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Creating alternatives to the criminal justice system is key to reducing court delays

By Senator Kim Pate      

The inadequacy of social, economic and health programs have resulted in the use of the criminal system as a default response to issues that it is not designed to handle.

Marginalized individuals, contending with issues including prior victimization, impoverishment, homelessness, addictions, and disabling mental health issues too often end up criminalized and imprisoned, writes Independent Senator Kim Pate, who sits on the Senate Committee on Legal and Constitutional Affairs. Photograph courtesy of C.P.Storm
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Earlier this month, the Senate Committee on Legal and Constitutional Affairs, of which I am a member, released its final report on the topic of court delays, entitled Delaying Justice Is Denying Justice: An Urgent Need to Address Lengthy Court Delays in Canada.

The report refers to some ways that creating alternatives to the criminal justice system can reduce court delays. I believe that this crucial point must be emphasized as a centerpiece of any strategy for addressing delays.

The inadequacy of social, economic and health programs have resulted in the use of the criminal system as a default response to issues that it is not designed to handle. Marginalized individuals, contending with issues including prior victimization, impoverishment, homelessness, addictions, and disabling mental health issues too often end up criminalized and imprisoned. The criminal and penal systems are the most expensive and least effective way of dealing with the lack of social, economic, educational and health services and supports. Moreover, overloading the courts with such matters further strains resources and exacerbates delays within the criminal justice system.

To counter this trend, I encourage Canada to pursue the development of national standards and resource arrangements that would enhance the capacity of provinces and territories to fund community-based health—especially mental health, education and social services—as well as economic supports. Moves such as those undertaken in Ontario to pilot guaranteed livable income is a step in the right direction. More of these responses—and not merely as pilots, are required to both address and prevent further marginalization, victimization, criminalization, and institutionalization of our population, particularly indigenous peoples, and most especially Indigenous women.

Measures such as specialized courts or diversion programs constitute an incomplete response to this problem notably because they too often function as “add-ons,” expanding the reach and scope of the criminal justice system, without changing the underlying, default criminal-law response to these issues. As a result, individuals end up criminalized nonetheless, drawn into the already overcrowded criminal justice system, for behaviors that are recognized as issues that might better be assisted in health, mental health, educational, or other community-based social services.

A similar problem occurs with respect to reforms that aim to respond to high rates of addiction or mental health issues among prisoners, whether they are awaiting trial or jailed following a conviction. Prisons are not, and should not be accepted as, alternatives to hospitals or other types of treatment centres. Nor are they shelters for those who are homeless, impoverished, or fleeing violence. On the surface, attempts to improve prison-based services seem laudable. Regrettably, as revealed during successive investigations, inquiries and inquests, such efforts have repeatedly proved unsuccessful. Worse still, there is some evidence that they have contributed to increased overcrowding and increased numbers of prisoners with mental health issues.

Instead of responding to these needs ineffectively through a system that is not designed to meet them, attention must be directed to keeping such individuals out of the criminal justice system. And for those who are already in the system, we must do all we are able to get them out of the system. This is particularly true for those who, like Ashley Smith, can end up criminalized and imprisoned for relatively minor charges, but whose mental health issues and resulting behaviour cause them to be further criminalized as they are unable to negotiate a system that causes them to accumulate convictions and sentences.

Although shamefully restricted by policy and therefore too rarely used, the federal Corrections and Conditional Release Act contains mechanisms that would serve this purpose. For instance, section 29 allows prisoners with mental health issues or addictions to be transferred to provincial health institutions in order to receive treatment. For indigenous prisoners in particular, section 81 provides for communities to sponsor prisoners to serve sentences in the community. And, section 84 of the Act allows for communities to sponsor those who are conditionally released into the community.

There is an urgent need, as noted in the Committee’s report, for the federal government to follow through on its promise to implement the 94 Calls to Action of the Truth and Reconciliation Commission. The reality that women, particularly indigenous women and those with disabling mental health issues, are the fastest growing prison population in Canada necessitates such steps be made toward redressing and remedying the historical wrongs that have contributed this situation.

Rather than continuing to feed an overburdened and struggling criminal justice system, we can and we must reinvigorate and invest in the services and systems that will prevent the further marginalization, victimization, criminalization, and incarceration of Canadians. We can and must reinvest monies in economic, social, educational and health resources. The millions of dollars saved by closing prison cells can and should be used to ensure all are housed, fed and educated. Countries with the best social service, health and educational supports tend to have the highest standards of living and lowest crime rates. In Canada’s sesquicentennial, let’s set our sights higher for all.

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