This week on Legally Speaking with Michael Mulligan:
In the context of a judicial review of a decision to compel a patient to continue to receive antipsychotic medication against her will for many years, the difference between bail in a criminal case and involuntary treatment pursuant to the Mental Health Act is discussed.
In most circumstances, when someone is arrested for a criminal offence, there is a presumption that they will be released on bail pending their trial.
If people who were accused of criminal offences were routinely held in jail before having a trial, the presumption of innocence would have little practical meaning.
The right not to be denied bail without just cause is not only specified in the Criminal Code but is also a constitutional right.
The circumnutates in which someone can be kept in jail without having been found guilty of a criminal offence are where it is necessary to 1) ensure the person will attend court for their trial, 2) for the protection or safety of the public or 3) to maintain confidence in the administration of justice.
In most cases, when the police arrest someone, they decide it’s appropriate to release the suspect with whatever conditions they believe are appropriate to ensure the person will attend court and not pose a safety risk.
Common conditions would include things like reporting to a bail supervisor, not possessing weapons, not having contact with specified individuals, or attending to specified locations.
It is not lawful to hold someone in jail without a trial or to impose bail conditions for other reasons. Bail conditions, in a criminal case, cannot be imposed to punish an accused, to enforce the treatment of a mental health or addiction issue, or to encourage someone to plead guilty by making them wait in jail for a long time to have a trial.
Because the right to bail is constitutionally protected and central to the presumption of innocence, it is not subject to being changed into a mechanism to force people who are mentally ill or addicted to drugs to get treatment.
There is, however, an alternative system which is premised on helping people who suffer from mental illness and are a danger to themselves or others. This system operated pursuant to the BC Mental Health Act.
If a police officer believes someone is suffering from a mental disorder and is a danger to themselves or others, they can arrest the person and bring them to a hospital for treatment.
If a doctor concludes that someone is suffering from a mental disorder and requires supervision of care in a designated facility to protect the person or others, they can require them to remain for treatment for up to 48 hours.
If someone is to be kept longer than 48 hours, a second doctor must agree that involuntary treatment is necessary. With the approval of a second doctor, a patient can be kept for up to a month.
Beyond a month, there is a process to review the need for continued involuntary treatment. That involves a tribunal made up of a doctor or retired doctor, a lawyer, and a member of the public.
To work, however, the mental health system requires additional resources, including facilities to house and treat people who are determined to need involuntary, secure treatment.
Given the large number of homeless people who are suffering from mental illness and concurrent substance abuse disorders, additional resources of this kind would be much more effective than waiting for such people to commit a criminal offence and then trying to use the criminal bail system to keep them in jail before trial.