Mentally disordered individuals are becoming enmeshed in the criminal justice system at alarming rates. Experts tell us that there are now more such individuals in our jails and prisons than there are in our hospitals. Depending upon how you define “mental disorder” between 20 and 80 per cent of Canada’s inmate population suffer from a mental disorder.

The criminal justice system is left having to deal with individuals who are in the system because of untreated or inadequately treated mental illnesses rather than deliberate criminality. It is not a good place for them to be. Unfortunately, for many, the criminal justice system has been the only place where they have received adequate treatment and support.

The Death of a Butterfly: Mental Health Court Diaries is a collection of short stories and vignettes that collectively, it is hoped, paint a colourful picture of how the mentally ill fare in the criminal justice system. There is good news, and there is bad news.

The focus is on the comings and goings of our mental health court, which opened in 1998 in downtown Toronto. Some of the bits are “snapshots,” while some are stories that continue over the course of several days or months. While the content is disparate, it is one fluid story in the sense that it is a depiction of how days in the court are spent. The work of the court is varied, as are the depictions; but they are typical days. And while the focus is on the mental health court, some of the more protracted matters ran their course in the regular trial courts as time and space required.

The stories highlight medical issues, psychiatric issues, social issues and legal issues — often at the same time. The stories are all real but the names have, for the most part, been changed (including in the following excerpt) even though the proceedings are matters of public record. There is an eclectic array of individuals travelling through the courthouse for all sorts of different reasons.

Many of the stories are based upon actual court transcripts and psychiatric reports that I was lucky enough to have retained; other stories are based upon my memory of the events and notes contained in my bench books which I have saved over the past almost 20 years.

The material was collected over many years as it occurred to me to record interesting events in the courtroom. In a sense Butterfly is a “scrapbook.” The content points to many problems throughout our legal and mental health systems. As a composite, these many pieces tell a singular story, and I am mindful that the system can always improve.

I am hopeful that the reader will find these depictions as interesting as I have found my work over the past 40 years.

Mr. David Chesswood was returning after lunch to be sentenced. His matters, involving criminal harassment, were too serious to be considered for diversion.

Diversion is typically only available for the low- to mid-range criminal offences. (Diversion involves offering accused who are charged with less serious offences the option of participating in a rehabilitative program, which, if successfully completed, will result in their charges being withdrawn by the Crown. This is good not only for the Crown, who has one less matter to prosecute, but also for the accused, who avoids the possibility of a criminal conviction. It is also the route that best ensures the community’s safety.)

I had taken his plea of “guilty” several weeks before but had ordered a pre-sentence report (a report prepared by a probation officer that provides the court with relevant background information about the accused) due to the very odd and concerning nature of the offences he had committed. This was followed by a psychiatric assessment pursuant to the provisions of the Mental Health Act.

Mr. Chesswood described to the author of the pre-sentence report that he “went insane” approximately five years ago and was hospitalized for a “nervous breakdown.” This is generally a euphemism for a first psychotic episode, as there is (Hollywood notwithstanding) no medical condition known as a “nervous breakdown.”

He was of the view that his breakdown was the result of “a lot of pain and hardship and [he] was unable to deal with anger and [his] behaviour became strange. [He] didn’t seek help and started drinking, typically to the point of unconsciousness.”

As is unfortunately all too often the case, he then started smoking crack cocaine a few years ago whenever he “became depressed — it gave [him] a lift.” He drank to “numb [his] mind and take away the pain. [He has] a lot of pain inside [himself].” This self-medication inevitably aggravates the individual’s psychiatric condition. As well, excessive drug abuse may actually cause conditions that mimic very closely major mental disorders.

According to his father, David was deprived of oxygen at birth, which he and his wife were told might cause brain damage. For the first two years of his life, David experienced seizures and was periodically hospitalized. However, as he got a little older the convulsions ceased, the hospitalizations stopped, and everything was “normal” until the age of 18, at which point he became more reclusive and started his experimentation with drugs and alcohol.

By this point, he spent most of his time on his own composing music. After a very bad final year in high school, David recovered well enough to move on to the University of Toronto, where he completed three years of a four-year degree in history and philosophy. He then abandoned school again, moved out of the family home, and began spending all of his time composing music.

David’s father said that over the past five years, his son had been in a state of steady decline. He had become violent and aggressive toward family members, and the police had to be called on several occasions.

David’s mother and father feared for their lives when he had been drinking or was high on drugs. Despite all of this, they remained firmly beside him and urged that he be institutionalized so that he could become stable prior to any further attempts to reintegrate him into the community. They were unable to handle him at home in his current condition.

David was clearly an extremely bright student, earning a 92.5 per cent average prior to his “breakdown” during his last year of high school. He had been committed to the hospital as an involuntary patient on at least one occasion, and he was previously admitted to the CAMH Concurrent Disorders Program.

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His parents were of the view that this program was not particularly effective, as it only had one hour of counselling once per week. David was eventually discharged from the program as a result of his leaving sexually explicit and harassing telephone messages on the voicemail of female staff members at the program. He provided the facile, or less than insightful, response that he was intoxicated when he left the messages.

David’s diagnosis had been delusional disorder, in partial remission; major depressive disorder, in partial remission; and poly-​substance abuse disorder (cannabis, alcohol, and crack cocaine).

David describes himself as a “good, caring, and loving man” who has experienced “some really bad luck” in the past five years. However, his insight is described by his psychiatrist as “fleeting and superficial.”

The principal charge presently before the court is that of criminal harassment. His psychiatrist, Dr. Mitchell, is the complainant. He had left dozens of messages on her voicemail, which were disturbing in the extreme. They were chilling — graphic, violent, pornographic and obscene. When interviewed, David did not see the “criminality” in what he had done, but rather, viewed the whole thing as a form of “amusement.”

He stated that he wanted a “date” with Dr. Mitchell, but did not know how to go about getting one: “I thought she might be lonely or single and might enjoy a pornographic message,” he said.

The author of the pre-sentence report felt that David might do better with a male psychiatrist in that David was of the view that “women committed crimes against [him] by not loving [him]. All women purposefully stay away from [him]. It’s a conspiracy against [him].” While he self-described as a “porno addict,” he denied fantasies, interests or behaviour consistent with a paraphilia or sexual deviance.

At the end of it all, the diagnostic picture was disappointingly unclear. Despite previous diagnoses, the present assessment could not provide any conclusive answers or suggest any course of treatment other than that David and intoxicants, alcohol in particular, were a bad mix. The psychiatric assessment did not point to a defence of “not criminally responsible on account of mental disorder” and neither party was pursuing it.

As is often the case, he had spent a significant period of time in custody while these various assessments were being conducted. By the time he was before me for sentencing, the custodial component of any reasonable sentence had already been served. I placed him on probation for the maximum period of three years with terms that he comply with any treatment directed by his probation officer. He agreed to these terms.

The conclusion of David’s matter was, from my perspective, unsatisfactory but not atypical. I am sure that his parents are not optimistic that their son will comply with the terms of my order. I’ll keep my fingers crossed.

With the “That’s the list, Your Honour,” I requested that everyone have a good evening and made my way up the five flights of stairs to my chambers thinking to myself on the way up how perverse it was that the criminal courts were trying to do the work that should rightly be picked up by the mental health-care system. Who would have guessed that the criminal courts would be reconfigured as principal dispensers of mental health care? And then, with the new role assigned by default, would not be provided with adequate resources to get the job done?

Something is desperately wrong with our system.

Just as the jails have become the de facto psychiatric hospitals, the police are having to respond to individuals in psychiatric crisis and then decide what is best to be done. It is time for a reset.