Role of Counsel in the Mental Health Court

 

During the 2004 year, members of the Mental Health Court Team were invited to reflect on their roles in the Court program and prepare a short comment.

 

Following are commentaries by two of the lawyers who served on the Team, one who represented the Crown and one who continues to represent accused as Special Duty Council.  They agreed to share their comments.

 

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Steve Hinkley, who served as Crown prosecutor until April , 2004, and who prepared his comments for use by his successors in the role, wrote:

 

“There will come a time in the mental Health Court where you, as a Crown will ask yourself: 

 

                        ‘Just what am I supposed to be achieving here anyway?’

 

In order to answer that question, you have to understand what the role of the Crown IS in Mental Health Court.

 

The best way to understand this is to remember what the role of the Crown is generally.  No better statement of this exists than that of Justice Rand of the Supreme Court of Canada in R. v. Boucher [1955] S.C.R. 16:

 

“ It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime.  Counsel have a duty to see that all available legal proof of the facts is presented:  it should be done firmly and pressed to its legitimate strength but it must also be done fairly.  The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility.  It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.”

 

Now, all of that sounds very pretty, but what does it mean to YOU in the long run?

 

In my opinion, when you look at the Role of the Crown in general, you get a “long term” view and vision of what you are doing in the Mental Health Court.

 

Mental Health Court starts with the assumption that the accused who is in front of the court has come into conflict with the law as a direct result of their mental illness.  As a result, until the mental illness is addressed, this accused is going to continue to appear before the courts, with you, until:

 

1.      They get treatment, or

2.      You retire.

 

Contrasting that with the statement from Justice Rand above, your role starts to make a little more sense.  Your role as a Crown is to discharge the duties of your office by ensuring that this person’s risk to society is lessened, in the long AND short terms, by helping that person to comply with voluntary treatment, and by enforcing meaningful consequences if they are unwilling or unable to do so.

 

In practical, day-to-day sense, this means that your job is to balance the overall protection of society with the individual rehabilitation of the accused before the Mental Health Court.

 

Does the court work?     Yes it does, and its very good at helping both of us, being society and the accused, with the net result that recidivism, and the immediate risk to the public is greatly reduced, and consequently you have discharged your duties as outlined by Justice Rand. 

 

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Margaret Gallagher, special duty counsel since the beginning of the Mental Health Court program, shared her comments as instructive for other duty counsel and wrote:

 

“Duty Counsel in Mental Health Court

 

Duty Counsel is always provided to persons appearing in Mental Health Court, 

at all phases of the process.    Participants can expect to meet the same duty counsel each time they appear.  

 

The referral  role of all Duty Counsel is to identify those who might be eligible for participation in the Court.  This might be based on initial observations or comments made by an accused, family members or support persons who come to court with an accused, or from disclosure of circumstances surrounding the alleged offence. 

 

It is important at this stage  not to confuse possible eligibility for Mental Health Court with issues of  fitness to stand trial, or a possible finding of Not Criminally Responsible on account of a mental disorder;   the procedure to follow in these cases is set out in the Criminal Code.

 

Once a referral is made to Mental Health Court ,  the accused will attend on the assigned date and  Mental Health Court Duty Counsel must determine whether an accused

·        accepts responsibility for having committed the act which led to the charge

·        accepts that he suffers from a mental illness or disability which is related to having committed the offence

·        understands the general principles of the Mental Health Court

·        is prepared to make the long-term commitment to compliance with conditions,

and

·        wishes to apply.

 

This review might include family members, but must always include a few minutes with only the accused.

 

Once an accused indicates a willingness to participate in Mental Health Court, Duty Counsel will present a brief background of the accused and his offence to the Mental Health Court Team, and the Admission  phase will begin.    During this time, the accused will be ordered  to attend for assessment, and may be required to comply with other conditions, such as residency, curfew, or no contact with certain individuals.  Here,  the role of duty counsel is to explain the importance of compliance with conditions, not just from the legal perspective, but also as an essential component to continued participation in the Court.    Also, with each appearance, it is important to

 

·        review the accused’s activities since the last court appearance;  this should not be

restricted to compliance issues, but mental health,  lifestyle and any issue important to the accused

·        make sure that the accused continues to understand the process and wishes to continue to participate in the court

·        respect the accused’s right to speak privately to duty counsel.

 

This role for Duty Counsel  will not differ much through the Compliance, Acceptance  and eventually the Program phase, through Completion.    It is important to always  recognize even  the smallest progress, and to be absolutely  candid about the consequence of all setbacks.   It is also important to be constantly mindful that a participant in Mental Health Court may present differently with each court appearance, at least partly because of the mental illness, and the effect of medication.”