Specialized Courts - a reflection on practices

by J Mann

The Canadian criminal justice system has historically functioned in a traditional manner that emphasizes the need for punishment in the form of incarceration. While this approach works to deter some individuals, for others, it is unrealistic and the courts act as a revolving door. To effectively navigate the diverse backgrounds that enter the criminal justice system, it is crucial to pivot from the ‘one size fits all’ model and find ways to rehabilitate individuals based on their unique needs. Moving away from the adversarial system that is unable to adequately deal with all underlying factors that lead to criminal behaviour, the Canadian courts have implemented specialized courts that can better address the causes of recidivism. These courts are known interchangeably as rehabilitative courts, problem solving courts and alternative courts.

The 1996 Sentencing Revisions to the Criminal Code, along with judicial interpretation at the Supreme Court of Canada started the shift towards alternative court systems. Based on the principle of Therapeutic Jurisprudence, cases such as R. v. Proulx and R. v. Gladue became precedent-setting case law for pc courts. In understanding that the most vulnerable people in our society were unlikely to successfully navigate the justice system, specialized courts became favourable for certain individuals. The introduction of Indigenous, mental health, drug treatment, domestic and Fetal Alcohol Spectrum Disorder (“FASD”) courts became a much better pathway for rehabilitating accused and offenders. Such courts can be described as:

The growth in problem solving courts in Canada, and indeed, across North America, is testament to a new way of thinking when it comes to the role of our courts in a democratic society. As opposed to the criminal court process being the "end of the road" for an accused person, the court process now offers an accused person the opportunity for a new beginning by hopefully and finally addressing the issues that have led to his or her involvement in criminal activity. In some Canadian and American jurisdictions, courts have developed and implemented community courts which recognize and address the often integrated or connected issues that an accused person may present - mental health issues, drug addictions, homelessness. Community courts also ensure that accused or offenders make reparation to the community for the harm caused by their offending behaviour.[1]

The foundation of these courts is centred around collaboration. Instead of the different agencies working against each other -  police, defence, crown and others work together to find a remedy that best addresses the root causes of the criminal behaviour.[2] In taking a multi-disciplinary approach to these issues, different professionals are able to offer their expertise in formulating the most productive treatment plan while simultaneously keeping society safe.[3] Having court-ordered access to different care teams increases the chance that such resources are utilized. Judicial monitoring and supervision help to ensure that individuals are held accountable and follow through with their rehabilitation plan.[4] This approach can be understood by applying diagnostic adjudication:

[a]s the name suggests, diagnostic adjudication is largely devoted to determining the cause of a problem and devising the proper treatment to eliminate it, or mitigate its most damaging effects. ... In diagnostic adjudication neither the law nor the facts are necessarily dispositive; more important may be a reaching of agreement on how to reclaim a juvenile or restore a family. Findings of guilt or fault may be irrelevant, and disposition of the case decidedly secondary to securing a socially desirable result.[5]

Manitoba Specialized Courts

Specialized courts differ from province to province, and in this blog, we will be discussing Manitoba. In Manitoba, there is a mental health, drug treatment and domestic violence court available to those who meet the criteria. Accused who finds themself in a situation where their criminal actions are a result of an underlying mental health condition, drug addiction or domestic abuse may be eligible to participate in these rehabilitative processes. Additionally, while Manitoba does not have any Indigenous courts, there will be an examination of provincial initiatives and Gladue courts in other provinces. The reforms in Manitoba’s criminal justice system are indicative of a shift from the traditional adversarial system. In addressing access to justice, Former Chief Judge Champagne and Chief Judge Wyant were instrumental in the implementation of problem solving courts in Manitoba. Judge Champagne describes problem-solving courts as "trying to deal with society's problems and issues through the back end." He indicates that these courts aim to address "the underlying issues that have caused the person to become involved in a conflict with the law."[6]

The Winnipeg Mental Health Court, also known as MHC, sits weekly in provincial court. To determine whether someone is eligible for mental health court, the MHC Crown will review the file in question and decide if it is a suitable option.[7] Most commonly, this court is used to aid those with severe and persistent psychiatric illnesses such as Schizophrenia. If the Crown believes the accused is a candidate for mental health court, various paperwork is filled out and the Forensic Assertive Community Treatment (FACT) team has an opportunity to examine the case.[8] Upon entering the program, guilty pleas are entered as the accused accepts responsibility for their actions and commits to a path towards healing. The program typically runs anywhere between eighteen and twenty-four months and requires the individual to attend court and seek the treatment recommended by the team. Once the program is successfully completed, the charges will be stayed and will not appear on a criminal record.[9] 

Similarly, the Winnipeg Drug Treatment Court (DTC) is an option available to offenders who were under the influence of drugs at the time of the offence and were otherwise dependent on those drugs. Offences under the Controlled Drugs and Substance Act and other non-violent Criminal Code offences meet the criteria for admission.[10] This client-centred approach shares the same screening process as MHC and requires guilty pleas to be entered before entering into the program. The goal here is to break the cycle of drug use and get offenders back on their feet. Upon completion, the individual will serve a community-based sentence.[11]

The Thompson Domestic Violence Court is the only court of this nature in Manitoba. Anyone who wants to participate in this program is referred to Thompson where they must accept responsibility at the first appearance. If they do not admit to the offence at this time, the matter is remanded back to the regular courts.[12] Once in the program, male offenders are referred to Men Are Part of the Solution (MAPS) and female offenders to the Manitoba Métis Federation. After successful completion, the matter is referred back to the domestic violence court for disposition.[13]

The use of MHC, DTC and Domestic Violence Courts in Manitoba indicates a movement in the right direction. The province, however, is lacking in any formal Indigenous courts. Provinces such as Alberta, British Columbia and Ontario offer several Indigenous courts, some known as Gladue courts. While Manitoba does offer some Indigenous sentencing options such as sentencing circles - this seems to be reserved for communities and is less commonly implemented in Winnipeg.

There is no doubt that our criminal justice system is made up of vulnerable people who are then further marginalized by an adversarial system. And, while specialized courts signal a new understanding of punishment, there are several issues with these courts. In the next three blog posts, I will aim to uncover empirical research into the success of the courts, difficulties being accepted into the programs and why Manitoba does not have its own Indigenous courts.

Bibliography

Sherry L Van de Veen, Some Canadian Problem Solving Court Processes, 2004 83-1 Canadian Bar Review 91, 2004 CanLIIDocs 123, <https://canlii.ca/t/2cjc>, retrieved on 2023-10-15.

Special Issue: Underneath the Golden Boy Enhancing Access to Justice: Some Recent Progress in Manitoba, (2013) 36:2 Man LJ 201 - 223.

Provincial Court of Manitoba, Annual Report 2009-2010, online: Manitoba Courts <www.manitobacourts.mb.ca/pdf/annual_report_2009-2010.pdf>.

Cornelius M Kerwin, Thomas Henderson & Carl Baar, "Adjudicatory Processes and the Organization of Trial Courts" (1986) 70:2 Judicature 99.

Matthew W Logan & Nathan W Link, "Taking Stock of Drug Courts: Do They Work?" (2019) 14:3 Victims & Offenders 283 at 289-90; Leticia Gutierrez, Julie Blais, & Guy Bourgon, "Do Domestic Violence Courts Work? A Meta-Analytic Review Examining Treatment and Study Quality" (2016) 17:2 Justice Research & Policy 75.

Mental Health Court (April 2019), online: Manitoba Provincial Court <https://www.manitobacourts.mb.ca/provincial-court/problem-solving-courts/mental-health-court/>.

Drug Treatment Court (July 2023), online: Manitoba Provincial Courts <https://www.manitobacourts.mb.ca/provincial-court/problem-solving-courts/drug-treatment-court/>.

Footnotes

[1] Provincial Court of Manitoba, Annual Report 2009-2010, at 19, online: Manitoba Courts <www.manitobacourts.mb.ca/pdf/annual_report_2009-2010.pdf>.

[2] Sherry L Van de Veen, Some Canadian Problem Solving Court Processes, 2004 83-1 Canadian Bar Review 91,   2004 CanLIIDocs 123, <https://canlii.ca/t/2cjc>, retrieved on 2023-10-15

[3] Ibid,

[4] Ibid.

[5] Cornelius M Kerwin, Thomas Henderson & Carl Baar, "Adjudicatory Processes and the Organization of Trial Courts" (1986) 70:2 Judicature 99 at 100.

[6] Special Issue: Underneath the Golden Boy Enhancing Access to Justice: Some Recent Progress in Manitoba, (2013) 36:2 Man LJ 201 - 223 at para 15.

[7] Mental Health Court (April 2019), online: Manitoba Provincial Court <https://www.manitobacourts.mb.ca/provincial-court/problem-solving-courts/mental-health-court/>.

[8]Ibid. 

[9] Ibid.

[10]Drug Treatment Court (July 2023), online: Manitoba Provincial Courts <https://www.manitobacourts.mb.ca/provincial-court/problem-solving-courts/drug-treatment-court/>.

[11] Ibid.

[12] Domestic Violence Court (November 2020), online: Manitoba Provincial Courts <https://www.manitobacourts.mb.ca/provincial-court/problem-solving-courts/thompson-domestic-violence-court/>.

[13]Ibid.