A small group of British Columbians trapped in a cycle of mental illness, addiction and repeating criminal behaviour are endangering public safety in communities across B.C. When Premier David Eby was Attorney General he said these individuals needed treatment, but would have to be compelled to do so. The quandary of mandatory care explores the ethics, effectiveness and potential applications of compulsory care for repeat offenders. It’s the final part of the series, If not prison, then where?
“The population of every land may be presumed to contain a small section composed of people whose behaviour is so undesirable from the social point of view that they require segregation for a greater or lesser period of their lives. Such people have to be confined, if necessary, against their wishes, to safeguard the interests of the rest of the community.”Lionel Sharples Penrose [British Journal of Medical Psychology, 1939]
By nearly every measure, Derrick Forsyth was an unlikely candidate for turning his life around.
At 41 years-old, he’d racked up 85 criminal convictions and seen the inside of 30-plus provincial and federal prisons. Addicted to drugs and alcohol from a young age, most of his crimes were fuelled by a need for substances. “I was one of those guys, you let me out, I’m going to steal.”
He’d tried many programs over the years to get control of his addictions.
Instead, he’d spent half his adult life incarcerated.
“Ninety-eight per cent of the inmates … never really had freedom before they went into jail. They’ve always been locked up with their drug addiction, their alcoholism, their criminal lifestyle, stuck in the same little town, never went on a vacation, never really lived life at all,” he said.
Then, the last time Forsyth went to prison, something akin to a miracle happened.
He was diagnosed with a brain injury and moved to the medical wing of the correctional facility. Prescribed methadone, he spent the next year doing cognitive, behavioural, occupational and psychological therapy.
With nine months to go before his release, fortune smiled on him again – he was transferred to a lower security facility on Vancouver Island where a local brain injury association reached out, eventually bridging him into a three-year, supported-living residential program in the community.
Ten sober years later
Ten years and thousands of 12-step meetings later, Forsyth detoxed off methadone, remained sober, is living on his own, exercising regularly and working part-time as a support worker for the non-profit group that helped him with his own recovery.
“The only thing that got me sober was I had the proper support at the right time,” said Forsyth, who says mandatory treatment for people stuck on drugs in a cycle of criminality is the right move for the individuals and for society.
“You’ve got to lock the person up and say, ‘Do you want to get out? We’re going to let you out, but you’ve got to go to a recovery house.’ Then the guy’s going to be more willing to get help.”
Not everyone will stay sober, he says. “But that whole year he’s in therapy, he’s going to learn something, whether he wants to or not.”
Forsyth would know. Compelled treatment saved his life. It engaged him in medically-supervised treatment and genuine rehabilitation of the underlying causes of his recidivism – the first step on his long road to recovery.
He worked hard, but so much of his success fell to chance. Unlike so many others, Forsyth found support in the community after his release from jail. A series of non-profit organizations helped him navigate the gaping sinkholes of B.C.’s addictions and brain injury treatment landscape, until he connected with a remarkable group that supported him, at a pace he could sustain, to reach independence.
What seems an obvious solution to Forsyth – mandatory treatment – is a political minefield for elected officials, as Premier David Eby and his predecessor John Horgan can attest.
Balancing the rights of the individual versus the rights of the many is tricky. And navigating the ethics of when, why and how “the state” should be allowed to intervene in a person’s life, is anything but straightforward. Yet, as addictions, homelessness and crime converge and proliferate to socially untenable levels in cities across B.C., compulsory treatment has emerged as a necessary option for individuals whose incorrigible criminal behaviour jeopardizes public safety.
A fact Eby conceded when he was Attorney General last spring. Most “prolific offenders” grappling with mental illness and addictions needed treatment, but wouldn’t voluntarily access it.
“Whatever we come up with, is going to have to have some element of compulsion to it,” he said.
The admission was revelatory and inflammatory. Critics denounced mandatory treatment as an ineffective, ethical outrage. Others congratulated Eby, referencing the successes of compulsory treatment and said he was “kickstarting a valuable conversation.”
So which is it?
What is humane
“It’s a fundamental question of where we, as a society come down on human rights,” said Kevin Westell, a Vancouver criminal defence lawyer, who also works as a public prosecutor in federal and provincial courts.
“Is it more just to take a person that is struggling in that way and to force them into treatment against their will? Or is it more humane to say, ‘None of what you did is your fault. You are, in terms of your offending, the result of things beyond your control. We feel badly for you, and for that reason, we’re going to leave you alone.’
“Society is really struggling with those two poles,” Westell said.
One of the reasons psychiatrists are reluctant to institutionalize individuals under the Mental Health Act is because they have conceptions of human agency “which I think they would have a hard time explaining to many people,” said Geoff Plant, a litigation lawyer and former B.C. Attorney General.
“Many people would say, ‘That’s a person who is in the prison of drug addiction. Put them somewhere where we can fix that.’ And [psychiatrists] will say, ‘No, that’s an autonomous human agent making choices, capable of making choices. They’re bad choices, maybe, but they are his or her choices. I’m not going to lock them up in a room in a straitjacket.’”
But there’s a difference between the social implications of the person who says they want to sleep on the street, compared to the person who is stealing to pay for their addictions, Plant said.
Where is the line between caring about someone making bad choices for themselves with minimal effects on others, versus someone making bad decisions for themselves – like criminal behaviour – which have serious implications for other people? he asked.
“We’re not really equipped to answer those fundamental questions,” Plant said.
“What do we collectively do to take care of people in our society?” asked BC Green Leader Sonia Furstenau.
“We should have the expectation that when people are committing crimes, there is a system that responds to that appropriately. We should also have the expectation, when it comes to mental health and addictions, that there are voluntary, regulated – can I really emphasize regulated? – treatment systems available to people.”
Instead, many people trapped in severe addiction, mental illness and repeating criminal behaviour are neither treated, nor incarcerated.
“You’re kind of on your own in this realm, generally speaking. And that’s the piece that I think needs to shift,” said Furstenau.
‘Capital punishment through neglect’
“We have tipped the scales the wrong way, the balance is off kilter,” said Nanaimo mayor Leonard Krog, a lawyer who previously served for 17 years as a BC NDP MLA.
“The desire to preserve human rights, so to speak, has trumped unreasonably I think the most basic right of all, which is to live with some degree of health, mental and physical. What we’re really doing [is] enabling people – by not intervening – to live these horrible lives.
“It is, I believe, wrong,” Krog said. “People are living in hell on the streets and in far too many cases making it hell for others.”
Krog referenced the man in Nanaimo who threw a brick at a toddler and hit the child’s pregnant mother, sending her to hospital.
“There is a portion of our street population in particular, who in any other circumstance and in any other place in the world, would be in secure, involuntary care,” said Krog. Instead, they are being left to die on the street in what he called “capital punishment through neglect.”
“There is a perspective that is legitimate that could argue we have over-expanded the concept of human agency in a way that limits our ability to respond,” said Plant. But the topic is difficult for politicians to talk about as long as any aspect of the social safety net is lacking, which it always is.
“It’s partly why the Riverviews of the world were closed. We, as a society, thought that imprisoning people because they were ill – which is what secure care amounts to – is somehow unjust,” Plant said.
“I don’t want to discount the social harm caused by antisocial behavior. You can’t dismiss that at all,” he said. “But the answer is obviously more complex than ‘So let’s catch them and put them in jail.’”
Mayors call for action
In April, mayors across B.C. reached their limits with escalating crime and public disorder in their inner cities, petitioning the provincial government to deal with the repeated “catch and release” of offenders back into the community.
A coalition of mayors representing 55 per cent of B.C.’s population, wrote to then-Attorney General Eby about the 200-plus people responsible for almost 12,000 negative police interactions in 10 of their cities. According to the mayors, prolific offenders were causing a disproportionate impact on community safety; even when police recommended charges, individuals were either not charged or were quickly released on bail, often without conditions.
Several Supreme Court of Canada rulings and 2019 Criminal Code amendments direct the justice system, as a default, to not unduly detain, charge, restrict through conditions, or prosecute individuals who are marginalized because of race, poverty, mental illness, addictions, or homelessness. Essentially, Canadian courts are instructed by law to keep certain disadvantaged individuals out of the correctional system.
As a result, there are individuals with hundreds of police interactions and dozens of convictions, who have served very little, or no, time in jail.
“With prolific offenders, you’re giving a message to other people … that it is okay to do crime. It is okay to steal,” the long-time former mayor of Terrace, Carol Leclerc said in an April interview. “Because there’s no harm in it. There’s no consequence, no repercussions.”
In Terrace last spring, two individuals were responsible, collectively, for 47 of the fail to appear court breaches.
“Many people feel like it’s becoming a lawless state,” Leclerc said.
Bail or any conditions of bail recommended by Crown counsel must only relate to ensuring the person shows up in court; protecting the safety of the public and maintaining public confidence in the administration of justice. Many charges are not applied because Crown counsel – as directed by the federal Criminal Code – determines charges are “not in the public interest.”
Terrace city council asked the province to rethink the definition of public interest.
“Once you’ve got 200 charges laid against you, seriously, you shouldn’t be out on the street,” said former Williams Lake mayor Walt Cobb.
If the system doesn’t want them in jail, then something else has to be done, Cobb said.
“Because if they’ve been in the system 200 times, they either need some kind of help, or you’re never going to be able to help them. And that needs to be determined. Either get them the help they need or keep them locked up, because they’re a menace to society.”
In Vancouver alone, an average of four people a day are victims of violent random attacks.
‘We’re at a crisis’
“The safety in a lot of communities has slipped; some more than others,” said former RCMP assistant commissioner Eric Stubbs, who was the criminal operations officer for the B.C. RCMP, overseeing emergency response, the dog and bomb squads, West Coast marine, highway patrol, 125 detachments, First Nations policing and more. (Stubbs began as chief of the Ottawa Police Department on Nov. 17.)
“There’s some areas that are very difficult to manage for the police, and very difficult for those community members to live in,” said Stubbs in an interview this fall.
“If you have a prolific offender who is really affecting negatively the community, we have to do something don’t we?” said Stubbs. In some cases, one person is creating 10 to 20 victims a day because of theft, accosting or assaulting people on the street, dealing opioids, or killing people, he said.
Citizens rightfully look to the police to help them. “But we can’t do this alone, because it’s not just a few communities. It’s across the province, across the country,” said Stubbs.
“And we’re at a point right now, where we’re at a crisis.”
Mayors call for stricter consequences
The mayors suggested stricter consequences for repeat property offenders, more community courts, more public prosecutors, and a review of charge assessment guidelines, among other possible measures to maintain “public confidence in the administration of justice.”
In response, Eby and provincial Public Safety Minister Mike Farnworth commissioned an independent investigation on how to “interrupt the behaviours” of prolific offenders.
“Our compassion and concern and interaction on mental health and addiction can’t cloud the fact that we need communities to be safe,” Eby said. “Certain behaviours are unacceptable and we need to address them.”
“Compulsory programs” were on the table.
Coerced treatment works
In September, independent Vancouver criminologist Dr. Amanda Butler and co-investigator, former Vancouver deputy police chief Doug LePard, released their repeat offending report, along with 28 recommendations and a fairly damning sketch of the shortfalls in the healthcare, mental health and criminal justice systems.
Absent from the report is the word “mandatory” but it does recommend the creation of three new health models in which treatment could be compelled: “low-secured units” for people at risk of violence who need long-term treatment in a secured setting; “stabilization” drop-off locations for people who could be apprehended under the Mental Health Act who might otherwise be brought to a hospital for a psychiatric assessment; and an expansion of units providing mental health and substance use care in correctional centres.
Butler, whose own research concentrates on the intersection of mental health and the criminal justice system, said there are two types of compulsory treatment in B.C. today – involuntary and coerced – and it’s important to differentiate between two.
Despite allegations otherwise, there is strong evidence legally coerced treatment reduces recidivism and substance use, Butler said.
(Although, how much the poor outcome of involuntary treatment has to do with the limited length of stays and inconsistent quality of care, needs more research.)
Involuntary treatment, or Non-Voluntary Commitment, as it’s known, occurs when a person is forcibly “committed” to enter treatment under the Mental Health Act, usually in a hospital psychiatric ward or health facility.
Generally speaking, a person can be committed to secure care if they suffer from a mental disorder that seriously impairs their ability to react appropriately to their environment or others; if they require psychiatric treatment, supervision and control to prevent substantial mental or physical deterioration; or to protect themselves or others from harm.
Mental health apprehensions ‘climbing’
In the last several years, apprehensions under the Mental Health Act have been “climbing and climbing and climbing,” said the RCMP’s Stubbs.
Categorized as emotionally disturbed, people are usually picked up by police and brought to hospital for evaluation. In some cases, the doctor knows enough to apprehend them, the RCMP’s Stubbs said. But patients often know what to say to not be detained, so the health care system is forced to release them.
The strain on smaller community hospitals with limited, or no, psychiatric or addictions services capacity is significant. In Terrace for example, there are 10 acute care “crisis” beds to serve patients across the entire Northwest.
Add to that, the Butler-LePard report found the number of people “presenting with methamphetamine-induced psychosis has ‘skyrocketed’ in emergency departments across B.C.,” noting the use of methamphetamines as “an exacerbating factor” associated with an “increased risk of violence.”
Coerced care refers to treatment people agree to under pressure. Often the coercion is informal, from family, friends, or employers who urge someone into treatment.
“People are coerced into treatment all the time,” said Butler.
Legal coercion is formal, like when a person facing prison is given the choice to do treatment instead.
Currently, legal coercion is employed at bail and sentencing, but it doesn’t work very well, Butler said.
A person could be granted bail or avoid jail based on their agreement to participate in treatment for instance. Then, once released, just not comply, and face no penalization. Previous case law dictates a person on probation can’t be forced to participate in treatment, even if they were legally ordered to do so.
“Ultimately, that person still needs to consent,” said Butler. Which is where legal coercion comes in, motivating people to voluntarily comply by making the alternative unattractive.”
When a person breaks their conditions – sometimes because there are inadequate supports to help them succeed – their probation or parole officer files a notice of the breach. But it can take months to be heard in court and often, Crown counsel will choose not to proceed, deeming it not in the public interest.
“The law can be a very effective tool to incentivize,” said Butler. “But only if the right supports are in place. [And] at the same time, there has to actually be enforcement of the consequences. And that’s not happening in B.C.”
B.C.’s “safer communities” strategy
Public safety was on Eby’s mind when, barely 48 hours on the job as B.C.’s new premier, he announced his “safer communities” platform on Nov.20.
The strategy has two tracks: “zero tolerance for violence” enforcement and “breaking the cycle” interventions. It relies on a beefed-up mental health crisis response, special prolific offender teams of probation officers, police and public prosecutors, and a new policy directive for Crown counsel aimed at “removing any ambiguity” as to what’s in the public interest “to make sure that violent offenders are not released back into the community until they’ve stood trial,” Eby said.
“There’s no question violent criminals should be kept in jail. Like, I don’t even know how this is even a conversation to be had,” said Terrace mayor Sean Bujtas.
“[But] what about the prolific thieves? What about the people who are continuing to break into buildings and destroy property? Because these folks are terrorizing communities as well, it’s not just violent criminals,” he said.
Some individuals are damaging property and stealing almost non-stop with “no regard to the community whatsoever,” said Bujtas.
“Most criminals have some kind of trauma in their life, but everybody forgets about the PTSD that’s impacting the victims of the crimes that these people continue to commit,” said Bujtas.
“How much disorder do we tolerate? How much are we expected to tolerate?” asked Plant. “Is it part of the price of living in society that a certain percentage of us have our houses broken into, because a certain percentage of people are people who break into houses? Or do we do something else?”
Forsyth said because of the lack of consequences, shoplifting is rampant. “You could literally walk into any store now and grab whatever you want off the shelf and leave. Nobody’s going to do anything. What kind of society is that?”
After 10 years in recovery, the remedy is obvious to Forsyth.
“They have to go to jail. It’s the first line of defense. There’s no, ‘Oh I stole because I’m an addict, please let me get help.’ No, it’s too late. You keep getting out and stealing, getting out and stealing, telling us you want help. How many times are you going to listen to somebody who says, ‘I’m sorry, I won’t do it again.’ Before you say too fucking bad. You’re sorry? You’ve been sorry 10 times already.”
But coupled with jail, should be the option of treatment, Forsyth said.
The Butler-LePard report calls for the creation of separate therapeutic units in prison to treat people with acute, chronic, mental health and substance use issues. The recommendation is a recognition of the reality that a majority of B.C.’s prison population struggles with addiction and/or mental health issues.
Currently, 40 per cent of those incarcerated in BC Corrections are prescribed opioid substitution medication, but substance use treatment programming is not available.
“We are failing this very unique opportunity where we have people in custody, often people are actually highly motivated – you have a captive audience – and we’re not providing people with treatment opportunities while they’re in custody,” said Butler. The prison mental health units are envisioned as part of the larger provincial continuum of care, she said.
Curiously, despite the premier’s earlier admission that repeat offenders would not voluntarily go into addictions and mental health care, and would, therefore, need to be compelled into care, there was no mention of mandatory treatment in Eby’s safer communities platform. Although Eby did call jail and involuntary committal “opportunities for us to intervene.”
Intervene with what, remains an open question.
There’s no treatment
There is no provincial regulation, monitoring or evaluation of evidence-based addictions treatment and recovery programs in B.C., the province’s chief coroner Lisa Lapointe told a legislative committee investigating the overdose crisis.
“Because there are no reporting requirements, we actually don’t know what’s effective. It’s a huge gap in our knowledge,” Lapointe said in an interview, referencing recommendations by the 2022 death review panel which call for comprehensive government oversight of drug treatment and an evidence-based continuum of care.
Butler agreed. There are no quality-of-care provincial standards for substance addiction like there are for diabetes or cancer, she said.
“That’s not to say that there aren’t pockets of innovation or high-quality care that are being delivered. Because there are,” said Butler. “It’s just that we don’t have an effective provincial system.”
Meanwhile, nearly six people a day are dying of an overdose in British Columbia, with around 21 people in Canada dying daily in 2021 – similar to the rate of fatal overdoses in Portugal before its much-vaunted drug strategy was implemented in 2000.
Portugal’s five-pillar drug strategy
Many advocates cite Portugal as proof decriminalization works, but decriminalization is only one aspect of the country’s five-pronged drug strategy, said João Castel-Branco Goulão, general director for Intervention on Addictive Behaviours and Dependencies in Portugal.
The “anchor” of the Portuguese strategy is dissuasion which includes strong enforcement and interventionist elements, along with the four other pillars, prevention, harm reduction, treatment and reintegration, Goulão told the B.C. legislative committee reviewing the overdose crisis.
“Decriminalization is just a part of it. It doesn’t work if the rest of the intervention is not present,” Goulão said.
From the get-go, the country also had something B.C. doesn’t – a comprehensive treatment system, which was in place prior to decriminalization.
“The treatment network was … quite available, quite solid. Decriminalization was the next step to turn everything more coherent, with the idea that we were dealing with a health condition, rather than a criminal one,” said Goulão.
Unlike B.C., Portugal’s treatment programs are government-regulated, have psychological supports and a licence to operate, and involve a multidisciplinary team with a psychiatrist “who [is] responsible,” Goulão said. Treatment ranges from programs with strict abstinence conditions, to easy access, low barrier prescribed substitution therapies.
Since implementing the full drug strategy, Portugal has reduced “problematic drug users” by two-thirds and fatal overdoses have plummeted from about one-a-day to 51 deaths in 2020.
Without treatment, ‘nothing improves’
In contrast, B.C.’s drug strategy in the past two decades has almost singularly focused on harm reduction measures while the other three elements of education/prevention, treatment and enforcement fell by the wayside.
“Ensuring a clean drug supply is a good thing if you’re preventing death,” Nanaimo’s Krog said. “But if you don’t have places for people to go if they want to quit … then nothing improves.”
Too often, “that moment when people courageously ask for help” is met, not by access to support services, but by wait lists and a lack of resources, especially for those living in rural or remote areas of the province, BC Liberal health critic Shirley Bond told the legislature earlier this month.
Deputy chair of the all-party health committee that reported on the overdose crisis, Bond said the most frequent issues they heard about related to an inability to access treatment and recovery.
“We must do so much better,” Bond said.
The committee called for “a substantive expansion” of publicly funded, evidence-based, accredited treatment and recovery services, as well as new legislation ensuring regulation, standards, protocols, and evaluation of effectiveness and outcomes encompassing all treatment and recovery services.
“We should have the expectation that there is enough of a social safety net that it’s not a high wire, because that’s what it is for a lot of people right now,” said the BC Green’s Furstenau, who was also a member of the health committee. “You fall through a gap in the social safety net now, there’s nothing to stop you.”
“A stain” on the province
“Almost everything we’re doing is not working for … the mentally ill and addicted,” BC Liberal Leader Kevin Falcon said in an interview.
He blamed all governments, from the current administration back through the 1980s, when people were released from mental institutions without adequate supports in the communities.
“I think it’s a stain on this province that we have the situation that we do today,” he said.
Safe drugs may provide part of the answer, but the focus should help people get off their addictions, Falcon said.
“That means making sure that we’re making the upfront investments that will be needed – and they will be significant – to ensure that people, when they have that moment of clarity and wish to seek that help, that they can get into treatment immediately, regardless of income, regardless of socio-economic status.”
For those who should, but don’t, seek treatment voluntarily, “we need to compassionately, lovingly remove them from the streets” and put them into “modernized, updated, compassionate facilities” located all the regions of the province, Falcon said. “Real 24/7 care where there’s genuine psychiatric and medical support and they can be stabilized with the goal of then later integrating them back into the community.”
Meanwhile, “public safety is number one,” which means those who are caught in addictions and repeating criminality will have to go to jail while the system is built up, Falcon said.
“Part of being in a free and democratic society is that if you pose a risk of danger to the health and well-being of others, in many circumstances, we see fit to forcibly separate you from society in some way.”
The problem is, there currently aren’t many options beyond jail. “So it all ends up being downloaded on our prison systems.”
Detaining people is the simpler aspect of the compelled care, said Plant. “The complex piece is making sure that what you have available in that facility or service is actually also responding meaningfully to the mental health, or addiction, or combination thereof, issue.”
A 2021 study by Butler, the independent Vancouver criminologist and co-author of the repeat offending report, reveals 75 per cent of people admitted to BC jails in 2017 had mental illness or substance use issues.
“They’ve closed the mental health [institutions]. So now they just put them in places like [supportive housing] and jail,” said Forsyth. “The jails getting full of mentally ill people.”
“People are funnelling into the criminal justice system because we don’t have a good community-based model [of care],” said Butler. The Butler-LePard report recommendation for live-in mental health and addiction units in B.C. prisons recognizes that reality, but the intention was not to stream people into corrections to get treatment.
“Because that requires that people engage with the criminal justice system before they can access care. We don’t want a system like that. At the same time, we need to acknowledge that there will inevitably be people with substance use and mental health concerns who interact with law,” Butler said.
‘Take away their rights … for the time being’
“You’ve got people living on the streets who are crazy, and don’t know what to do,” said Treena White after spending months interacting with troubled individuals while she tried to pull her own adult son off the streets and into treatment.
“That’s not fair to them, or to society.”
White believes people who are deeply addicted, homeless and getting into trouble on the streets need to be forcibly separated from illicit drugs. After White lost a daughter in a sports-related accident, her youngest son escalated from alcohol and cannabis to shooting heroin and fentanyl, eventually ending up in a tent encampment in Courtney.
“He was delusional. He was a completely different person on drugs,” White said her voice faltering with emotion. She likened it to your child “committing suicide every day and you can’t do anything and nobody’s helping.”
She called the process of trying to get him into treatment “absolutely ridiculous,” adding it was much easier for him to get drugs than to get help.
“It just shouldn’t be that difficult. If you have diabetes, they’re going to help you immediately. But when they’re addicted to something, it’s almost like they’re useless to society,” she said. “It was a crisis to get him back. It was so bad, we thought we were going to lose another child.”
Her son is now on Suboxone, a prescribed opioid substitute, and mid-way through a two-year treatment program. “Now he’s clear-headed, he’s like, ‘Thank God you pushed me. Thank God, you were there for me,’” she said.
“They shouldn’t be given a choice if their mindset is so altered that they don’t even know the difference between right and wrong anymore. If they don’t have any morals, no self-esteem whatsoever.”
It has to be mandated, White said. “We’ve got to take away their rights. Just for the time being. It’s not forever. Because the only other alternative is they’re going to die.”
In the gaming world, if someone realizes they have a gambling addiction, there are plenty of resources to help them, said Terrace mayor Bujtas, who also runs the city’s casino. There’s free help, people to talk to, and the voluntary self-exclusion program.
“Once you realize you have a problem, you can sign yourself out. You don’t get to undo that sign-out once you’ve done it,” said Bujtas. “Why wouldn’t we do the same for [drug] treatment? Why would we let people undo treatment once they’ve committed [and] said ‘I’ve got a problem when it comes to drugs and alcohol?’ Especially when we know it’s something that’s killing people?”
‘How do we pick and choose?’
“What is the kind of prolific offending that would require that kind of draconian approach? How do we pick and choose?” asked Westell.
Should it apply equally to violent offenders, people with a history of property crime, the mentally ill and drug-addicted, the elderly and youths, people suffering from fetal alcohol spectrum disorder or other personality disorders?
“What makes a person offend prolifically is many, many different reasons. Unless you’re able to break down what types of individuals are the so-called prolifics, then it’s really difficult to say what the cause of the problem is … and how to solve it,” said Westell.
Build a voluntary system first
Many, like chief coroner Lapointe, say it’s premature to talk about mandatory treatment in the absence of a functioning evidenced-based voluntary system.
Instead, the focus should be on shifting the societal mindset from “a war on drugs” to creating a co-ordinated, province-wide system of care for people with mental, physical and substance use challenges.
“It’s a massive change in philosophy and perspective,” Lapointe said.
“It needs to be rolled out on an urgent level and it needs to engage the highest individuals in every health authority to bring them to the table and say, ‘How do we do this? What do we do?’” said Lapointe. “We have not, to date, seen that urgent response.”
‘Social issue of our times’
Nanaimo’s Krog characterized the convergence of opioid addictions, mental health issues, brain injury, trauma, open drug use, homelessness and crime as the “social issue of our times.”
He wonders how governments found billions to help people through the pandemic, yet with COVID winding down, “the people who I would argue are the most vulnerable – because they don’t even have a prison roof over their heads – will still be with us.”
There are treatment gaps “across the board” in his community, he said, calling for a continuity of care that includes mandatory treatment.
“There is hope if there is care and that continuum of support,” he said.
Few would argue against a province-wide treatment system, but what’s to be done in the meantime?
“People will say that if all the support services were there, this problem would go away. And maybe it would, but what are you going to do until then?” asked Bujtas.
“There’s no doubt some people need to be charged and need to go to jail,” said Stubbs. “But at the same time, there’s a large population we can deal with another way.”
“There’s so many different tentacles that make up what that person is doing:” their background, family history, criminal offences, mental health struggles, homelessness and addictions.
Every person should be assessed individually by a cross-disciplinary team involving multiple ministries, the justice system, non-profit agencies, the police and three levels of governments, said Stubbs citing the effectiveness of smart tables or hubs.
“That’s where you put a person metaphorically in the middle of the table,” bring in professionals from across the sectors to discuss the “best path” for them.
“We participate in a lot of them. Sometimes it works very well,” he said.
But it’s a lot of work. And it can only deal with a few offenders at a time, so it’s resource-intensive for each person.
Some suggest restorative justice for repeat offenders, but the process only works for certain people and crimes, Stubbs said. It brings the victim and offender together for a facilitated discussion, an apology, some sort of restitution, and requires a participant who “wants to make it right,” usually motivated by avoiding a criminal record. Whereas someone with 20 convictions “doesn’t care about number 21,” Stubbs said.
Mandatory treatment needs to be part of the mix, he said.
“When it’s the only viable way to help the person and the community and to stop that creation of victims and others feeling unsafe in their community – it has to be an alternative.”
The more options you have, the more solutions you can find, said Stubbs.
Each community could create its own health and safety plan based on local needs and capacities, said Stubbs. “That would be ideal if you have that multi-sectorial government, NGOs, city hall, police all on the same page.”
It’s very difficult to get our system of government to operate in a multidisciplinary way, because it’s designed and encourages “individual ministerial accountability … not poly-disciplinary problem-solving,” said Plant.
Another obstacle to public policy-solving is the justice system itself.
“As a society, we’re highly conflicted on the question of what we want our criminal justice system to do. It’s very hard for us to get out of the mindset where we think the whole point of this exercise is to punish people for doing something wrong.”
Some societies have very few people in jail, but Canadian courts of the justice system are designed for the purpose of adjudicating guilt and innocence, Plant said. “Turning them into agencies of social work is an awkward fit.”
Appetite for bold
There are also a lot of differences in opinion about what it means to be free, and when it’s appropriate, and when it isn’t, for the state to intervene and tell people what they can and can’t do, he said.
“We have been grappling with that for as long as we’ve had laws,” said Westell.
“If the Attorney General wants to do something bold, I think there’s a lot of appetite for that,” said Westell. Mandatory treatment may be the best possible option in some circumstance, he added, “but it’s not free from ethical concerns.”
Treatment or death
Without compelled treatment, people will die, said Forsyth. “They’re just going to continue with what they’re doing until they’re dead.”
Instead, he said, give them an opportunity for a new life. Put them in jail for a month “let their mind clear,” then lay out the options.
“Say ‘Look, you’ve got a problem. You’ve been in and out of jail for 10 years.’ Anybody in their right mind would say, ‘I’ve got a problem.’ Come on, 10 years of this shit? Like, seriously, you’ve got a problem. Then when they have their face right in that, you give them an alternative – jail or treatment.”
If they say yes and are fortunate, they’ll get medically-supervised treatment and genuine rehabilitation like Forsyth. While the odds are against them finding the network of services and engaging the countless people-support hours needed for long-term success, Forsyth shows it can be done.
When Forsyth was younger, cycling in-and-out of jail, losing his freedom didn’t mean much to him. These days, after a decade of slow, painful, joyful work – with a lot of help from many, many people – Forsyth has built a life he loves with friends, sobriety and purpose.
“If it was taken away from me now, then I’d be hurting.”
Read the rest of our series, If not prison, then where?: