Years later, former N.B. judge still waiting for more mental health courts

By Terry Davidson

Law360 Canada (November 27, 2023, 11:22 AM EST) -- A retired New Brunswick judge continues to question why the province still has only one mental health court — despite his call for additional locations 14 years ago.

Former judge, priest and politician Michael McKee, 83, has long been advocating for more mental health courts across the province. Currently, New Brunswick has one, in Saint John.

It was McKee who in 2009 released Together Into the Future: a transformed mental-health-system for New Brunswick — colloquially known as the McKee report — which included 80 recommendations for mental health reform in New Brunswick. One of them was to ensure access to a mental health court in each region of the province.

According to Statistics Canada, 16.5 per cent of New Brunswick residents 12 and older perceived their mental health to be “fair or poor” in 2022 — higher than the national number of 14.4 per cent (excluding the territories).

And it seems things have not changed much since. Another StatCan report found 16.7 per cent of people in New Brunswick perceived their mental health as being fair or poor as of the second quarter of 2023.

The mental health court in Saint John was established in 2000 as a pilot project and headed by Justice Alfred Brien. It was made permanent in 2004 but was suspended in 2013 following Brien’s retirement from full-time work.

Interestingly, the specialized court had produced positive results: according to New Brunswick’s government, 85 per cent of the cases heard by Brien did not result in reoffence.

The court was re-established in 2017 following outcry from advocates. A news release announcing its reopening stated that the court “allows a provincial court judge and a mental health team to establish a treatment plan, which an offender must follow to remain in the program.”

But McKee and others have long been saying that one is not enough.

McKee, a recipient of the Order of Moncton, continues to scratch his head as to why, after all these years, the mental health court in Saint John remains the only one.  

Regular criminal courts are not geared to deal with those who are mentally ill, he said.

“They don’t look at the treatment the individual might need as a mental health patient. They look at it strictly from the … point of view of: you committed a crime; if you’re found guilty or you plead guilty, you’re going to be sentenced, and the sentence will be determined by the Criminal Code and the jurisprudence that exists. … But the mental health court starts off by recognizing that being sick is not a crime.”

McKee points to a problem involving jurisdiction, and the fact that the mental health court in Saint John serves those in that area.

“The way that the court system is divvied up, if the crime is committed in the Moncton area, the Saint John court system doesn’t want to deal with other areas. I mean, they have enough court cases now [to deal with].”

McKee was asked what he would say to N.B. Justice Minister Ted Flemming. To this, McKee turned to the benefits felt following the establishment of the mental health court in Saint John.

“I’d like know what the holdup is, really. … It’s people who have to pick up the ball and then run with it. … They found a judge who was interested [in establishing the Saint John court]. The judge is the one who established it on his own initiative. If I was 30-years younger, I’d tell [Flemming] that I’d be more than willing to try and organize what is in Saint John — organize that in Moncton, for instance.”

McKee’s advocacy comes honestly.

According to an Order of Moncton bio page, McKee was ordained into the priesthood in 1966 and became a prison chaplain, seeing firsthand the impact of mental illness.

A graduate of the University of New Brunswick’s law school, he would serve at the province’s legislature, become minister of labour and multiculturalism and pull time as an MLA. He was appointed to the provincial court in 1992 and went on to chair the province’s Mental Health Commission.

Fighting alongside McKee has been Paul Ouellet, a retired accountant who began his advocacy after his sister, who is schizophrenic, was marched through the court system in Moncton after she attacked a psychiatric nurse.

Speaking with Law360 Canada, Ouellet recalled seeing her led into the courtroom, shackled at both hands and feet and wearing little more than a hospital gown. In the clutches of psychosis, Ouellet’s sister, a university grad who majored in the study of languages, disrupted the proceedings by singing to the judge in German. But the judge, seemingly sensitive to the situation, took a somewhat unusual path in dealing with her.

“The judge looked at her and said, ‘This person does not belong in my court. Bring her back to the Moncton hospital, in psychiatry, and treat her. The charges are being withdrawn,’” said Ouellet.

Since then, Ouellet has become a prominent advocate for mentally ill residents caught in the justice system. Like McKee, he has long called for mental health courts to be established in such places as Moncton, Fredericton, Miramichi, Bathurst and Edmundston.

A request for comment and answers to questions was sent to a spokesperson with the province’s justice Ministry, but a response was not received by press time.

Following the publishing of McKee’s report in 2009, the government of New Brunswick gave a formal response. As for McKee’s recommendation that mental health courts be established across the province, the government stated that “[w]hile the departments of Health, Justice and Consumer Affairs and Public Safety recognize the unique focus and the rehabilitative potential of mental-health courts, a provincewide initiative is not feasible until additional resources become available.”

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