"Capping" of sentences for those with mental illnesses caught in the criminal justice system

As a result of the high-profile criminal case involving Tony Rosato who was found guilty of criminal harassment of his wife, the court system is finally reviewing the “warehousing” of people who, for reasons of mental health, have been given open-ended sentences to mental health facilities.

Previously, lawyers have been reluctant to call for their clients to be declared not criminally responsible on account of mental disorder. In doing so their clients faced uncertain futures in mental health facilities, even when their conditions were treatable and, in fact, treated.

“Capping” the sentences would allow judges and the Parole Board to monitor the progress of those found guilty and to allow judges greater freedom in sentencing in such a way that they would get the treatment they needed.

“Several years ago, Parliament passed capping provisions that would limit the time an offender found not criminally responsible would spend in a mental hospital, but they were never proclaimed into law. At the close of the trial, Brodsky said the verdict sent a political signal to Ottawa that the capping provision should be revisited.

Brodsky, who is one of the founders of the Association in Defence of the Wrongly Convicted and who does half his practice in mental-health law, also said the ministry should set up provincewide, coordinated, regional, mental-health courts similar to the full-time dedicated one that exists in Toronto.

“The province itself isn’t regionalized, and it has to be,” says Brodsky.
The courts, in which Crowns and defence lawyers are specially trained in mental-health law work, should exist across the province so that future defendants don’t languish in a provincial lockup like Rosato, he says.

Currently, the only full-time court dedicated to mental-health issues is at Toronto’s Old City Hall. A handful of sporadic, part-time programs exist elsewhere, for example in Ottawa, but “the gaps between them are as large as the Grand Canyon,” he says.

“This is not a big cover-up or conspiracy case, it’s just a case that’s dragged on far too long,” he said.”

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