Defence lawyers say Manitoba has failed to knock down months-long waits for psychiatric assessments of people accused of crimes, which ties up court time and is a “flagrant disregard”of guidelines set out in the Criminal Code.
“Our province lacks the infrastructure to meet the needs of mentally ill accused persons engaged in the criminal justice process,” Winnipeg lawyer Ethan Pollock said.
The shortage of forensic psychiatrists has plagued court proceedings for years and has made it impossible to receive assessments in a timely manner to determine whether a client can be deemed criminally responsible. Despite legal professionals raising concerns as far back as 2013, Pollock said “nothing has changed” since he started practising law eight years ago.
MIKAELA MACKENZIE / FREE PRESS
“I have clients that are mentally unwell who are waiting for a fitness assessment and they’re waiting too long, and they’re not waiting at St. Boniface (Hospital)… they’re waiting in an incarcerating institution where their liberties are severely, severely restricted,” lawyer Ethan Pollock said.
“There is, in particular, a considerable shortage of forensic psychiatrists capable of diagnosing and treating offenders who may be less morally blameworthy by virtue of underlying conditions such as schizophrenia.”
The Criminal Code requires that court-ordered assessments to determine criminal responsibility be completed within 30 days, with a possible 30-day extension.
Several lawyers told the Free Press it can take months longer to have an assessment completed.
Defence lawyer Carley Mahoney described the wait as “unacceptable” and a “flagrant disregard” of the Criminal Code.
In one case, she said she was told in March that a client was on a three-month waiting list, but that it would likely take longer.
“That’s before they can start seeing the person. A report would take a significantly longer period than that, that’s just basically starting the process,” she said.
Another lawyer, Caleigh Glawson, said she has to wait nine months “on average” to receive an assessment.
The delay directly affects how justice is served, Pollock said.
“If (the client is) not assessed at an early opportunity, it’s harder for us to gather what type of state he may have been in when he had allegedly offended.”–Ethan Pollock
“If (the client is) not assessed at an early opportunity, it’s harder for us to gather what type of state he may have been in when he had allegedly offended,” he said. “So the longer you wait, the harder it is to sort of ascertain what was going through their mind at the time of an alleged offence.”
It may even prevent lawyers and their clients from pursuing an assessment, said Mahoney.
“A lot of people, a lot of clients, probably aren’t even looking at that amount of custody on their charges, depending on their circumstances,” she said.
A spokesperson for Shared Health said progress has been made on the file: the median wait time for an assessment of criminal responsibility currently sits at 83 days, down from 114 days in 2022. There are currently seven psychiatrists able to make forensic assessments in Manitoba.
“Over the past 10 years, the demand for court-ordered psychiatric assessments has nearly quadrupled in volume,” the spokesperson said in an email Wednesday.
The time needed to assess whether a person is fit to stand trial is considerably shorter, a median of 10 days, Shared Health said.
In September, an eighth psychiatrist will be added to the roster of those who can carry out assessments.
“Over the past 10 years, the demand for court-ordered psychiatric assessments has nearly quadrupled in volume.”–Shared Health spokesperson
New technology has been introduced to the criminal responsibility assessment process that allows some aspects of it to be done virtually, and a case co-ordinator has been brought on the make the workflow move faster, the spokesperson said.
Other ways to reduce wait times “are also being actively explored.”
Justice Minister Matt Wiebe said Wednesday the issue is on the government’s radar.
“Under the previous government, the wait times for psychiatric assessments were far too long, contributing to the overall problem of court delays,” he said in an email.
“We are taking action, working in partnership with health professionals and the judiciary, to make our courts more efficient and ensure that all Manitobans have access to justice.”
One option is for an accused to pay for a private forensic report, but Mahoney said finding a forensic psychiatrist or psychologist in Manitoba who is able to conduct the assessment is difficult and costly.
“We are, at this point, using out-of-province doctors in Ontario, largely. I understand that other counsel have been using out-of-country doctors… people are really branching out,” she said.
“A lot of the clients waiting for these assessments are in custody because the Crown is opposed to their release, because they appear to be high risk, and they don’t have mental health resources. We just don’t have enough information.”–Carley Mahoney
In July, defence lawyers for Jeremy Skibicki hired a forensic psychiatrist from the U.K. to testify during his Winnipeg trial, in which he argued he wasn’t criminally responsible for slaying four women. He was later found guilty on all counts.
In a current case at the law firm where Mahoney works, a doctor provided an assessment that took 56 hours, at a rate of $350 per hour. The bill is just shy of $20,000.
The persistent shortage of space at PX3, the locked 15-bed psychiatric ward at Health Sciences Centre, has exacerbated the problem.
Mahoney said the beds are used for “medical management” of anyone in custody who’s unwell, leaving little space for assessments of criminal responsibility or fitness to stand trial.
Mahoney called the delays an “access to justice” issue — most clients can’t afford to pay for an out-of-province professional, and Legal Aid Manitoba can’t afford to fund it in every case, meaning the amount of time an accused sits in jail waiting for an assessment depends on their income level.
“A lot of the clients waiting for these assessments are in custody because the Crown is opposed to their release, because they appear to be high risk, and they don’t have mental health resources. We just don’t have enough information,” she said.
“So they’re not just waiting and getting these extensions time and time again, but they haven’t even been able to apply for bail or haven’t been able to secure bail. They’re sitting waiting in custody.”
MIKAELA MACKENZIE / FREE PRESS
“There is, in particular, a considerable shortage of forensic psychiatrists capable of diagnosing and treating offenders who may be less morally blameworthy by virtue of underlying conditions such as schizophrenia,” lawyer Ethan Pollock says.
Pollock agreed.
“I have clients that are mentally unwell who are waiting for a fitness assessment and they’re waiting too long, and they’re not waiting at St. Boniface (Hospital)… they’re waiting in an incarcerating institution where their liberties are severely, severely restricted.”
malak.abas@freepress.mb.ca
Malak Abas
Reporter
Malak Abas is a city reporter at the Free Press. Born and raised in Winnipeg’s North End, she led the campus paper at the University of Manitoba before joining the Free Press in 2020. Read more about Malak.
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