': There's a mental health problem in B.C.'s courts

Multiple mental health-related situations are causing delays in B.C.'s court system, delays that could result in people going free as their right to a speedy trial is violated.
Psychiatric reports not being ready for cases to proceed is not uncommon in the court system.

This is the first story in a five-part series looking at how mental health issues are pervasive in B.C.'s courts. First we look at those accused of crimes, then move on to how the courts operate, then examine lawyers and court staff and, finally, outline possible solutions.

Locked in a Vancouver Provincial Court prisoner’s dock penned in by safety glass, Andrew Jordan Norfield was expecting to be sentenced but found his case delayed.

He was facing charges of possession of stolen property, dangerous driving and failing to stop at an accident. He had been in custody 179 days and assessed as mentally fit to stand trial in February but a second such assessment was ordered in May.

“I’m fit to stand trial,” Norfield shouted, kicking the dock door heavily and swearing at the court.

That led a deputy sheriff to push the silent alarm for assistance. More sheriffs came.

The delay was due to a lack of beds at B.C.’s Forensic Psychiatric Hospital (FPH) for him to have a mental health assessment prior to sentencing.

The incident left Judge Patrick Doherty asking questions.

“Why was he brought in person today?” he asked.

“It looks like there’s a lot of mistakes with regard to this young man and he’s just unravelled,” he said. “It’s not acceptable. He should have been sentenced today.”

Such situations such are not unusual in B.C.’s courts.

Such a scene played out again July 21 as two cases were adjourned in the space of 20 minutes. Psychiatric reports weren’t ready for cases to proceed due to backlogs. The situation happened again three days later.

In a 2022 manslaughter case, a pre-sentencing report due Aug. 9 showed up Oct. 21. Judge David St. Pierre called the situation “ludicrous.”

The situations leave the accused and victims' families in limbo.

Sometimes, accused are in cells but deemed unfit to be brought into court. It’s not uncommon for some prisoners to be in cells where they have smeared in their own excrement.

Taking a long view, such situations are part of a larger mental health problem that appears to be plaguing B.C. courts.

Mental health concerns

Such situations are not new. The federal government has known for more than a decade the challenges accused people face.

“Canadians with a mental or substance use disorder are nine times more likely to come into contact with police for problems with their emotions, mental health or substance use, and four times more likely to be arrested than Canadians without a mental or substance use problem,” then federal attorney general and minister of Justice David Lametti said in a November 2022 statement.

A John Howard Society report, titled Unlocking Change: Decriminalizing Mental Health Issues in Ontario, said the criminal justice system has become a warehouse for people whose mental health issues have gone untreated or undetected in the community.

“When the health-care system fails to treat mental illness, the criminal justice system punishes the symptoms,” the society said.

Mental health and the courts is one of many issues UBC law professor Benjamin Perrin addresses in his new book, Indictment: The Criminal Justice System on Trial.

"Our criminal justice system is facing an existential crisis," he said.

He quotes Dalhousie University law professor Adelina Iftene saying, “criminal justice has become the asylum of the century.”

The 2015-2016 annual report of the federal Office of the Correctional Investigator backs that up.

“For the seriously mentally disordered and addicted, a sentence of imprisonment has become the contemporary equivalent of being sent to the asylum,” the report to then minister of public safety Ralph Goodale said.

Moreover, Perrin told Glacier Media, the courts frequently set up those with mental health problems to fail because their disorganized lives mean they can’t get to court and wind up with more charges being laid.

It’s an issue that is heard again and again in Vancouver Provincial Court where lawyers discuss sentences. Judges hear repeatedly that conditions shouldn’t set people convicted of crimes up for failure when conditions are imposed that they cannot meet due to mental health issues.

Still, charges for breaches of court-ordered conditions or failures to appear in court are a standard feature of any day’s court docket.

Perrin said it’s a coercive and punitive system that increases punishment rather than dealing with root causes when it comes to people with mental health issues.

He said re-penalizing can be catastrophic for the mentally ill because it just perpetuates their passage through the courts.

Perrin said, “the criminal justice system is fundamentally flawed because its primary objectives cannot be met — and are in fact thwarted — by incarcerating people experiencing mental health distress and who have unresolved trauma.”

Assessments and forensic psychiatric services

Also taking a toll on the system’s efficiency in serving the public is a lack of psychiatric beds for assessments to be done in person before sentencing or trial, a backlog of pre-sentencing reports waiting to be written and underfunding of the so-called Gladue system for pre-sentencing reports for Indigenous offenders.

When a person attends for a criminal case in provincial court, they may be ordered by a judge to undergo a mental health assessment. It could be an overnight assessment to start but a longer assessment may be ordered to determine fitness for trial situation.

Such assessments can also be done at multiple correction facilities through B.C. Mental Health and Substance Use Services.

In the past four years, according to Provincial Health Services (PHSA) figures, overnight assessment numbers are:

• 2020 – 282;

• 2021 – 295;

• 2022 – 335; and,

• 2023 – 107 so far.


And, the fitness assessment numbers are:

• 2018/19 – 255

• 2019/20 – 154

• 2020/21 – 97

• 2021/22 – 143

• 2022/23 – 124

It’s worth noting that the 2020-2021 periods were the height of the COVID-19 pandemic where the general population's mental health was of concern.

Between the 2018-2019 and 2019-2020 years, the province’s JUSTIN court database data provided by the provincial government shows psychiatric assessments jumped from 903 to 1,087 before settling back to 669, 656 and 673, respectively, in the subsequent years.

Many of the cases from the start of the pandemic period remain active in the courts.

However, the 2021-2022 B.C. Provincial Court chief judge’s report shows case numbers were declining during the 2018-2019, 2019-2020 years from 62,931 to 61,748 and then 47,924 and 45,500 in 2020-2021 and 2021-2022, respectively.

So, no matter which assessment metric is used, as the pandemic progressed, criminal cases were declining while psychiatric assessments were increasing.


Right to a speedy trial

What does all this mean for the average British Columbian?

When the mental health and reporting delays are coupled with those presented by the pandemic, another issue presents itself — the right to have court hearings proceed expeditiously.

It’s where the name Jordan comes in, a name heard more and more frequently in B.C.’s courts of late.

In July 2016, the Supreme Court of Canada decided an important appeal, R. v. Jordan. The high court set a time ceiling for criminal trials, saying they should finish either 18 or 30 months after a person is charged, depending on the type of trial. 

If that does not happen, charges can be stayed or convictions put aside.

Currently, cases thousands of days old are not unusual in B.C. courts. Those accused could walk if judges find their rights to a speedy trial have been violated under Jordan.

Legal aid

The right to legal representation, including legal aid, before the courts remains a thorny issue that has been studied repeatedly in B.C. and Canada.

In an April letter to Lametti, Legal Aid BC CEO Michael Bryant addresses mental health.

“Most of the criminal legal docket in Canada today is a heap of over-charging, over-incarcerating, and under-defending of folks overrepresented by their race, poverty, mental health, and addiction,” he said. “And because those thrown to the wolves are an anonymized, diffuse, statistically small, politically weak, and highly stigmatized minority of minorities.”

Forensic Psychiatric Hospital

The hospital is operated by the Forensic Psychiatric Services Commission, which also operates six community forensic psychiatric services clinics. The commission conducts fitness assessments of people before the courts and provides treatment for those found not guilty by reason of a mental disorder.

PHSA said the facility has had 190 beds since 2017.

Even as psychiatric assessments needs were increasing as criminal cases declined, the courts were having problems getting those assessments done due to a lack of resources.

The courts have repeatedly heard there is a lack of beds at the hospital where the number of spaces has remained at 190 since 2017.

The PHSA began cutting back on forensic services in 2002/2003 with a March 15, 2002 document noting cost reductions could have an impact on public safety. At the same time, the FPH was expecting an influx of patients due to the pending closure of the Vancouver Pretrial Centre.

PHSA said the number of psychiatrists at the hospital was at 10-11 for 2017-2021 before rising to 16 in 2022-2023. It then fell to the 2021-2022 rate of 14 for 2023-2024. Correctional Health Services’s available psychiatrists sits at 12 for the 2023-2024 year, the same as 2021-2022. That number fell to nine last year.