A profound glimpse into Canada’s justice system arose this month in an obscure set of circumstances. An eminent provincial court judge revealed stark, shocking facts about those charged with crimes, when his successful application to the Ontario Court of Appeal was disclosed to the public. Justice David Paciocco summed up the criminally accused in five words: “Often sick, always in need.”

Put another way, Canada has unwittingly criminalized mental illness. Those of us who work in the field take this fact for granted, too easily forgetting that criminalizing the unwell is an urgent societal injustice.

Paciocco wrote that his six years on the Ontario Court of Justice in Ottawa exposed him to a “world of poverty, homelessness and mental illness.” These comments could be made about any courtroom across Canada.

Back when Justin Trudeau’s father was prime minister, the provinces began deinstitutionalizing the mentally ill.

Premised on the idea that individuals with mental illnesses would be better served in the community, larger institutions started to close. Unfortunately, unintended consequences arose, including a shortage of supportive housing units, and difficulties in accessing community treatment for individuals in need.

That’s when police became front-line triage workers for the mentally ill. Instead of diagnosis and treatment, police did what they were trained to do: investigate, arrest and charge people with criminal offences.

Those previously institutionalized in mental hospitals became institutionalized in jails. A smattering of specialized mental health courts emerged over the past 20 years, but they address a tiny fraction of the million-plus charges laid annually in Canada. For decades now, the “often sick, always in need” have invariably wound up in jails.

From arrest to prosecution, conviction, sentencing, use of segregation, all stages of our criminal justice system are now consistently overrepresented by people who are suffering from psychosis, mania, mood disorders, depression, alcoholism and addiction, anxiety disorders, and personality disorders.

Statistics typically catch only the tip of the iceberg, depending on researchers’ limited ability to access the inmate population, but existing data is concerning.

While police have made very important investments in mental health strategies, people with mental health issues still experience disproportionate contact with police and higher levels of arrest.

The Office of the Correctional Investigator has noted that about 25 per cent of male federal inmates have an identified mental health need. The number is much higher for women — more than 50 per cent. The numbers are even worse for youth.

In one Ontario study, 80 per cent of youth in detention met the criteria for at least one mental disorder as outlined in the Diagnostic and Statistical Manual of Mental Disorders.

Those suffering from mental health issues who are swallowed up by the criminal justice system do not fare well. The use of segregation or other standard isolation practices are the clearest examples of a system whose practices rooted in punishment and control can exacerbate the challenges facing people with mental health issues. Individuals leaving the system leave with unmanaged or worsened mental health issues, which can contribute to recidivism.

What can be done?

The justice system is not the ideal place to diagnose and treat the unwell. While there is no panacea, the better way is to ensure people get help when they need it, before they are at risk of homelessness, unemployment, or conflict with law.

This would mean:

Investing in widespread and accessible mental health supports in communities.

Targeting the social determinants of health, such as poverty, employment, and homelessness.

Prioritizing a system that effectively screens individuals for mental health issues and diverts them, pre- and post-charge, from the courts.

Fostering a corrections system that does not punish symptoms of mental health and ensures that released individuals have a plan in place to support their housing, employment, addiction, and treatment needs in the community.

A preventative approach must also be accompanied by coordination and communication across systems. The multitude of existing strategies and initiatives would benefit from an overarching criminal justice mental health framework that would drive a co-ordinated response across police, courts, corrections, and the community.

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Paciocco’s poignant words offer a rare opportunity to affirm what we all suspect: our constitutional principles of fundamental justice are folly for the vast majority of those charged and prosecuted in Canada.

The most vulnerable of the presumed innocent are being punished for their disability — the very thing that deserves our help, not a criminal charge and incarceration.