The figures are disturbing. Barely five per cent of individuals facing a motion ordering their psychiatric confinement were represented by a lawyer before the Court of Quebec in the small town of Alma in the Saguenay–Lac-Saint-Jean region. In neigbouring Chicoutimi, the figures over a ten-year stretch between 1998 and 2008 were just as appalling. The situation was not much better in Montreal, with less than 25 per cent of individuals facing the same fate even present at such hearings, and of those scarcely half had legal representation.

Spurred by the wrongful conviction of an intellectually disabled Quebec City man who served six years in prison after confessing to a series of sexual assaults that a DNA test proved he did not commit, a sober report penned by a nine-member committee of the Barreau du Québec issued a slew of recommendations to improve the way the provincial justice system deals with people afflicted with mental illness or suffering from intellectual disabilities.

“We must absolutely find ways to treat people with mental illness or the intellectually handicapped just like every other citizen,” remarked Jean-Pierre Ménard, a Montreal lawyer specializing in health and medical liability who was part of the committee. “People who are afflicted with mental health problems face atypical legal procedures that infringe fundamental rights. So it is unacceptable that the justice system allows these people to be treated without the right to defend their rights.”

Established four years ago, the committee called for few legislative changes in the civil and criminal justice system, emphasizing rather the need to apply legislation already in the books more rigorously, bolster training for lawyers and judges alike over the challenges dealing with the mentally ill, and calling on the educational system to offer courses on law and psychiatry.

While the criminal justice system has less obstacles to surmount, the committee nevertheless urged police to videotape statements given by an accused with mental health problems. Echoing the observations of several authors who have written about videotaping, the committee points out that written reports taken during an interrogation, accurate as they may be, cannot accurately replicate either the tone of the remarks made by the suspect nor their body language. Though stressing that interrogations that are not videotaped are not “intrinsically suspect,” the 26-page report does emphasize that the existence of a videotape statement can “greatly help” a judge appreciate the evidence emanating from a confession.

Lucie Joncas, a Montreal criminal lawyer and a member of the committee, takes it even further, asserting that videotaping records a person’s state of mind at the time the accused is being interrogated, assist experts to determine the mental health of the accused, can help avoid unwarranted convictions, and under certain circumstances raise questions over the admissibility of evidence. Besides, she adds, the technology is readily available and is inexpensive.

“This is one of the recommendations that I take to heart,” admitted Joncas. “A person’s state of mind can fluctuate over time, and at the time of trial it can be very difficult to prove the person’s state at the time of his arrest. With videotaping, all parties are protected.”

After speaking with a number of experts, the committee also found that it is taking far too much to determine whether an accused is fit to stand trial, mainly due to lack of resources. Under s.672.14 of the Criminal Code, assessments should take place within five days, unless the accused and the prosecutor agree to a longer period not exceeding thirty days. Further, Joncas points out that the Criminal Code was amended nearly two decades ago to allow for assessments to be conducted outside the prison setting. As it stands, though, assessments in most of corners of Quebec usually take weeks and are usually conducted while the accused is incarcerated. That’s why the Barreau’s committee recommends a “vigorous application” of s.672.14 as well as the development of a mechanism that would allow an accused to appear before the court as soon as practicable after the assessment is completed, as per s. 672.191 of the Criminal Code.

“We need to look at the bigger picture and realize that it will be far more cost-effective in the long run if assessments were done in five days,” said Joncas.

The challenges facing the civil justice system are far more daunting, if only because a mentally ill person can wind up being before several different courts to grapple with the issue of psychiatric assessment and confinement . As was noted by a report penned by a committee of the Court of Quebec and underscored by the Barreau’s committee, Superior Court has the jurisdiction to authorize treatment, the Court of Quebec to order assessment and confinement, and the Administrative Tribunal of Québec to hear appeals of assessment and confinement orders issued by the Court of Quebec.

The committee, however, rejects the notion that a separate but parallel justice system should be established to deal with the mentally ill. Besides constitutional barriers, the committee fears that such an approach would end up generating more stigma to the mentally ill and heighten perceptions that they are treated differently. Instead the committee calls for a “pragmatic approach” that would examine the procedures already in place to standardize the ways that the different courts deal with the mentally ill.

“We want to avoid stigmatization,” said Ménard. “Instead we need to standardize procedures and ensure that their rights are respected. At present, the mentally ill do not have access to justice, are not represented, and are not informed of their rights.”

Encouraging lawyers to take on such cases is one thing that the Barreau intends to do, even though Ménard is the first to admit that it will be difficult because it is tough work that is poorly remunerated. “If I only practiced mental health, our firm would not survive because legal aid pays a pittance,” said Ménard.

The Barreau also hopes to encourage faculties of law across the province to offer courses on the subject of the law and the mentally ill as not much is offered now. McGill University’s faculty of law has an undergraduate course, and the Université of Sherbrooke has a graduate course taught by Ménard. Hoping to lead by example, the Barreau has put together a handbook for lawyers on legal issues facing the “vulnerable,” and Ménard is in the midst of developing a continuing education program designed to acquaint lawyers with the plethora of laws that deal with the mentally ill “because they are poorly understood by lawyers.”