Considering Extra-Legal Factors: Mental Health and Race

Because the Justice of the Peace (JP) is focused on the appropriateness of release—not guilt—there is a limited range of information about the accused deemed relevant at the bail stage. Relevant factors are ones that help the JP “predict” the risk associated with the accused’s release. Permissible factors include legal factors, such as the accused’s prior criminal history and the nature of the alleged offence(s). Lawyers agreed that only factors that address the primary, secondary, and tertiary grounds for detention outlined in section 515(10) of the Criminal Code are treated by the courts as relevant. One Duty Counsel articulated a sentiment shared by the group: “If we’re planning for a bail hearing, then the most important information really is, where are you going to be living, do you have a criminal record, and what the charge is,” and, depending on the nature of the offence, “you may need a surety or not need a surety” (DC 4). These factors represent the “key ingredients that the Crown is looking for” to consent to release (DC 4).

Factors such as care status become relevant later in the legal process, typically following conviction: “And especially at the disposition stage, where they’re being sentenced or being given probation or whatever, you’d want to be talking about how the person got there” (DC 8). Duty Counsel indicated they rarely explicitly bring up an accused’s care status at the bail stage, unless:

Although Crown Attorneys play a significant role in the bail decision (Yule and Schumann Reference Yule and Schumann2019), beyond details provided by the arresting officer in their synopsis, Crown Attorneys are only privy to information about the accused that is offered by defence counsel (CROWN 1). One Crown Attorney indicated, “there’s not time to gather all kinds of background information” at this stage (CROWN 1). A Duty Counsel elaborated, the courts are “overburdened,” “under-resourced,” and “understaffed,” which limits the amount of information that is introduced at this stage (DC 3). There is a high volume of cases on the daily docket, and to get through these cases, the court focuses on efficiency: the goal for bail court actors is to keep the court’s processing of cases moving. These accounts are consistent with the literature, which describes bail courts as places of bureaucracy and efficiency, rather than justice (Feeley and Simon Reference Feeley, Simon and Nelkin1994; Myers Reference Myers2015; Natapoff Reference Natapoff, Dolovich and Natapoff2017).

In addition to legal factors, such as nature of the offence and criminal history, the lawyers’ accounts reveal that extra-legal considerations frequently factor into bail decisions. Narrow focus on the law, then, does not mean extra-legal factors are excluded from bail court discussions. Care status, for example, is not directly tied to one’s legal history or the three grounds for release; thus, it is not immediately relevant at the bail stage, but it might come up indirectly when developing a bail plan if youths are asked about their “living situation and family connections” (DC 4). Sometimes a surety—a person who promises a sum of money to the court and agrees to supervise an accused in the community—may be required for release. Because most youths leaving care do not stay in touch with their foster families or group home staff and have tenuous connections to their families of origin, it is often difficult for them to identify a suitable surety and they may disclose their history in care.Footnote ⁶ Care status, then, is an extra-legal factor that is “peripherally connected” to the grounds for release (CROWN 1). Consequently, extra-legal factors that are connected—however loosely—to the grounds for release are relevant to the bail decision.

“Caring” Responses to Mental Health

Duty Counsel suggested that, in instances where the accused contends with mental health challenges, police officers and Crown Attorneys often “rely on myths about mental health” to determine the appropriate bail release plan (DC 1). Indeed, sometimes Crown Attorneys will read a synopsis from the arresting officer where, “the people that report the crime might say ‘the mental health has gotten out of control,’ ‘it’s untreated at this point,’ ‘I’m just not sure what the person’s going to do,’ ‘I am nervous about the way he acts around me’—and that can sometimes be a barrier to the person being released at the bail stage” (DC 2).

This example highlights how influential the initial assessment of the arresting officer(s) is in subsequent stages in the legal process. Here the arresting officers appear to be describing unpredictable behaviour, which is not in itself a criminal offence. These descriptions become problematic when unpredictability is interpreted as riskiness. According to Duty Counsel, some Crown Attorneys argue that “a person’s mental health is linked to unpredictability” and that their “level of unpredictability is enough for [them] to say [they] can’t necessarily release this person back into the community” (DC 2). In making this argument, it appears the Crown is conflating mental illness with unpredictability and riskiness, making mental illness something that needs to be managed before release can be considered.

When faced with a mentally ill accused, the court sometimes exhibits a reluctance to release the accused for fear of what they might do. In these instances, “defence lawyers are often tasked with trying to say, a mental health diagnosis does not prevent someone from being released. It’s a factor that can be addressed through care and through support” (DC 2).

Elaborating on what is meant by “care” and “support,” this lawyer explained they try to connect their clients with treatment or counseling as conditions of release. Several Duty Counsel indicated they use this tactic, suggesting it is a common practice. One Duty Counsel expressed that it is “very helpful” to create a “treatment plan for the mental health issues, where they are planning to get them to a psychiatrist and meds, that addresses the secondary grounds” (DC 5). Another said:

Another Duty Counsel indicated that having a treatment plan in place increases the likelihood of release: “We get them linked with counseling, we have their potential sureties reach out to doctors, set up appointments ahead of time. People are much more likely to get released if we can articulate to the court that we’ve already set up some sort of plan” (DC 1).

Treatment conditions are often proposed to pre-empt the Crown’s concerns about releasing the accused. Connecting the accused to treatment and similar supports is intended to show the Crown the accused is taking steps to manage their mental health symptoms in the community, thereby mitigating their riskiness and making it safer to release them. The consensus among the lawyers interviewed is that having a treatment plan in place increases the likelihood of release.

The appropriateness of imposing treatment conditions at this early stage, however, is questionable. Many accused have not yet received a formal mental health needs assessment, and uncertainty exists about the potential long-term benefit or success of treatment if it is coerced. Although treatment conditions are intended to be “caring” and “supportive,” Sprott and Myers (Reference Sprott and Myers2011) contend that, rather than “helping” the accused, multiple, restrictive bail conditions set accused up to fail. Accused individuals are likely to agree to any bail conditions to secure release from detention, even conditions they may not be able to comply with (Myers Reference Myers2016). In some cases, an accused may have the initial substantive charge(s) withdrawn, only to accrue administration of justice (AOJ) charges for breaching their release conditions. If the accused does not want to be treated, these conditions will fail to meet their intended purpose. Rather, the mentally ill individual will likely breach and find themselves back before the courts, in a position where their release may be revoked.

Furthermore, at the bail stage, accused are to be presumed innocent; imposing onerous conditions such as requiring accused to attend treatment is not consistent with the law and creates undue harm for released individuals by adding circumstances that only invite breaches and further charges (JHSO 2013). Yule and Schumann (Reference Yule and Schumann2019) argue that defence counsel should be objecting to these restrictive conditions, because establishing such onerous conditions from the outset violates the ladder principle. Though one lawyer described treatment conditions as “paternalistic” and “inappropriate” at the bail stage (DC 1), they also recognized that these conditions were sometimes needed to ensure their client’s release from custody. This sentiment is consistent with Yule and Schumann’s (Reference Yule and Schumann2019) finding that defence counsel tend to focus on getting their client out of custody, even if the accused will be given several conditions. Perhaps Duty Counsel’s focus on release could be alleviated if more attention were paid to why accused were being detained following arrest. This question calls attention to the bigger problem of conflating unpredictability, mental illness, and risk in bail court, which in practice creates a revolving door of criminalization for mentally ill individuals (Chan and Chunn Reference Chan and Chunn2014).

Punitive Responses to Race

To frame race as risk constitutes discrimination. Yet race is of paramount concern in the early stages of the legal process. Unlike mental health, race is often centred in bail court discussions without ever being explicitly mentioned. One Duty Counsel captured this sentiment: “There isn’t an area of law, and especially in criminal law, that [anti-Black] racism doesn’t exacerbate the issue. It exacerbates everything” (DC 7). They indicated that when race is introduced, it tends to be brought up in more subtle but insidious ways; for example, by associating a racialized person’s neighbourhood and appearance with risk, danger, and criminality.

These references begin to appear early in the process, in the synopses prepared by the arresting officer(s). According to one lawyer, when the accused is racialized, arresting officers often make comments that are imbued with racist assumptions:

When an accused’s neighbourhood is associated with “gangs,” “drugs,” and “all kinds of bad people,” assumptions about their neighbourhood may influence how they are viewed by the court. Living in a particular neighbourhood is perceived by some justice system actors as an explanation for why a person is before the courts, the assumption being that neighbourhoods deemed “high crime” must be populated by “criminals.” Some people are then seen as inherently more blameworthy and riskier than others. It is unsurprising that neighbourhoods most often referred to as “dangerous” and “bad” are largely poor and racialized. Consistent with Kellough and Wortley’s (Reference Kellough and Wortley2002) examination of police synopses, initial assessments by the police matter; accused who receive a negative assessment from the police are more likely to be denied bail than those who receive neutral assessments (p.196). When controlling for legal factors, officers tend to more negatively assess Black individuals than other racial groups (Kellough and Wortley Reference Kellough and Wortley2002). These findings suggest that risk can be manufactured and then made real when accused are treated as risky.

Comments about the accused’s appearance are also influential at the bail stage. One lawyer called attention to ways Crown Attorneys sometimes associate an accused’s physical appearance with racist tropes about “what a criminal looks like” (DC 7): “I think race plays a factor. I think size plays a factor. When you have these tall, big youth, Black men—Black kids, they’re not men, sorry—kids, there is a perception, ‘Oh, he’s a big guy. You know, he could do some real damage to her.’ So, again, these are racist tropes of the big Black scary man, right?” (DC 7).

Young Black men are often met with a presumption of guilt, simply based on their size and the colour of their skin. According to Maynard (Reference Maynard2017), this reaction in the courts is not new. In Canada, dominant narratives have linked crime and Blackness, beginning in the period of enslavement through to the contemporary era. Blackness, and consequently Black people, have consistently been perceived and treated as though they are threatening, by virtue of being Black (Maynard Reference Maynard2017). This narrative relies on the inherent blameworthiness of Black people and is manifested through and sustained by the legal system. Hinging risk assessments on race, however, amounts to discriminatory reasoning. If bail court decisions are even partly rooted in assumptions about a racial group’s past behaviour, rather than factors about the individual accused, this shows that racialized accused are uniquely disadvantaged early in the legal process.

Mis/Interpreting Mental Health Symptoms

Young people in the child welfare system disproportionately experience mental illness, often stemming from past trauma (Yehuda, Halligan, and Grossman Reference Yehuda, Halligan and Grossman2001). Youths’ mental health symptoms are often perceived as disruptive behaviours, which may invite police involvement (Finlay et al. Reference Finlay, Scully, Kent, Farrell, Dicks and Salerno2019). All youths interviewed had been arrested, including some who were arrested while experiencing mental distress. Some believed they had been arrested because the symptoms of their mental illness were mis/interpreted. Although youths were acting in response to their circumstances and in ways consistent with their illness, their behaviours were often interpreted as threatening or dangerous.

Carmela’s experience provides a useful example. When Carmela, a twenty-four-year-old Black woman, was ten years old, her family emigrated to Canada. Two years after arriving, she was apprehended by the Children’s Aid Society (CAS) and placed in foster care. Carmela experienced trauma leading to her apprehension by CAS and was re-traumatized by having to leave her family. She developed PTSD in response to these critical life experiences, but neither Carmela nor the adults in her life recognized her symptoms as being associated with mental illness, so they were consistently mis/interpreted and met with criminal, rather than caring, responses. Carmela has been arrested several times while experiencing PTSD symptoms. In her words, “Usually, 80% of the time when I find my own self institutionalized, that is because of my mental health to say the least.”

When her PTSD is triggered, Carmela said she feels disassociated from her body: “Physically I was there, but mentally I wasn’t there.” In these moments, her fight or flight response assumes control and she cannot control her actions. Carmela shared that she is afraid in moments that she is triggered. It can also be frightening for those around her. She described an incident where she disassociated from her body and her foster mother panicked: “She didn’t know [I] was lost because [I] was…[triggered].” Though Carmela had not been formally diagnosed at that time, her foster mother was aware of the traumas that had resulted in her apprehension and placement in foster care. Despite this knowledge, Carmela’s foster mother interpreted her behaviour as dangerous and involved the police, leading to her first criminal charge at twelve years old.

This pattern of being triggered, then criminalized, repeated for much of Carmela’s adolescence and young adulthood. She said: “I found with my situation, usually when I get in [trouble] … it’s usually based on me experiencing a mental health issue and not really knowing how to deal with it personally, and then having the people around me not really understand it. And then it just kind of escalates to something bigger.”

Before receiving a formal diagnosis, neither she nor the adults in her life understood her behaviour to be manifesting symptoms of PTSD. While it might be difficult for an individual who has no prior knowledge of Carmela’s history or understanding of PTSD to recognize Carmela’s symptoms, one might reasonably expect that her foster parents and group home staff—who receive training about the challenges youths face, have experience working with this population, and have access to the details of youths’ histories—would have the knowledge and skills necessary to recognize Carmela’s symptoms and to provide her with the support she needs. In cases where Carmela presents a danger to herself or those around her, it is the police, rather than mental health services, that are typically called. There is a lack of mental health services available in communities across Canada that could be called to intervene in these circumstances. Without viable supports and services, the adults in Carmela’s life are put in the undesirable position of involving police and consequently contributing to her criminalization.

Carmela’s circumstances are, unfortunately, common among youths leaving care. Dina, a twenty-one-year-old Black woman, said the actions leading to her criminal charge were a result of her being “unwell.” At the time of her arrest, Dina said that she “was high, sick, [and] struggling with [her] mental health.” Many youths said they were intoxicated when arrested but, when prompted to elaborate, indicated they used substances to cope with trauma, which then led to contact with the police. Scarlett, an eighteen-year-old white woman, shared she was arrested for substance use but explained substances helped her cope with recent trauma: “I’d just been sexually assaulted and stuff, and I was suffering a lot of PTSD, so everything was made so much worse.” Similar to Scarlett, Arlo, a twenty-four-year-old Latin American man, said, “All that stuff [in my past] led to my alcoholism, that led to some really poor choices, which brought me to the bail courts.” Even when police are called to help, young people’s behaviour may be misinterpreted. Kalee, an eighteen-year-old white woman, said she was arrested while experiencing distress after a family member called the police requesting a wellness check.Footnote ⁷ In her words, “[The police] literally just handcuffed me right away.”

These examples highlight a significant phenomenon of young people being criminalized at moments when they are experiencing distress. Sometimes, foster parents and group home staff fail to recognize trauma-induced behaviours when they are happening. Other times, they are under-resourced and lack the capacity to respond directly to the behaviour. There is a lack of community mental health resources to turn to, and so, out of fear, frustration, or anger, many will turn to law enforcement for support to help them manage youths’ behaviour (Scully and Finlay Reference Scully and Finlay2015; Finlay et al. Reference Finlay, Scully, Kent, Farrell, Dicks and Salerno2019). Yet this response fails to address the underlying causes of youths’ behaviours and does not recognize their histories of trauma. For many youths leaving care, and particularly for those who are racialized, involving the police to address behaviour or distress is, from the outset, experienced punitively rather than positively. Involving police also does nothing to prevent these young people from experiencing criminalization in the future. On the contrary, criminalization may only exacerbate youths’ mental health symptoms (Geller et al. Reference Geller, Fagan, Tyler and Link2014), increasing the likelihood of further criminalization.

For youths who have experienced trauma and who have significant difficulty trusting others, contact with the police can be devastating and re-traumatizing. This was the case for Dina, who experiences significant mental health challenges, including psychosis. Dina’s past experiences of assault by men invoked a triggered response when she was approached by two male officers in plain clothes:

Dina’s mental illness led her to believe the officers meant her harm. In response, she fought back and was met with force, then criminalized. The officers were unaware of her history of trauma and responded with force, as is protocol.

At the time of her arrest, Dina was at the hospital seeking treatment for injuries sustained in a recent assault:

Dina had just suffered an assault by a man. She was at the hospital seeking treatment for an injury she sustained during the assault. Yet, like Carmela, Dina’s description of being approached by the officers indicates they perceived her to be a threat. Rather than being protected in a moment of extreme vulnerability, Dina was attacked again, by the police. Dina’s experience of victimization at the hands of the police is shared by the majority of youths interviewed (64%, n = 16).

These kinds of encounters create distrust between youths and the police. Dina states:

At the time of her interview, Dina was living in community-based supportive housing for individuals experiencing mental health challenges and told me that staff sometimes request wellness checks for her. Given Dina’s history, more police contact in her life increases her risk of further criminalization. Importantly, although Dina was apprehended by the child welfare system, it is the criminal justice system—not her CAS worker—that administers wellness checks now that she is a legal adult. Young people who have experienced significant trauma need ongoing support, but the child welfare system’s parental responsibilities end when the youths in their “care” reach the age of majority. In this way, the child welfare system can act as a pathway into the criminal justice system for youths leaving care.

Race-Based Responses to Distress

Importantly, not all young people were met with punitive responses by the police when exhibiting similar behaviours. Analyzing experiences of justice system contact using an intersectional framework reveals ways youths experience oppression and disadvantage from their unique positionalities. This framework allows for youths’ experiences to be compared based on their race, care status, and mental health and reveals that some young people received different responses to their mental health symptoms from justice system actors, seemingly based on the racial group they belong to. Evidence of this race-based treatment can be seen in Carmela and Dina’s experiences in comparison with David’s, a twenty-two-year-old white man, and Jesse’s, a twenty-four-year-old white man, all of whom were arrested while experiencing distress.

David had experienced homelessness for two years, had been formally diagnosed with schizophrenia, and used substances. These circumstances made him vulnerable to contact with the police. He described an instance of being arrested while trying to shoplift alcohol. David’s mental health had deteriorated and he was “making a scene” in the store when the police were called (David). As David recounted his experience, he described resisting arrest and exhibiting behaviour the arresting officers would likely consider disrespectful: “I started yelling at them actually. Yeah, I was yelling at them and everything. I was swearing and cussing and everything at them.” David was arrested and detained at the police station. He shared that the arresting officers identified his behaviour as related to his mental health and advocated for him to begin a mental health diversion program: According to David, the officers knew “putting [him] in jail would’ve made things worse because [he has] a mental health condition.” As a result, David did not have to attend court and was instead connected to a community-based mental health service for vulnerable youth. Though Carmela, Dina, and David had all been accused of committing non-violent crimes, had similar histories of prior offences, and exhibited similar distress at the time of their arrests, only Carmela and Dina received custodial sentences.

Jesse was also detained after he was arrested. Jesse had left the province to connect with a romantic partner in another city. Shortly after he arrived, the connection between them deteriorated, becoming toxic and abusive, so Jesse left. Extremely distressed, Jesse used substances to cope and stole a car. He was arrested during the commission of a crime (theft) while under the influence of illegal substances. But he was also experiencing distress, which impacted the way officers treated him. In contrast to Dina, Jesse said he was not met with force while arrested, so there was no need for him to resist. His re-telling suggests that the arresting officers recognized his symptoms or did not consider him to be a threat—possibly both.

While Dina was arrested in the hospital while seeking treatment for an injury incurred during an assault, Jesse was arrested in the community while intoxicated, and after stealing a car. Dina indicated the arresting officers had little regard for why she might be seeking treatment; upon approaching her they put their hands on her. In contrast, Jesse shared that the arresting officers showed a lot of care for his wellbeing. He said: “they were constantly watching over me, making sure I was okay.” It appears that the officers recognized that Jesse was unwell, but in Dina’s case, even though her environment and injuries indicated she was not well, she said that the officers acted as though they perceived her to be a threat.

While many youths shared stories of being arrested while in distress, the stories of Dina, Carmela, David, and Jesse illustrate pronounced and concerning race-based differences in treatment by justice system actors. Though all four youths were criminalized for their behaviour, an intersectional framework reveals that white youths were met with more protective responses from police, while Black youths were met with more punitive responses. It appears officers’ split-second interpretations of behaviour are filtered through a lens of pre-existing racial bias. Youths’ experiences are consistent with Skolnick’s (Reference Skolnick1966) earlier findings that police typically perceive young Black [men] as “symbolic assailants,” which leads to more stops and differential treatment for this group (Skolnick Reference Skolnick1966). Building on this work, Wortley (Reference Wortley1996) contends there is a racial hierarchy of criminal justice treatment, wherein Black individuals are positioned at the bottom and white individuals are positioned at the top. This analysis reveals that among an already vulnerable group, Black youth leaving care are especially vulnerable.

Police officers’ perceptions of race are significant and have material consequences in the legal process: police assessments influence the course of action taken by the Crown at the bail stage, which affects an accused’s trajectory through the legal process (Kellough and Wortley Reference Kellough and Wortley2002). The overrepresentation of racialized groups at every stage of the criminal justice system is a direct result of—and evidence of—the over-policing and differential treatment of racialized groups (Jiwani Reference Jiwani, Chan and Mirchandani2019).