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Canada's Courts Are Failing Offenders with Mental Illness

The system let Donald Kushniruk down as it lets thousands of mentally ill Canadians down every year. How can we change this?

When Donald Kushniruk was arrested he was carrying this note and picture of himself. (Supplied) This article originally appeared on VICE Canada. On June 15, 2013, Donald Kushniruk, a mentally ill man, killed himself in his cell at the Edmonton Remand Centre. Krushniruk's journey through the criminal justice system was long and horrific. It all started four years prior, when he was arrested after pulling a knife on someone he was arguing with in a dog park. At the time, he was carrying a note in his pocket. It featured a bloodied and battered photo of himself and stated, among other things, "BE AWARE—standing in ignorance against that which you presume to stand for, is contrary to the way of harmony, peace, and right." It ended with the postscript "Donald continues to ask for a deluxe skateboard/bike park for his community and the clearing of his good name." This man was obviously not well. Regardless, Kushniruk entered the criminal justice system like any other. And almost immediately, the court system started mishandling his case due to his mental illness. The system just wasn't built for people like Kushniruk, who was bipolar and possibly schizophrenic. Despite his illness, he was allowed to represent himself, he didn't ask for bail, and acted erratically. His trial kept getting pushed back and Kushniruk ended up spending over two years and seven months in a holding cell for a minor crime, a sentence that was supposed to be seven days. He never recovered from this. The system let Kushniruk down as it lets thousands of mentally ill Canadians down every year. But it doesn't have to. There exists an alternative for mentally ill offenders charged with minor offenses. They are called mental health courts, and outside of legal circles they remain relatively unknown to the general public. These specialty courts operate in a similar way to drug courts in the fact that they offer prohibition and treatment as an alternative to punitive action. Chris Hay, the Executive Director of the John Howard Society of Alberta, is one of the most vocal supporters of mental health courts in western Canada. "Jail and the justice system isn't set up at all to deal with addiction, with mental health, with poverty, with all of the social aspects that we know are directly correlated with juvenile delinquency and adult criminality," Hay told VICE. "Mental health courts are a recognition that people with mental health issues aren't best served in a residential setting, meaning not lock-up, but best served with a multi-faceted approach rather than just jail." In a mental health court, the accused will either volunteer or be referred to the program and his case will be reviewed to see if he's a good fit. If selected they will work with the court to get the proper treatment for their illness as opposed to jail time. It's not an easy way out—it's a grueling and invasive process for the accused where they will have to strictly adhere to the treatment. This can include mandatory counseling, medication, random drug tests, and more. The goal is for the offender to be rehabilitated to the point of stopping all further re-offenses and offering a support structure for these people. It's an attempt to stop that revolving door which is our legal system where the recidivism (the reoffending rate) is almost 50 percent. A 2007 study published by the American Journal of Psychiatry showed that, at 18 months, the rates of graduates of mental health court reoffending dropped by a significant margin. Overall recidivism was 26 percent lower than individuals treated as normal in prison and the likelihood of a graduate being charged with a new violent crimes was 55 percent lower. That is just one of many studies showing similar facts. Justice Richard D. Schneider, who is currently the chairman of the Ontario Review Board, previously presided at the Mental Health Court in Toronto. He found mental health courts in Canada mirrored the American success. "The data is now in. We know that people who participate in the mental health court program reoffend less often and they reoffend in a less serious way and they are stable longer in the community without further supports," Schneider told VICE. "They have fewer contacts with the emergency mental health services, they have lower incidences of addiction, they have longer successful employment with lower incidences of unemployment." There are only a small number of these courts across Canada, around 15. The question is: Why does Canada have so few of these speciality courts? These courts work. They protect at-risk people and make sure they get the treatment they need. "For the most part, it should be underlined that people with mental illness are not dangerous, but when you combine untreated mental disorders with substance abuse, sometimes violence can occur," Schneider said. "So, to the extent that those individuals are treated and are looked after, they are less likely to cause harm to themselves through misadventure and less likely to cause harm to others because they are mentally well." "Mental health courts can and do save lives." Mental health courts could have helped Kushniruk, who would have been a prime candidate for the program. Instead, he had to deal with the old system, which broke down dramatically. It took the current criminal justice system two years and seven months to sentence Kushniruk. When he was finally sentenced it was only for a week. It was a sentence he had already served 134 times over within his holding cell. By the time he was released, Kushniruk had lost everything. He lost his family, his job, his home, and he was disenfranchised. After about a year on probation, Kushniruk, like many mentally ill people in his position, reoffended. He was taken into custody and once again placed into a holding cell. It was too much for Kushniruk, and two weeks later he hung himself in his cell, becoming the first person to do so in Edmonton's new remand center. "Some people will say the system broke down in terms of this case. Well, yeah, it did. Or the system is just not set up to handle mental illness," said Hays in regards to the Kushniruk case. "So this isn't a one [fell] through the cracks kind of thing. This, and cases like it, are tragic incidences and there are more to come. Many more. There really has to be something done here." Mental health courts are staffed by people who are trained specially to handle mentally ill offenders. The people staffing a mental health court know how to deal with the outbursts that a mentally ill defendant can make, and the appropriate actions to take. Whereas a typical court does not. After Kushniruk's trial, the court complained, in a memorandum, that Kushniruk was being disruptive throughout the trail and had to be forcibly removed several times. The memorandum said, "None of the delay was due to the Crown." This is true. The delays and the exorbitant amount of time that Kushniruk spent in his holding cell aren't the fault of any one particular person. The guilt falls squarely at the feet of our broken court systems and how it handles people suffering from mental illness. The problem is systematic. "I think our justice system is the epitome of Einstein's concept of insanity. Doing the same behavior over and over and expecting a different outcome each time," said Hays. "That's what we often do in the justice system in terms of the mentally ill. We use jail as that same behavior over and over and we expect a different outcome. And when they are released, they re-offend and we all gasp. "In a sad way it's almost comical." Mental health courts aren't a cure-all. But when you have an epidemic of mentally ill people behind bars, something needs to be done. Former Calgary Chief of Police Rick Hanson told the CBC that half of prisoners behind bars suffer from mental illness. That's not a small amount. And we need to be doing more for these people. Detractors state that specialty courts take resources away from our normal already overburdened system. This is a short-term issue impeding a possible long-term monetary and social solution. The courts save the system money by reducing the recidivism rate of prisoners and by not jailing the offenders, which is expensive. But still, the majority of mental health courts in Canada are not funded. They instead typically work by redeployment of existing resources rather than new funds. Hay feels that one of the major reasons behind the lack of support is the general public's lack of knowledge of exactly what a mental health court is. "I think the general public thinks we are just pandering to the offender, that we are being bleeding hearts. When, in fact, they don't understand that the programs are far more intrusive and far more significant than any jail term," Hay said. "The ironic part to me is that I think the government likes to show that they are tough on crime, but the tougher we get, the worse off we're going to be." In Canada, we have a government that is hard on crime. The majority of funding is being directed towards punitive measures in the criminal justice system. It's just not sexy to put in long-term programs where you won't be able to see results for a long time. It's simply not something that will get you votes in the next election. What's sexy is building prisons and flexing your arms while throwing prisoners in jail. A politician will find their votes not in long term solutions but in flashy and tangible tactics and frankly that is a disservice to our country. More importantly that is a disservice to some of the most vulnerable in our population. Donald Kushniruk once woke his family up in the middle of the night so they could all watch a meteor shower together. He wasn't a bad man, he was a man who fell into the tense grip of an illness. The person his ex-wife and daughter described to the CBC was a good father, a good husband, and a good person. If Kushniruk had walked through the doors of a mental health court instead of the ones we offered him, he may have had a chance to become that man once again. Follow Mack Lamoureux on Twitter.