Pubdate: Mon, 07 Mar 2016
Source: Toronto Star (CN ON)
Copyright: 2016 The Toronto Star
Contact:  http://www.thestar.com/
Details: http://www.mapinc.org/media/456
Author: Joe Fiorito
Page: GT2

DIVERSIONARY COURTS KEEP OUR EYE ON JUSTICE

The three graces of our justice system are Drug Treatment Court,
Gladue Court and Mental Health Court; they are diversionary courts.
Diversionary? The small repeated crimes of a drug addict are better
addressed with a chance at redemption than with strict punishment;
aboriginal offenders are best served in law when we understand the
generational effects of 400 years of colonial oppression; finally, and
most simply, the crimes of the mentally ill are complicated by the
intent of the offender.

And so, after a tour of the courts in the company of Justice Maryka
Omatsu, I had lunch with several of the judges who routinely work in
diversion - an out of body experience in some ways, since I was born
guilty, I have achieved guilt and at times I have had guilt thrust
upon me. The judges were thoughtful, alert, reserved and kind.

Of the cases that come before her, Justice Beverly Brown said, "I
don't have people who have only mental illness; some have drug and
alcohol problems; some have brain injuries or Alzheimer's."

Justice Mara Greene said, "We don't work in a vacuum; one day we're in
Mental Health Court, the next day we move over to Drug Treatment Court."

Justice Brown said, "In Mental Health Court, you don't have to enter a
plea. The diversion? You connect them with housing, with a physician.
It happens without admitting guilt. At the end, if we're successful,
there are no charges." She reminded me of the reason:

"There is a mental element, mens rea; if we find that someone is not
criminally responsible, we don't punish them because they don't have
the mind."

It is, at times, tricky work. She said, "Sometimes a person has the
mental element one day and not another. Some conditions arise from an
imbalance in the brain or body; sometimes there are drugs, but drugs
don't always work."

Justice Shaun Nakatsuru made a quiet observation: "These are not just
the accused who are brought in; these are people with family and
friends, with histories and background, your neighbours; whether
they're living on the street or next door, they're not faceless."

Justice Brown sort of sighed and said, "If you can't get at the root
of the problem, how can you create long-term success?" And that
question nails the intent of diversionary courts; to make sure the
point stayed nailed, she said: "If someone is off their meds and you
sentence them to jail, there's nothing there to assist them. If they
haven't gone back to their meds, if they don't have housing, there's
the stress of living on the street; if people had housing . . ." A
wistful thought, that.

Justice Greene said, "So many offenders - especially in Gladue Court -
are victims themselves; when we start to understand that cycle -
you're both an offender and a victim - it changes the perspective." I
never thought I'd say I love a judge.

Do these judges get special education in the particular issues of
substance abuse, of colonial history and of mental illness? Justice
Nakatsuru said, "Every judge has an obligation not only to learn
through conferences and reading, but to put yourself in the shoes of
the person."

I was curious: both Justice Nakatsuru and Justice Omatsu are
Japanese-Canadian; they are from families who lost property and were
interned during the Second World War; does that personal experience
give them a leg up in terms of experience and understanding?

Justice Nakatsuru said, "Every one of us has something in our
background that opens us up to the understanding of some of the issues."

And then he added a qualification: "You can't be swayed by your
emotions, but you have your own experience." His experience? "We had
farmland. It was confiscated. We ended up as labourers in Alberta,
then farmers."

And Justice Omatsu said, "I think aboriginal people recognize there is
something between them and Japanese people. I was employed by
aboriginal people before they had their own lawyers."

Yes, and I don't know anyone who has not had some experience in their
own families with the problems of alcohol or drug abuse or mental illness.

But here, I should add that these courts are not an additional burden
on the system; all of the cases that come before them would require
some sort of judgment. Alas, there are waiting lists. Waiting is done
in jail. There is no help in jail.

I asked the judges if these courts should be funded more amply. All
seven of them rolled their eyes, as if I'd asked the most leading of
all possible questions.

If it pleases the court, I offer an observation.

Were we intelligent in our drug policy, there would be fewer
drug-related offences; were we smarter about harm reduction, there
would be fewer crimes; had we better social housing, we would not see
our neighbours abandoned to the streets; and if we provided proper
supports and assisted living for the mentally ill - as was promised so
many year ago - all our lives would be better.

And so these courts are the last bastion of compassion in a hard
world. But we would need them less if we cared more about the world
around us.

I heard no objections.
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MAP posted-by: Matt