Is the criminalization of mental illness a by-product of police action?
Those living with mental illness are over-represented in Canada’s justice system. Approximately 36 per cent of federal offenders need psychiatric or psychological follow-up. Further, 45 per cent of male inmates and 69 per cent of female inmates receive institutional mental health care services, according to a report by Sapers & Zinger (2012).
Mental illness is also a significant factor for police who are called to respond to emergencies, having first to recognize the issues and then to respond appropriately by de-escalating the situation.
Over the last 10 years, we have seen high profile fatal police interactions with individuals experiencing mental health crises, for instance, Sammy Yatim, Michael Eligon, Paul Boyd, and Robert Dziekanski.
While there are a number of factors that contribute to this over-representation, societal stigma associated with mental illness and police interaction play significant roles in many cases.
The numbers can be sobering. About 20 per cent, or about 7.03 million Canadians, will experience mental illness in their lifetime (Smetanin et al., 2011). Of those, about 1.4 million people will have also have a substance abuse problem (Rush et al., 2008). Schizophrenia affects one per cent of the Canadian population or about 351,000 people (Canadian Mental Health Association). And young people aged 15 to 24 are more likely to experience mental illness and/or substance use disorders than any other age group (Pearson, Janz and Ali, 2013).
Mental illness generally manifests very differently than physical trauma or disease and as a result, police and not paramedics are often the first responders when a mental health emergency occurs. In 40 per cent of these interactions, no criminal behaviour occurred, and in 40 per cent of these interactions, the criminal behaviour was nonviolent (Brink et al., 2011).
Yet how police respond to these emergency situations may predict the likelihood of further interactions with the criminal justice system (MOHLTC, 2006). In cases where officers use their discretion under the Mental Health Act and bring an individual to hospital, that individual will be assessed and likely provided the medical treatment they require to address the underlying cause of the behaviour which prompted police attention.
Alternatively, if individuals with mental illness are arrested and incarcerated, they may experience more severe manifestations of their mental condition, isolation from community support and services, an increased risk of homelessness, and an increase in stigma and discrimination.
What then determines how an officer deals with these situations? Why are some officers able to effectively de-escalate situations where others seem to aggravate them? Why do some officers use their discretion under the Mental Health Act to take those experiencing a mental health crisis to hospital while other officers choose arrest and incarceration?
If we begin from the position that police officers for the most part inherently want to do good, then the answer seems to revolve around the nature of the criminal act and education/training.
In cases of violent crime, an officer’s discretion is significantly reduced and an arrest may often be warranted. In such a situation, an individual will be arrested and will proceed through the courts. Possible outcomes are acquittal, conviction, or a finding of not criminally responsible which will then bring the accused under the jurisdiction of the Ontario Review Board.
In other police interactions where officers have more ability to use their discretion, it seems that some officers are simply better trained to recognize that they are dealing with mental health issues or better trained to de-escalate the situation and they adjust their approach accordingly.
Given the prevalence of mental illness in Canada, it is logical to expect police officers to have education and specific training in how best to deal with mental health related issues and situations especially where criminality is not present. Today, police officer candidates can take an introductory psychology course—nowhere near enough to deal with our current reality.
In an attempt to address these issues, there are programs implemented in different regions such as the Community Outreach and Stabilization Team in Peel, the Mobile Crisis Intervention Teams in Toronto, and the Help Mobile Crisis Team in Chatham-Kent. However, these programs are based on available mental health resources and are only useful when officers who attend as first responders utilize their availability.
It follows that police education and training requires significant reform to ensure that all officers are provided the necessary information, techniques, and training to effectively manage incidents with suspected mental health interactions. Moreover, given the fundamental need to maintain the safety of all involved, a greater emphasis must be placed on verbal non-coercive approaches to de-escalation of acute aggression.
Robert Karrass is a Toronto based lawyer who specializes in criminal law, professional discipline law, and appeals in all levels of court. Reach him at robert@karrasslaw.com.
This article originally appeared in the Feb. 24, 2017, issue of The Lawyers Weekly published by LexisNexis Canada Inc.