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In last week’s blog post, I covered the Centre for Addiction and Mental Health (CAMH) v Ontario,?2012 ONCA 342?(“CAMH”), a decision that has managed to intensify the debate on Ontario’s, and on a more sweeping scale, Canada’s policy on the treatment of the mentally ill in our justice system. Since then, my thoughts have turned to the core aspects of the ruling: the criminalization of the mentally ill, and the lack of mental health treatment facilities in Ontario. Both are pressing concerns that, when pitted against each other, force judges to pick one over the other. In CAMH, Justice Blair, writing for the majority, stated: “[n]obody wants to see a vulnerable, mentally ill person sent to jail when they should be in a hospital” (para. 62). Ultimately however, he ruled that the “consent requirement” of mental health facilities could not be overridden by mental health court judges, in their quest to ensure that patient-accuseds receive treatment as soon as possible, and without having to wait in jail. He also stated that the requirement did not run afoul of the Charter, as long as hospital administrators withheld their consent on reasonable grounds that were consistent with the principles of fundamental justice.

The obvious impact of the ruling is on mentally ill accused persons who are initially found unfit to stand trial, and must be given subsequent medical treatment to ensure their trial-readiness. As commentary points out, the fact that mentally ill persons can now be detained in jail before trial and treatment is a sorry testament to Ontario’s inability to solve an issue that has long been in focus. Given the situation, it seems that there was not much Justice Blair could do in the case; however, I argue that its potential to be misused can be sizeable, especially when the issue of social stigmatization of mentally ill offenders is considered. That the mentally ill are marginalized and pushed out of the public consciousness, and that the existing Canadian policy is in need of an overhaul that addresses the lack of diversity and access to justice, has already been acknowledged. However, what is less freely conceded is the fact that mental illness itself is still seen as an anomaly from the norm, and something that is still very much hidden from the public by sufferers, for fear of being cast as pariahs.

The issue becomes so much more complex when mentally ill persons are brought into the criminal justice system. It stretches beyond the usual benefit of the “innocent until proven guilty” adage to include the rights of personhood, which are enshrined in the Charter in Canada. But interestingly, even though diagnoses of ill mental health are on the rise, ?critiques point to the fact that it is the ‘normal’ that is being medicalized, and therefore, marginalized. The implication here seems to be that a mentally ill person cannot actually be simply a ‘normal’ person, leading to the strange consequence of the?spreading of stigma, instead of its alleviation. Hence, it cannot be surprising that the criminal justice system falls short of adequately protecting a mentally ill person who is accused of committing a crime. This might be because of the prevailing adherence to standardized and stereotypical perceptions of the needs of such a person. Quite simply, it might be a case of stuffing the square peg in the round hole – and then blaming the peg for being the misfit, without attempting to change the shape of the hole to better accommodate it. Mental health offenders then, could face two kinds of stigmatization: being mentally ill, and being perceived as “criminals” or wrongdoers, in spite of their guilt or innocence having yet to be proved. ?Not only would the combined effect be twice as harmful and debilitating to the accused’ s defense, it also seems as though the consent requirement might have further perpetuated these stereotypes in CAMH.

The Ontario Court of Appeal (ONCA) cited four main reasons as to why the consent requirement did not counter the accused’s s.7 rights in CAMH. These are cited as: (1) the general legal abhorrence to compel medical treatment when it is not desired; (2) the issuance of the consent requirement to ensure that patients would only be treated in facilities where there was adequate staff and facilities; (3) the assurance that mentally ill patients would be treated in facilities when they themselves were not deemed violent threats; (4) and the practice of finding forensic placements for accuseds who are deemed mentally unfit in courts (CAMH, paras. 51-57). Balancing these conditions against the interests of the public, it was found that the consent requirement was constitutional. Further, the Court held that treatment centres could not be compelled to accept accuseds “forthwith.” It was also deemed that the interests of an accused could not trump those of the public when the availability of resources is scarce (paras. 58-61).

While all of these reasons make compelling rationales for mental health public policy, they might also make a patient-accused even more vulnerable in the justice system. ?In fact, there is no reason not to think that the consent requirement could be used to extend the duration of a patient in jail, due to the scarcity of hospital resources. It might be quite likely that a person faced with the dual labels of “mentally ill” and “offender” would be forced to fight combined stigmatization from society. The necessity of hospital administrators’ consent to treat a mentally ill patient may add to his or her marginalization; by not being granted a bed and being sent to jail instead, the stigma of being mentally ill might be worsened because of the added implication of possible criminal liability, and vice versa.

While the state of the Canadian public mental health system has been discussed in recent months, there is much work to be done, especially with respect to funding and resource matters. In the context of the criminal justice system, it is important to underline the fact that mental health offenders cannot be treated like criminals before they are even given a chance to stand trial, and judges cannot be expected to find solutions to problems brought on by logistics. Awareness and education initiatives that open channels of discussion can help us tackle the question of social stigmatization. Only then will tools like the consent requirement have the most positive impact, when balancing the interests of the mentally accused versus those of society.

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