How effective can incarceration be for mentally ill?

By John L. Hill

Law360 Canada (November 28, 2023, 2:15 PM EST) --
John Hill
John L. Hill
The most severe legitimate penalty our courts can impose is the deprivation of liberty.

For people convicted of criminal offences, the deprivation is usually stated in terms of months or years of imprisonment. But for people who suffer from mental illness, criminal law is at a loss. There is no crime if one cannot link the mens rea and the actus reus. For such individuals, we can impose a warrant of committal that compels that person into the custody of a provincial psychiatric hospital and to abide by certain conditions. This is supposed to protect the public.

Basically, it's a detention order and is often invoked when someone has been found not criminally responsible (NCR) by a court for crimes due to severe mental disorder and sent, instead, to a psychiatric facility. The Ontario Review Board (ORB) determines when the person can be released according to continuing medical evaluation.

Trevor Caruso was such a person. Between May 2019 and June 2020, he was arrested numerous times. Two of the most severe incidents included assaulting an Uber driver, stealing his car to gain money to buy drugs and lunging at a security guard with a hypodermic needle. Because of his schizophrenia and substance use disorders, he was found not criminally responsible and was detained at a psychiatric facility.

Unlike a sentence for a Criminal Code offence, there is no automatic release after serving a prescribed term. A Dec. 9, 2022, hearing before the Ontario Review Board concluded that Caruso continued to pose a significant threat to the public’s safety. Caruso appealed that order, arguing that it was unreasonable to find he remained a significant threat to public safety and the order to detain him at the Forensic Program of Ontario Shores with indirectly supervised hospital and grounds privileges was not the least restrictive disposition available.

A three-judge panel of the Ontario Court of Appeal decision on Nov. 24, 2023, (In Re Caruso 2023 ONCA 782), held that the board may have been somewhat overcritical in not looking into reports that he had been restrained while in treatment and that his mother was fearful of him. The board correctly concluded that the carjacking incident and threatening the security guard with a syringe were serious even if no criminal charge was proven and even if no serious or lasting physical injury to a victim resulted. The court agreed that these two historical incidents were evidence that without treatment, the appellant poses a substantial risk of severe physical and psychological harm to members of the community.

Further, the court held that the board’s order was not overly restrictive. While Caruso appears amiable while medicated in the hospital, he continues to be a flight risk. The Appeal Court noted he had absconded on more than one occasion, and if he were to do so again, it would be unlikely he would continue with his daily medication.

The Ontario Court of Appeal implicitly agreed with a Toronto Star report published in October 2021 that commented on one of Caruso’s earlier elopements from psychiatric care. The newspaper account read, “First and foremost is the dilemma of a missing mentally ill patient, who might be of danger primarily to himself. Which would put Caruso among the hundreds and hundreds of people wandering around the city, homeless, likely frightened, in the midst of a pandemic, perhaps too disconnected from reality to make sense of the world. The reality of mentally ill people kicked to the curb goes back decades in Ontario, ‘de-institutionalized,’ in an unholy alliance between cost-cutting government and mental health advocates.”

There were not then, and are not now, sufficient support programs in the community to take care of the complex needs of these people. Street Health, the non-profit agency dedicated to homeless and underhoused people in Toronto, has presented annual data indicating that up to 32 per cent of them need mental health support, 35 per cent have been diagnosed with at least one mental health condition, and 28 per cent have been hospitalized an average of five times for emotional and mental problems.

The Court of Appeal agreed with the board that the combination of a substance use disorder and untreated schizophrenia would likely induce paranoia wherein Caruso could misperceive other peoples’ actions as threatening, causing him to take defensive and possibly violent actions.

The Appeal Court concluded the board’s order was reasonable. It may not be a prison sentence, but Trevor Caruso’s liberty interests remain restricted. Until we find a cost-effective way of managing the needs of those suffering from mental health issues on the street, our “deinstitutionalized” methods will continue to be prison-like.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books). Contact him at

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