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'Too many people are in jail that shouldn't be'

To overturn the criminal justice system's ongoing punishment of mentally ill offenders, reform – both inside and outside of the courtroom – is needed, a Yellowknife-based lawyer says.

"We continue to criminalize mental health issues," Paul Falvo, a criminal defence lawyer who has represented clients throughout the territory and Nunavut, wrote in an email.

"It would be rare to find the criminal offender without some degree of mental health issue," he stated.

The prevalence of mental illness within Canada's criminal justice system is well-documented. Thirty-six per cent of federal offenders, as noted in a 2012 report, required psychological assessment, with 45 per cent of male inmates and 69 per cent of female inmates receiving care for mental illnesses, according to the Centre of Addiction and Mental Health (CAMH).

Indigenous offenders are over-represented within the system, too. Adults only account for about 3 per cent of country's total population, yet they represent nearly 30 per cent of those incarcerated in provincial, territorial and federal facilities.

Between 2009 and 2010, 620 NWT residents were hospitalized for mental illness – roughly 1.5 per cent of the territory's population. The link between mental illness and substance abuse are also clear. Compared to the general population, people suffering from mental illnesses are twice as likely to abuse substances, CAMH states.

With Indigenous people making up more than half of NWT's total population, Indigenous over-representation in the criminal justice system is especially pronounced in the territory.

According to Falvo, the pervasiveness of mental health issues within the system is historically entrenched – and complicated.

"The reasons behind this are complex (and include) historical factors. We can't go back in time, but we can direct more resources towards prevention and treatment of the adverse effects of mental health issues," stated Falvo.
Along with structural changes, Falvo wrote, cultural shifts are needed, too.

"Greater awareness is needed in the justice system, including education of justice participants and the public."
"It would be good to see a de-emphasis of punishment and vengeance in the justice system and a focus on fostering public safety by rehabilitating offenders," Falvo stated.

Changes to the justice system – like the ones proposed by Falvo – are being mulled.

Since 2016, the federal government has undertaken a "broad examination of Canada's criminal justice system to ensure that it is just, compassionate and fair, and promotes a safe, peaceful and prosperous Canadian society." Between November 2017 and January of this year, the feds held a public consultation process, meeting with stakeholders across the country – including in Yellowknife – to look at reforms related to reducing the over-representation of vulnerable demographics and strengthening the "use and acceptance of restorative justice practices," among others, according the government's Transforming the Criminal Justice System website.

There's no mention, however, of the under-representation of Indigenous people in counselling and mental heath worker roles.

For Jeano Erasmus, a Dene Cree Yellowknife resident who helms alternative treatment service Dene Wellness Warriors, having representation is imperative in bringing about change in the way mental health is addressed in the justice system.

"It's so needed. Some of my clients are … incarcerated. When I go and see them there, they look at me and say, 'you get it. You know where I'm coming from. You understand.' I have family who were incarcerated. I lived in a home that was violent … so they can related to me. I can relate to them."

Brendan Burke/NNSL photo.
Jeano Erasmus, front, and her husband, Roy, both run alternative counseling services that deal with mental health, addictions and trauma. To overturn a pattern of mentally ill offenders going to jail – instead of rehabilitation – they say better access to services, traditional healing practices and more Indigenous representation in the mental health field are needed.

Jeano's husband, Roy Erasmus, is a non-practicing lawyer and runs a counselling service for men who have used violence in their relationships. He told Yellowknifer a lack of access to crucial services steers the mentally ill into the system and away from rehabilitation.

"There's a lot of barriers," Roy said. "The territorial government should have a system worked out with the federal government so that people can receive counselling and have access to other programs … rather than just throwing them in jail."

"Too many people are in jail that shouldn't be," said Roy.

'Hurt people hurt people'

Jeano, who sees mental illness, substance abuse and homelessness as symptoms of underlying inter-generational trauma, said at the core of these issues lies "hurt and pain."

"Hurt people hurt people," she said.

To keep sufferers in good health, and out of jail, Jeano points to traditional practices as an important piece of the puzzle, including "using the drum as a healing tool."

"We go to our traditional, our cultural base and it heals. It heals the heart."

Citing the Arctic Indigenous Wellness Foundation's recent Arctic Inspiration Prize of $1 million, Jeano, a board member of the foundation herself, said the win is a promising step in the road to healing.

"When I see what the foundation is doing in providing an alternative to mainstream services for mental health – this is what we're needing, absolutely needing."

There are diversion programs within the territory. Wellness Court is a judicially-supervised court program that offers offenders struggling with mental health and addictions issues an alternative to jail. Eligible offenders who "want to make a positive change in their lives," enter into a wellness program and plan – designed for the unique needs of the offender – which is overseen by a case manager and reviewed by a judge regularly, according to the NWT Courts website.

Despite the alternative route provided by Wellness Court, only people who have committed crimes in Yellowknife are able to participate.

In an email, the GNWT department of justice communications manager, Sue Glowach, stated reform could be on the horizon.

“We expect over the next several years there will be changes coming forward in the national criminal system for the Criminal Code, consideration for judges to be given more latitude and perhaps the elimination of a range of mandatory sentences.”

“We're in the early days of exploring the potential to employing a specific Therapeutic Community model to help inmates to reach therapeutic goals,” Glowach wrote, adding the government is still “years away” from implementing such practices in the territory.

'People are warehoused'

Among the areas being explored by the Trudeau-led government in its bid to reform the criminal justice system are trial delays and inefficiencies with court proceedings.

For Paul Falvo, change couldn't come sooner.

"One concrete measure that could be implemented immediately would be the assessment and treatment of prisoners (awaiting trial). I am aware of a person in Yellowknife with apparent mental health issues who has been sitting on remand … for months awaiting trial with no intervening treatment and assistance," he wrote.

"I am not aware of empirical evidence showing that jail makes people turn good. Often people are warehoused."