2000-beyond Major Changes

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Problem-Solving Courts


The Ontario Court of Justice led the way, establishing the first problem-solving court in Canada. Toronto’s Mental Health Court opened its doors in Courtroom 102 in Old City Hall in May 1998. Since then, more than 50 problem-solving courts have been established across Ontario, including those specializing in drug treatment, alcohol treatment, domestic violence, Gladue and Aboriginal persons, community treatment and mental health issues.

What distinguishes a “problem-solving” court from a “traditional” court? In a traditional court, the focus is on applying the law to the evidence presented, and making a decision. A problem-solving court – also referred to as a “specialty” court – includes different types of accommodations to suit the needs of particular kinds of cases, accused persons or witnesses. These courts are also intended to offer a broad range of programs and supports to help the people who come before them.

Considered revolutionary when they were first introduced in Ontario, problem-solving courts were a response to the growing concern about the over-representation in the criminal justice system of people from marginalized and disadvantaged communities – including persons with mental health challenges and those with drug dependencies, for example.

“These courts were a practical response to a real need,” recalled Justice Richard Schneider who sat in Mental Health Court in Old City Hall from 2000 to 2012. “The mentally ill were getting lost in the criminal justice system, spending huge amounts of time in custody on minor matters.”[1]

Justice Judith Beaman (Photo courtesy of J. Beaman)

Justice Judith Beaman (Photo courtesy of J. Beaman)

Justice Judith Beaman sat in Ottawa’s Drug Treatment Court from 2006 to 2012 and subsequently led the initiative to create Kingston’s Drug Treatment Court which opened in 2012. Judging in a problem-solving court gave her a “better understanding of why people who have stumbled in life can’t lift themselves above the fray.” When dealing with offenders with addiction issues, she felt she “wasn’t effecting any change in their lives.” Sitting in Drug Treatment Court, Beaman was afforded the opportunity to learn more about the background of those appearing before her. Court supervision, along with the supports that could be provided to these people in this Court, Beaman witnessed people struggling with addictions “become stabilized, productive and able to make massive changes in their lives.”[2]

Justice Heather Perkins-McVey, as defence counsel in Ottawa, was involved in the creation of Ottawa’s Mental Health Court in 2007. Now sitting as judge in that Court following her appointment to the bench in 2009, she recalled the lessons she has learned from this experience and how she has applied them in “traditional courts.” “It has given me a better understanding of the important role a judge can play in people’s lives. The judge can take a real leadership approach when they listen and support those who appear before them. That can positively influence the outcomes for people when they know judges are interested in and encouraging to them.”

A Look at How These Courts Work

Variations in approach and procedure may be observed in the operation of the various problem-solving courts, reflecting their essentially specialized nature. However, all typically incorporate:

“…a problem-solving focus; a team approach to decision-making; integration of social services (with) judicial supervision of the treatment process; direct interaction between the defendants and the judge; community outreach; and a proactive role for the judge inside and outside of the courtroom.”[3]

Therapeutic Jurisprudence and Problem-solving Courtsproblem solving book cover

The concept of “therapeutic jurisprudence” was introduced in the 1980s. Therapeutic jurisprudence says the processes used by courts, judges, lawyers and others in the justice system can affect the well-being and outcomes for those who come before the courts. It asks all judges to recognize that they can be important agents of change – that their words, actions and demeanour will invariably affect the people who appear in their courtrooms. Empathy is one of the key foundations of therapeutic jurisprudence. According to the concept of therapeutic jurisprudence, all judges in all courtrooms can use problem-solving strategies to make their courts and their decisions more relevant, collaborative and effective.

(Source: Susan Goldberg, “Problem-Solving in Canada’s Courtrooms: A Guide to Therapeutic Justice” National Judicial Institute, 2011, pp. 3-4.)

Mental Health Courts

By the mid-1990s, the Ontario Court (Provincial Division)[4] at Old City Hall was contending with a significant increase in the number of mentally disordered persons charged with relatively minor offences. During the previous decades, many of the institutions that housed people with mental health issues had closed, with the goal of transitioning them into the community. The results of “deinstitutionalizing” were not all positive. Community treatment programs and facilities did not replace the institutions in adequate numbers and this lack of support led to increased contact with police and the criminal justice system.

For many people, the entrance to the courthouse was effectively a revolving door. Without treatment, assistance, or support, they found themselves back before the Court almost as soon as they were released. And when people came back to Court, there were often considerable delays and inefficiencies in addressing their mental fitness to stand trial.

In August 1997, Chief Judge Sidney Linden and Regional Senior Judge Walter S. Gonet endorsed a plan to establish a specialized “Mental Health Court” in Courtroom 102 at Old City Hall with two objectives:

1. to quickly address the mental fitness of an accused person to stand trial; and
2. to stop – or at least slow – the “revolving door.”

In part, these objectives are achieved in the Toronto Mental Health Court by “diverting” eligible offenders out of the criminal justice system and into alternatives. Diversion is generally available for minor offences – including property offences such as theft or mischief; minor non-spouse/partner assaults without injuries or weapons; causing a disturbance – and especially for first offenders.



Justices Richard Schneider (top) and Ted Ormston were instrumental in the development of Toronto’s Mental Health Court at Old City Hall.

For slightly more serious offences, the Crown Attorney has discretion whether to divert charges, having regard to the circumstances of the offence, the circumstances of the accused, and the needs of the community, including the victim. Serious offences, including any offence causing death or serious bodily harm, sexual offences, spouse/partner offences, child abuse, and home invasions, are not eligible for diversion.

Eligibility also depends on the circumstances of the accused person. The person’s mental condition must be amenable to treatment through programs and resources that are available in the community, and the accused must be interested in pursuing diversion. Diversion can take a variety of forms. Depending on his or her circumstances and needs and the nature of the offence, an accused person may be admitted to hospital for assessment, required to attend counselling sessions, perform community service, offer an apology to the victim, or make restitution or pay compensation for the victim’s loss.

It is important to note that diversion for mentally ill offenders is available in ordinary criminal courts as well as dedicated Mental Health Courts. In fact, Ottawa’s Mental Health Court opened in 2007 is not a “diversion” court – charges do not need to be diverted for a person with mental health issues to appear in that Court.

What are the advantages of a specialized court when dealing with this type of offender? Unlike ordinary criminal courts, Mental Health Courts are staffed by mental health workers and psychiatrists as well as a judge, Crown Attorney, and duty counsel. Court staff perform different roles but ultimately take a “team” approach to addressing and resolving cases. Court support workers play a vital role in connecting the accused with community resources – not only to provide treatment and counselling, but also to assist in securing stable housing, training and employment, and recreational and cultural programming.

The presence and involvement of psychiatrists within the courts means that assessments of mental fitness can be performed promptly, without the accused having to leave the courthouse. Prompt assessments mean that a person’s fitness to stand trial can be determined on his or her first court appearance, rather than over a period of weeks. This in turn means more immediate access to treatment in a hospital setting instead of continued detention in a remand facility.

Justice Heather Perkins-McVey began her involvement with Ottawa’s Mental Health Court when she was a criminal law practitioner, serving on the Mental Health Court Planning Committee. Since her appointment to the bench in 2009, she has continued her involvement with problem solving courts in Ottawa.

Justice Heather Perkins-McVey began her involvement with Ottawa’s Mental Health Court when she was a criminal law practitioner, serving on the Mental Health Court Planning Committee. Since her appointment to the bench in 2009, she has continued her involvement with problem-solving courts in Ottawa.

An estimated 3,000 to 5,000 accused persons pass through Mental Health Court in Toronto each year. Many other Ontario Court of Justice locations have either designated Mental Health Courts or have utilized special procedures in traditional courts for this vulnerable population. Justice Perkins-McVey offered an example of one such procedure in Ottawa’s Mental Health Court – the use of video technology. “Bringing people with mental health issues into the courtroom can sometimes be traumatizing for them. So we have developed a protocol which allows them to remain where they are – in hospital or possibly in jail – and hook up with the courtroom via a video link. This has two positive benefits. It alleviates stress on the person and is often a cost savings for the Court. We are, however, a victim of our own success. We don’t have enough video feeds across the jurisdiction to offer this to everyone appearing in our Mental Health Court.”




Reflections on Serving in Toronto’s First Mental Health CourtIn 2003 – six years after Toronto’s Mental Health Court was established and while it was still the only court of its kind in Canada – a judge, Crown attorney, and defence lawyer offered the following insights on the pioneering effort.

“What is the purpose of the courts of law?” asks Judge Ted Ormston of the Ontario Court of Justice. “It used to be to punish, to deter, to rehabilitate. Now, therapeutic jurisprudence realizes that an element of healing can also be involved. Often, it’s the first time people realize that their sickness has brought them before the courts. They have to deal with it, and the [Mental Health] Court can help in that process.”

In the past two years alone, an estimated 3,000 to 5,000 accused persons, afflicted with a variety of mental illnesses, have appeared before the Toronto court. (The number on any given day ranges from two to 20.) “They may be depressed or psychotic, have Tourette’s Syndrome or engage in manic behaviour,” says senior Crown Attorney Paul Culver. “We see pretty well everything.”

“These are usually people who have gone off their medications or don’t follow their treatment plans,” says Culver. “They are usually charged with nuisance offences, such as breaking windows or stealing from stores.” Violent offenders who are mentally ill are still processed through traditional criminal court.

The Toronto Mental Health Court has rarely, if ever, been the setting for a trial. Rather, it operates in the early stages of the criminal justice process when the accused has a bail hearing. “It was frustrating to see the same people keep coming back in,” says Culver. “One of the few alternatives was not giving them bail. But little could be done with them except lock them up for short periods.

“Now, psychiatrists attend at the courthouse prior to a decision being made on bail. It’s better than the system we had before.” Ted Kelly, who has represented hundreds of clients in Toronto’s Mental Health Court, calls the tribunal “an unqualified success,” praising “the speed with which matters are dealt with when people are ill, the support that they get.”

When mentally ill persons are arrested, they have to be assessed to determine if they are fit to stand trial. Before the Mental Health Court was created, a judge would see them first, then remand them back to the Don Jail; from there, they would go to the hospital about three days later. There they would be seen by a psychiatrist for about 25 minutes, be returned to the Don Jail for another three days and then finally appear in court.

“The round trip took anywhere between 10 and 15 days,” recalls Judge Ormston. “Now, we do that in five or six hours,” because the Centre for Addiction and Mental Health has moved its Brief Assessment Unit to the courthouse, making early assessments possible.

“If they are unfit and need to be assessed for a longer period, or can benefit from treatment, the process whereby they get into the hospital is just far faster,” says Kelly. “And those who are found fit can sometimes be released on [bail] the same day, or the next day, while their charge is before the courts.

“Why is it easier for people to get released? Because there are mental health support workers right there who can assist people and provide them with basic things, like clothing and referrals to community support programs and to shelter.”

While free on bail, the mentally ill offender is required to report back to the court weekly for an extended period. “We encourage them to keep on their programs,” Judge Ormston says. “Then they come back to court monthly. About six months later, when they’re stabilized on their meds and doing well, the Crown Attorney usually withdraws the charges against them. So they’re not criminalized by the process.”

Of course, not everyone who passes through Mental Health Court is able to regain a normal life. “We have our ‘frequent fliers,’” says the judge, referring to the court’s repeat offenders. But he estimates that fewer than 10% of the accused fall into that category. “It’s far fewer than it was previously,” he says, “and we’re finding that their appearances in court are becoming further apart.”

The Mental Health Court, he says, deals with a segment of society that “was formerly slipping through the cracks, as provincial criminal courts are asked to deal with more and more social problems, mental illness being one. They aren’t well treated in the regular adversarial court processes.

“Mental Health Court allows us to step back, close the book and open your heart.”

Since this article was published in 2003, Ted Kelly was appointed to the Ontario Court of Justice in 2013.

(Source: Sheldon Gordon, “Falling through the cracks” Canadian Bar Association National, November 2003.)

Youth Mental Health Courts

As is the case with adults, young people with mental illnesses are significantly over-represented in the criminal justice system. Youth Mental Health Courts were established as part of a pilot project in 2008 at locations including Ottawa and London. A Youth Mental Health Court, called the Community Youth Court, was launched in Toronto in June 2011. The goal of these is to better identify and address the mental health needs of young people charged under the Youth Criminal Justice Act.

The Scope of the Problem: Mental Health Needs of Young People in the Justice SystemStatistics demonstrate that young people with mental illnesses are significantly over-represented in the criminal justice system.
Diagnosis Youth in Custody Youth in General Population
Depression (current)
Anxiety Disorder
Post-Traumatic Stress Disorder
Attention Deficit Hyperactivity Disorder
Conduct Disorder
20-33% estimated
less than 1%
5-10% estimated
(Source: Krista Davis, Michele Peterson-Badali, Tracey Skilling, and The Honourable Justice Weagant, “A Process Evaluation of Toronto’s Mental Health Court for Youth: Preliminary Findings” (summarizing data from BC and Ontario studies of youth in custody)).

Like many of the Mental Health Courts for adult offenders, Youth Mental Health Courts divert young people with serious mental health issues out of the ordinary youth criminal justice system and toward treatment and community and social supports. Crown Attorneys and duty counsel, as well as court workers, conduct assessments and develop treatment plans. Eligibility is assessed based on the circumstances of the young person – in particular his or her likelihood to benefit from participation in the Youth Mental Health Court – and the nature of the offence. Participation is voluntary and the young person may elect to return to ordinary Youth Court at any time.

Indications of Success of Youth Mental Health Courts

Interviews conducted with 34 youth and 11 parent participants in the Toronto Community Youth Court indicated that the majority (78.5%) found the court somewhat or very helpful, and an even greater number (94.8%) found the treatment services to be somewhat or very helpful.

Youth and parents specifically highlighted that in comparison to typical courts the Mental Health Court was less intimidating, more focused on success, provided young people the opportunity to share their story, and was more focused on parent involvement. For example, one youth reported, “they look at who you are, not just what you did.” Another parent reported, “someone finally cared about us as people…the court encouraged and acknowledged his hard work. The judge said ‘I believe in you’ and congratulated him.” These findings suggest that the court has successfully been able to produce an environment of understanding, support, and respect.

(Source: Kristen Davis, A Program Evaluation of Toronto’s Mental Health Court for Youth (Doctoral Dissertation, Graduate Program in Psychology, York University, June 2014), at pp. 51-54.)

Criticisms of Mental Health Courts

Much of the criticism aimed at Mental Health Courts for both youth and adults is indirectly aimed at deinstitutionalization and the resultant criminalization of mentally disordered offenders. According to Justice Richard Schneider and colleagues, Mental Health Courts “attempt to redirect the misplaced responsibility they have for the provision of mental health-care services back to the mental health-care system, where it belongs.” When scarce mental health services are redirected to those who have come into contact with the criminal justice system, it is argued that this creates a perversion in the system where a person’s best bet for obtaining services is to get arrested. These criticisms are equally levelled at other problem-solving courts, including Drug Treatment Courts. Individuals struggling with mental illness, drug abuse and addiction face numerous challenges in accessing scarce treatment resources – resources that, had they been available sooner, might have prevented criminal activity from occurring in the first place.

(Sources: Richard D. Schneider, Hy Bloom, Mark Heerema, Mental Health Courts: Decriminalizing the Mentally Ill (Toronto: Irwin Law, 2007), p. 2, and Canadian HIV/AIDS Legal Network, Impaired Judgment: Assessing the Appropriateness of Drug Treatment Courts as a Response to Drug Use in Canada, October 2011.)

The Building of London’s Therapeutic Court

Justice Deborah Livingstone

Justice Deborah Livingstone

In May 2015, Justice Deborah Livingstone delivered the keynote address at a conference, “Law: Helping Hand or Iron Fist,” held at Western Law School. She focused her remarks on the formation of London’s Mental Health Court:

The daily dockets in Criminal Court, relentlessly long and arduous when I started my judicial career (in 1989), were increasingly filled with people who were sick and sad, because of mental illness. The lawyers and judges whom I worked with every day are not, generally, medically trained. We knew a lot about the Criminal Code, about the Controlled Drugs and Substances Act, about the Youth Criminal Justice Act, but little about diagnosing and treating mental health issues. As my years as a judge ticked by, I became more and more horrified seeing the rise in the number of alleged offenders who were truly sick with mental health issues, who remained in custody detained for weeks, or months, before a fitness assessment was ordered, before a psychiatrist was sent to see them, before a diagnosis could be made.

The dedicated criminal lawyers were observing this too. We started to have meetings about our concerns and we were not the only ones in the justice system who were appalled. Our attempts to appreciate and act upon these phenomena carried us along an interlocking chain of the administration of justice. The Crown lawyers who were attempting to prosecute individuals with mental illness were frustrated. They opened a dialogue for us with London Police Services.

The police, our “front line” on the “war on crime,” were as shocked and saddened as we. If the goal of the criminal justice system is to put “bad guys in jail,” we were failing abysmally. We were putting sick people in jail, more and more of them, for longer and longer periods of time.

What resulted from our collective revulsion at the dissonance in the service we were providing was the creation in London, as in many other jurisdictions, of special “Mental Health Courts.” While the nuts and bolts of Mental Health Courts will vary, integral to the functioning of such a court is a multi-disciplinary team approach. The operation of a Mental Health Court is a collaborative process. We all have our jobs to do, but we do them as a team.

The naming of these courts has been an interesting conundrum. In many jurisdictions they are defined as “problem-solving courts,” which, in theory, promote holistic approaches to sentencing and treatment.

However, as our Court opened, we heard, appropriately, from the participants, the accused, that they did not like to be described as “problems.” And as a judge in that court, I knew I could never “solve” anything – only adjudicate a result.

Referring to the court as a “Mental Health Court” has also been problematic. Offenders, particularly young persons, told us they felt stigmatized if their mental health issues were in the forefront of the description of the courtroom, if they were labeled “mental,” before they could even get in the door. Lawyers wanted to steer their ill clients into the new type of court setting, but very often their clients were uneasy or unable to recognize that mental health issues were the very reason they had ended up charged with a criminal offence.

Consequently, we changed the name of our London Court from Mental Health Court to Therapeutic Court. It’s not a perfect name but it’s the most descriptive of our process.

Rather than exercising a traditional adversarial approach, the goal of the criminal prosecutions in the Therapeutic Court is to improve the lives, not to punish, those individuals with special needs, as well as enhance public safety by identifying the special needs individuals facing criminal prosecution who may be safely diverted from detention or potential incarceration, placing them in appropriate community based mental health and/or other special needs services. This includes ongoing monitoring of their care and their participation without the clinical setting.

The London Courthouse – site of that city’s Therapeutic Court (Photo: Ministry of the Attorney General)

The London Courthouse – site of that city’s Therapeutic Court (Photo: Ministry of the Attorney General)

The team approach in achieving these goals became one of the hallmarks of the London Therapeutic Court – not simply because we were team, but a consistent team. I was the consistent judge in the court for four years.

Since its inception here in June 2007, the Therapeutic Court presides only one day a week. Every Wednesday. It is generally a very busy day, 49 accused on the list last Wednesday for example. It can be an intense day as it addresses a panoply of issues – mental health diversion out of the justice system, bail orders, to get the accused out of custody as quickly as possible and into safe supervised housing, NCR (Not Criminally Responsible) assessments and hearings, treatment orders, guilty pleas and sentencing, plan of care meetings and the inevitable hunt for the illusive hospital bed where a special needs accused belongs in the first place.

No trials take place there. Trials occur in the regular courts. But it is busy for all involved, court staff, cell staff, the lawyers and the therapeutic team, because we will address a number of possible outcomes for the individuals who are directed there. The paramount goal is always to get the individual with mental health issues out of custody as soon as possible if they are fit to be released to stand trial, then to either get them out of the criminal law system into a mental health diversion program if the offences with which they are charged meet the Crown’s criteria, or alternatively, get them connected with the resources they need for a treatment plan which can be part of the Criminal Court sentence which the judge can ultimately impose.

In the Therapeutic Court, the judge and lawyers are supplemented by psychiatrists, psychologists, case workers, social workers, probation officers, to name a few, who collaborate on how the particular needs of an accused person can be met. The needs of the accused are diverse – serious mental illness, developmental disabilities, dual diagnoses (serious mental illness combined with developmental disability) concurrent disorders (serious mental illness combined with co-existing substance addictions), acquired brain injury, dementia and those suffering with the effects of fetal alcohol spectrum disorder.

The benefit of a multidisciplinary team, consistently present and available in Court every week, is that the treatment plan devised can take a variety of forms, and is not limited to simply getting an offender back on his meds. The treatment plan can also include:

• Psychological therapies,
• Educational training,
• Occupational training,
• Access to social services,
• Budgetary counselling, and
• and the “biggie” – housing.

An extremely significant aspect of the Court is our now-realized goal of expediting the process of psychiatric assessments for the offenders who come into the Court, and more frequently, into custody, and then to our Court, who are acutely ill. Because of the presence of the Therapeutic Court in London, there is now a distinct time and place where such acutely ill offenders can be directed and where the professionals are present to efficiently and knowledgeably deal with the legal issues relating to fitness to stand trial or not criminally responsible on account of a mental disorder. The London Court professionals on the team include not only consistent representation from Canadian Mental Health Association, Dale Brain Injury, London Cares, St. Leonard’s, Streetscape, but also a psychiatric nurse as well as a psychiatrist from the Southwest Centre for Forensic Mental Health Care. Now, the Court can determine fitness to stand trial on the day of appearance, as opposed to the usual five-to-seven-day remand in custody, to find a psychiatrist to attend the jail to make the assessment. Before the Court existed, those days in detention, while an assessment was being arranged, were excruciatingly difficult for both the jailers and the prisoner who was usually extremely ill, delusional, paranoid, off his meds, and getting unhealthier by the hour. Having a doctor present at the courthouse to complete the fitness assessment – then and there – is a great step forward.

If a forensic treatment bed is required to get someone back to fitness, until our Court was created, the wait for an available bed often extended for weeks or months. Now, because of the continuing presence and involvement of the medical personal, even though the Court only sits once a week, the team is on top of the psychiatric needs of persons in custody. Consequently there is more readily accessible bed availability – forensic beds are routinely open the day of the next court appearance or, at worse, within a day or two. For the members of our team who work at the jail, or in the cells at the courthouse, who have to house and transport truly sick individuals in custody and who now are part of the Therapeutic Court team because they care so deeply about these ill folks, these changes are nothing less than stellar. And most importantly for the mentally challenged accused, and their loved ones, the creation and continual evolution of Mental Health Courts is a truly remarkable helping hand.

And the progress continues. As a judge of the Ontario Court of Justice, I preside over cases involving young offenders, kids between 12 and 17. As a Youth Court judge, I learned, unhappily, that one in five young people in the justice system had a diagnosable mental health disorder. For years, we would see young people and their desperate parents, once a young offender charge was laid, attempting to advocate for themselves to have the young person’s mental health needs met while the legal issues held centre stage. Once our adult Therapeutic Court took flight, we were inspired and energized to take what we had learned to a whole new level. A new team was developed and we created the first Youth Therapeutic Court in Ontario. The therapeutic team in our Youth Court includes a clinician from the well-respected Centre for Children and Families in the Justice system, otherwise known as the Family Court Clinic, as well as a representative from the Board of Education, and experienced youth probation officers, among others.

Drug Treatment Court

Drug Treatment Courts were developed to address the root cause of many criminal offences, namely drug addiction. The first such court in Canada was established in Toronto on December 1, 1998, several months after the first Mental Health Court began operating. Judge Paul Bentley presided at the first sitting. Drug Treatment Courts opened in other jurisdictions over the next decade, including Ottawa in March 2006. Both the Toronto and Ottawa Drug Treatment Courts received federal funding. There are also a handful of smaller Drug Treatment Courts in Ontario – including in Durham Region, London, Kitchener-Waterloo, Kingston, Windsor and Peterborough – that operate through community partnerships.

Originally, the program was limited to non-violent offenders charged with drug-related offences. In 2004, the Ministry of the Attorney General approved the participation of non-violent drug-dependent offenders charged with non-drug-related offences.[5] Addiction must be the primary reason for offending.[6]

As with Mental Health Courts, participation in the Drug Treatment Court program is voluntary, and individuals who wish to participate must apply for admission. If the Crown determines that the applicant is an appropriate candidate, the application is then assessed by the Treatment/Community Court Liaison, who meets with the applicant to determine his or her substance-use history, previous treatment involvement, family history, community supports and needs, and any possible risk factors.

Prior to the applicant’s first appearance in court, the Drug Treatment Court judge is presented with the assessment information and recommendations from the Crown and defence counsel as well as the court liaison and bail program. The applicant is then brought into court and has an informal, in-court interview with the judge concerning the applicant’s history, motivation for seeking to participate in the program, and understanding of the program requirements and expectations. Because the applicant must plead guilty before entering the program, the Drug Treatment Court judge also confirms that the applicant’s decision to enter the program and plead guilty is voluntary and made with the benefit of legal advice. “If the person signals their willingness and need to bring about change in his or her life, then our Court can have a very big role to play,” stated Justice Beaman.[7]

Once an individual is approved for participation in the Drug Treatment Court program, he or she is required to comply with bail conditions set by the court. These typically include abstaining from drug and alcohol consumption, actively participating in treatment, attending for urine testing as required and attending court as required, and can also include additional conditions tailored to the individual. Participants must report honestly at each court attendance whether they have been compliant with their conditions or “fallen off the wagon.”

Compliance is rewarded with commendations from the bench, increasingly relaxed attendance requirements, and incentives such as movie passes or coffee cards. Dishonesty is met with sanctions including admonishments from the bench, requirements for more frequent court appearances and urine testing, and/or community service orders. Although slip-ups are tolerated so long as the participant remains sincerely committed to achieving abstinence and continues to work toward that goal, repeated or serious non-compliance will eventually result in the individual being removed from the program and his or her matter being transferred back to ordinary criminal court.

Toronto’s Drug Treatment Court in 2003

Paul BentleyJustice Paul Bentley is pictured in 2003 in a photograph accompanying an article about problem-solving courts in the National, a publication of the Canadian Bar Association. He is standing on the dais in a Drug Treatment Court at Toronto’s Old City Hall. According to former Chief Justice Annemarie Bonkalo, Bentley was “a pioneer.”

“Facing significant hurdles, and treading in territory then largely unknown to Canada’s justice system, Justice Bentley led the establishment of the Toronto Drug Treatment Court in 1998. This was, however, only a starting point in his efforts to diminish the cycles of reoffending he saw in his courtroom. He advocated the concept of problem-solving courts: multidisciplinary partnerships between the justice system and the community to promote offender accountability, and to address the underlying issues behind an offender’s appearance before the court. Today, problem-solving practices are now common in Canada’s courts. I am confident that this is due, in large part, to the visionary work of Justice Bentley,” she stated.

Standing to Bentley’s right is former Crown Attorney Kofi Barnes, who was, in 2003, the most active Crown in that Court. (Barnes was appointed as a judge to the Ontario Court of Justice in 2004 and then to the Ontario Superior Court in 2013). On Bentley’s left is Shelley Addley, the duty counsel who was representing most of the accused at Toronto’s Drug Treatment Court in 2003. The article, entitled “Falling Through the Cracks,” detailed the positive response to Toronto’s Drug Treatment Court:

“Judge Bentley cites strong support for the program among community groups, on the one hand, and the police service, on the other. ‘We must be doing something right,’ he observes, ‘because politically, they’re at opposite ends of the spectrum quite often.’”

(Source: Sheldon Gordon, “Falling Through the Cracks,” Canadian Bar Association National, November 2003.)

Completing the Drug Treatment Court program can be a lengthy process. By the time a participant is eligible to “graduate,” he or she will typically have been in the program for at least 10 months and often much longer. Criteria for graduation vary somewhat but generally include completion of all phases of treatment, abstaining from all drug use for a period not less than three months, securing appropriate housing, and engaging in work, school, or volunteer activities. Far from being a “get out of jail free” card, completing the Drug Treatment Court program often takes much longer than serving the sentence a “traditional” court would impose and requires meeting more stringent conditions. Perhaps not surprisingly, more than half of those admitted into the program fail to complete it. “But even those who don’t graduate have learned important life skills that they can apply in their lives,” explained Beaman. “I feel it is the role of our Court to do this work. The old model of a court as a distant and untouchable entity is no longer appropriate in today’s society.”[8]

Concerns About Drug Treatment Courts

No one disputes the value of seeking to address the root cause of drug-related petty crime. And few would quarrel with the proposition that traditional approaches have proven inadequate. Still, questions remain whether Drug Treatment Court is the best alternative. Some critics see the Court as a drain on resources given the relatively small number of participants – and the even smaller number who complete the program. Others challenge the requirement for total abstinence. They argue that harm-reduction and health-centred approaches ought to be prioritized over participation in Drug Treatment Court. Concerns have also been raised about the erosion of the due process protections that are guaranteed to accused persons in ordinary criminal courts. In particular, critics have objected to the requirement that participants plead guilty at an early stage – possibly before they get full disclosure of the Crown’s case and fully informed legal advice – as well as the fact that defence counsel and the Crown work as part of the same “team,” alongside the judge and treatment providers, rather than in a traditional adversarial relationship.

Judges who sit in Drug Treatment Court grapple with such questions every day, as evoked in a 2010 Ottawa Citizen article on the Ottawa Drug Treatment Court.

Not everyone is sold [on Drug Treatment Court]. Some critics have a problem with the prerequisite guilty plea. Others wonder if there’s not a better way to spend the million dollars in federal cash and court resources that it takes to run the Ottawa program each year.

Justices Judith Beaman and Peter Wright have been with Ottawa’s drug court since its inception four years ago. They are well aware of the tension. “You are using limited resources on a few people who have a dubious track record of success,” says Beaman.

In regular criminal court, petty offenders are kept at a distance. In drug court, judges, prosecutors and defence lawyers get to know the regulars who are required make a weekly appearance. “Most judges aren’t comfortable with that degree of connection or intimacy,” Beaman explains. “They feel they have more authority if they keep their distance. It’s not everybody’s cup of tea and we’re not trained for it.”

It doesn’t help that there are no one-size-fits-all solutions. “I had an expectation that it would be easier to cure addictions,” says Wright. “I had an expectation that success would be measured by graduations. Never having been an addict, I underestimated the degree of difficulty in overcoming addiction.”

He says he’s come to recognize the value of the program – even to those who don’t graduate.
“They may have gone from using crack every day to some lesser drug occasionally. Before we started, I wouldn’t have viewed that as a success,” he says. “I do now.”

Beaman agrees that small steps are worth celebrating.

“Just getting people clean of drugs for however long they can – two weeks or three weeks – is something,” she says. “If they have had a period of abstinence, they are more likely to return to treatment and are more likely to give another program a try. When they are in a program, they aren’t committing crime, which means the saving of thousands of taxpayers’ dollars.”

Beaman says it takes more than a residential treatment program to wrestle free from crack. “There are so many other aspects to an individual’s life – their family, their housing, their work, their health. So many people come with mental health difficulties and it’s hard to say whether it predated the drug problem or whether it’s a consequence of the drugs.”

She dismisses the notion that the prerequisite guilty plea stigmatizes addicts. “Some people call it coercive, but I’ve come to grips with that,” she says. “People coming into the program already have lengthy criminal records. We’re not taking anyone with a clean slate by any stretch. It’s also harder than staying in the regular system and people absolutely don’t have to do it.”

Addicts in the program get fast-track access to top-class treatment, she says. “It’s been shown that having the stick of the court system and the close supervision of someone in authority helps. Even if they don’t graduate, we take a look at what they did in the program and it can mitigate the sentence.”

There’s no denying the tension: Crown prosecutors feel the court is too lenient. Defence lawyers think the opposite. “We can’t step outside of our roles completely,” Beaman says.

First Graduate of Hamilton’s Drug Treatment Court Shares his Experience

In June 2015, Carmelo Tinebra wrote about his experiences as the first graduate from Hamilton’s Drug Treatment Court at the Ontario Court of Justice.

I want to express my gratitude to everyone who made this new court program a reality. Thanks to them, I have the chance to live a healthy life free from drugs for the first time since I was 12.

To be honest, when my lawyer mentioned there was a new diversion program that I might qualify for, where if I was accepted I would go through recovery rather than face jail time, I wasn’t thinking about ending my addiction. I just didn’t want to go to jail.

In Drug Treatment Court you have to meet with your case worker every single day and go before a judge every week. Initially, it felt very tedious, but after time passes it becomes easier.

The program was a good motivation, too. You can’t graduateand stop going to court every weekuntil you’ve been clean for six months. If you use you have to start the clock all over again.

Drug Treatment Court gives people a shot if they show an interest in changing. Everyone involved with the programthe case workers at Mission Services, the judge, all of the people you’ll meet along the waythey will help you change if you want to. You’ll have an opportunity to straighten out your life plain and simple.

(Source: Carmelo Tinebra, Hamilton Spectator, June 25, 2015, p. A13.)

Community Treatment Court

Several “Community Treatment Courts” have opened across Ontario in recent years. Like Mental Health and Drug Treatment Courts, these are also designed to be therapeutic courts. The emphasis in Community Treatment Court is on people suffering from mental illness or drug addictions or both. The Halton Community Treatment Court is one example. Launched in 2012, it was developed through the cooperation of local Crown Attorneys (both provincial and federal), the defence bar, local police, mental health treatment providers. Aiming to provide early intervention, the Court integrates mental health workers into the system to improve access to services for people appearing before it. Acknowledging that the legal system can be confusing and intimidating, the Court aims to be less formal than a traditional court. Accused persons deal with only one judge during their visits to Halton’s Community Treatment Court in order to establish a degree of familiarity between judge and that person. “Familiarity often engenders trust, which is a first step to understanding and rehabilitation.”[9]

Justice Paul Bentley: A Problem-Solving Pioneer

Justice Paul Bentley was the first judge to sit in the Toronto Drug Treatment Court (TDTC) in 1998, and continued to advocate for increased and innovative partnerships between the justice system and the community until his death in 2011. In 2009, Bentley described the experiences that led him to embrace a problem-solving approach.

Before the [Toronto Drug Treatment Court] started, I sat as a judge at the Old City Hall courthouse in Toronto, where wave after wave of sad and homeless persons paraded before me, many with severe drug addictions. As part of my sentences, I routinely imposed counselling for substance abuse as a component of a probation order. Invariably, weeks or months later, I would see the same offenders back before me on new charges. When I asked them about the effectiveness of the drug counselling they had received, I would be met with blank stares and comments to the effect that after serving sentence, they had received no counselling. I grew more and more frustrated with the recycling of criminally addicted offenders through our courts and jails and began looking for alternatives. The Drug Treatment Court model was the alternative that seemed to hold the most promise.

Those words were reprinted in a National Judicial Institute publication on Problem-Solving in Canada’s Courtrooms, along with a memorial by then-Chief Justice Annemarie Bonkalo, who paid tribute to Bentley’s “belief in dignity and kindness, his confidence that those brought before the justice system could change their lives for the better, and his highly-respected efforts in advancing problem-solving practices in Canada’s courtroom and beyond.” Bonkalo wrote, “Today, problem-solving practices are now common in Canada’s courts. I am confident this is due, in large part, to the visionary work of Justice Bentley.”

(Source: Susan Goldberg, “Problem-Solving in Canada’s Courtrooms: A Guide to Therapeutic Justice” National Judicial Institute, 2011, pp. v-vii.)

Gladue and Aboriginal Persons Courts

In 1999, the Supreme Court of Canada heard a case about the sentence imposed on an Aboriginal woman who pleaded guilty to manslaughter after stabbing her common-law husband. That case – R. v. Gladue[10] – noted that Aboriginal people are drastically over-represented in the Canadian prison population, calling this “a crisis in the Canadian criminal justice system.” Gladue Courts were created as one element of the Ontario Court of Justice response to the Supreme Court of Canada decision.[11]

“In the Gladue decision, the Supreme Court considered section 718.2 of the Criminal Code, which directs that “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.” In coming to this decision, the Supreme Court considered the “circumstances of aboriginal offenders” which often include systemic and background factors that may have played a role in bringing the particular offender before the courts. Further, the Supreme Court considered the types of sentencing procedures and sanctions that would be appropriate for Aboriginal offenders.[12]

The implementation of these goals has varied in courts across Canada and within the Ontario Court of Justice. Specialized Gladue Courts, which are intended to facilitate the judge’s ability to consider the circumstances of Aboriginal offenders, were created in some larger urban centres in southern Ontario. In these communities, the Aboriginal population, while significant in absolute terms, made up a relatively small percentage of the entire population of the wider community. In these communities, Gladue Courts made it easier for the justice system to ensure necessary Gladue information was gathered and placed before a sentencing judge. These courts also allowed a number of justice system participants to concentrate the resources needed to produce appropriate Gladue outcomes in one, specialized court.

Justice Rebecca Shamai

Justice Rebecca Shamai

Justice Rebecca Shamai was one of the Ontario Court of Justice judges involved in the 2001 launch of the first Gladue Court in Ontario at Old City Hall in Toronto. She terms the work of these Courts both “collaborative and restorative,” having written extensively about her experiences.

In 2001, the Gladue [Aboriginal Persons] Court opened in downtown Toronto, sitting half a day a week. [in 2014], the Court is in session two full days every week, and there are four other such courts across Toronto, including an Aboriginal Youth Court. Other similar courts operate in other locations in Ontario. The first step in the Court has been to identify the Aboriginal persons coming before the Court. In a diverse city like Toronto, identification is not an easy matter. Given the devastation done to family and cultural structures through previous government initiatives, many have been unsure of their identity…Second, the Gladue principles are applied to bail, as well as to sentencing…. The most difficult aspect is implementing restorative justice. Restorative justice may mean providing substance abuse counselling or treatment, housing, family reconciliation, job skills or education upgrading…In Toronto’s Gladue Courts, the agreement between Crown prosecutors and Native Court workers facilitates the diversion of certain offences and offenders to a Community Council, with a stay of criminal charges entered in court…The availability of resources to address substance abuse and poverty issues is often at the core of the success of the court.”[13]

As with other problem-solving courts, participation is voluntary and an Aboriginal accused always has the option to have his or her matter dealt with in an ordinary criminal court.

Different approaches have been adopted in Ontario’s two northern regions to ensure the decision in R. v. Gladue is properly implemented. In these regions, Aboriginal people make up a very significant percentage of the population. Many of the region’s smaller communities have a primarily Aboriginal population. “In the north, every sitting of the Court has to be a Gladue court sitting,” explained Justice Marc Bode, who sits in Thunder Bay.

Justice Marc Bode

Justice Marc Bode

Since the release of the Gladue decision, the Court has worked with the Aboriginal leadership and others in the justice system to tailor the court process so it properly serves the needs of Aboriginal people. “In many northern communities, judges meet regularly with First Nation Elders, chiefs and council members, seeking their input on how the justice system can better meet the needs of their community. In some cases judges seek input from Elders on how best to fashion a sentence that promotes a reconciliation between the accused, the victims of crime and the community as a whole. In many northern urban communities the Court has supported the development of better, more frequently used, diversion options for aboriginal offenders, particularly youths charged under the Youth Criminal Justice Act,” explained Bode.

In the north, the Court has also worked with the defence bar, Legal Aid Ontario, probation and parole services, a number of Aboriginal organizations, with bands and with treaty councils to ensure the Gladue information placed before a sentencing judge is sufficient to give the judge a proper understanding of the circumstances of the accused and a good sense of all the sentencing options available. “On this front, much has been accomplished since the Gladue decision was released. At the same time, the Court recognizes that much more still needs to be accomplished, particularly in terms of developing better non-custodial sentencing options that promote healing and reconciliation,” concluded Bode.

Communicating Effectively – An Example from a Gladue Court

When judges speak directly to court participants – and, in turn, listen to them – they can inspire trust, motivate change, give people a sense of voice and dignity, enhance healing and make court procedures more meaningful to those before them.

But what does all of this really mean? The following account describes a case which exemplifies the problem-solving approach.

In 2014, Justice Shaun Nakatsuru released written reasons for a sentencing decision he had made as a judge sitting in Gladue Court. The decision directly addresses the intractability of the many of the problems that both an accused person and the Court face. The reasons also demonstrate a determination to continue to innovate, to listen, and to try again – which exemplify the approach taken by all problem-solving courts.

Nakatsuru’s decision in R. v. Armitage was written in plain language and addressed directly to the accused, Jesse Armitage, a 29-year-old Aboriginal man who had been engaged in minor but repetitive criminal offences, primarily property crimes and breaches of court orders. Nakatsuru frankly admitted that he found Armitage’s case to be challenging.

If I could describe Mr. Armitage as a tree, his roots remain hidden beneath the ground. I can see what he is now. I can see the trunk. I can see the leaves. But much of what he is and what has brought him before me, I cannot see. They are still buried. But I am sure that some of those roots involve his aboriginal heritage and ancestry. They help define who he is. They have been a factor in his offending. They must be taken into account in his sentencing.

It is also obvious that this tree is not healthy. The leaves droop and appear sickly. It does not flourish regardless of the attention paid upon it. The tree needs healing.

A part of any sentencing for an Aboriginal offender is to see if there is a way to further that healing. Of the offender and of the community he lives in.

Nakatsuru imposed a conditional sentence that allowed Armitage to serve his jail time in the community.

Justice Nakatsuru’s judgment in Armitage attracted considerable attention from media and commentators such as Adam Dodek, an associate professor, Faculty of Law, University of Ottawa, who praised it for its clarity and use of plain language. In Dodek’s words, “It demonstrates the importance of humility for judges; of empathy with those who appear before the judge; and of the virtue of simplicity in judgment writing.” Those values are, of course, not confined to specialized problem-solving courts, but ideally inform the work of judges throughout the Ontario Court of Justice.

(Sources: R. v. Armitage, 2015 ONCJ 64 (Can LII), and Adam Dodek, “In Praise of Judicial Empathy, Humility and Simplicity,” Slaw: Canada’s online legal magazine (16 April 2015).)

Integrated Domestic Violence Court

Integrated Domestic Violence Court, launched as a pilot project in Toronto in 2011, is somewhat different in nature from the other problem-solving courts. While endeavouring to respond effectively to the problem of domestic violence, Integrated Domestic Violence Court also seeks to correct a challenge inherent within the justice system: the fact that criminal and family law cases are ordinarily heard separately – by different judges, in different courtrooms – even if the issues and people overlap. Integrated Domestic Violence Court is thus intended to address both the social and the administrative problem.

Before Toronto’s Integrated Domestic Violence Court opened, cases involving domestic violence were frequently spread among three different courts, with criminal judges of the Ontario Court of Justice hearing assault charges, family judges of the Ontario Court of Justice addressing child welfare issues, and Superior Court judges dealing with divorce and property settlement matters.[14] Families dealing with domestic violence would therefore have to attend at multiple courts on multiple days in the process of having their issues heard. In addition to being difficult to navigate, this approach was fraught with delay and – because information was not shared among the various courts – with inconsistent orders and outcomes. For example, bail conditions and access arrangements prescribed in different judgements might conflict, requiring return visits to court for resolution – or, in a worst case scenario, exposing vulnerable family members to further harm.

In an interview conducted when the Integrated Domestic Violence Court opened in June 2011, Justice Geraldine Waldman, who had spearheaded efforts to establish the Court, described the prevailing situation in the Law Times.

“What’s interesting is the fact that notwithstanding that we’re dealing with the same litigants and the same situations, we have these two systems that overwhelmingly operate as silos independent of each other without cross-referencing one to the other.”

For example, bail orders affect access arrangements, leaving judges like Waldman trying to decipher them and how they might be a factor in family law rulings.

She also found she was often dealing in an “information vacuum” in which none of the parties knew the parameters of such bail orders. In other cases, bail terms were overly restrictive and difficult and created further complications on the family law rulings.

“On the other hand, I often felt that I had information that the criminal-side judge would really like to have in terms of understanding more fully and robustly what was going on with this family,” says Waldman.

So while both family and criminal law judges were individually doing their job adequately, Waldman feels there were untapped opportunities to work together for families.

“That was no one’s fault; it’s just that the system was created in a way that made it difficult for us to work together,” she says.[15]

In Integrated Domestic Violence Court, a family experiencing domestic violence will appear before a single dedicated judge for both the domestic violence criminal charge and family matters – including custody, access and support – which will be heard on the same day.[16] The Integrated Domestic Violence Court judge will therefore have more complete information about the family and be able to make consistent criminal and family court orders. The family will also have access to various supports and services within the justice system, including the Family Law Information Centre, the Victim/Witness Assistance Program, and Partner Assault Response.

The launch of the Integrated Domestic Violence Court at the 311 Jarvis Street courthouse in Toronto was greeted with enthusiasm by a variety of justice system participants.

“We think that [a one-case, one-judge structure] will lead to a more integrated, holistic approach, a greater understanding of what the issues are in the family and more consistent orders, ” said Peter Griffiths, the associate chief justice of the Ontario Court of Justice.

In the existing system, families dealing both with issues in family court and with a domestic-violence-related charge must navigate two different processes, going at different speeds and with the potential for conflicting orders. If one spouse is charged with domestic violence and the other is seeking custody of children, for example, the two courts could be issuing conflicting orders.

“The concept of an integrated court is wonderful because that really meets the needs of women, ” said Lisa Manuel, the director of the family violence program at Family Service Toronto.

It can be a challenge to physically navigate between the two courts because in some cities they’re not even in the same building, let alone trying to deal with the stress of such situations, she said.

Ms. Manuel said she has heard of instances where, to comply with both a custody order and a restraining order, one parent takes a child to a parking lot and the other parent is waiting at the far end. The child then has to walk from one end to the other so neither of the orders are violated, she said.[17]

The Integrated Domestic Violence Court got off to a slow start, hearing only a handful of cases in its first sittings, although Justice Joseph Bovard, one of the judges assigned to the Court, indicated in an August 2011 interview that this was not surprising.

“We only sat once before, and we had to cancel the court the other times because there were no available cases. But we expected it to start slow,” he said. “We haven’t been deluged with cases, because it is such as novel concept to Canada.”

“It will take some education before people get up to speed,” he said. “There is definitely some confusion about how the court is going to run, but we will get there.”[18]

Justice Ellen Murray sits regularly in Toronto’s Integrated Domestic Violence Court.

Justice Ellen Murray sits regularly in Toronto’s Integrated Domestic Violence Court.

In July 2015, Justice Ellen Murray, who sits in Integrated Domestic Violence Court, reflected on her work in that Court.

“I have heard lawyers say that their clients feel safer in the process (in Integrated Domestic Violence Court) than they otherwise would be. It is helpful for a judge to be more informed rather than less informed. Because I have so much more information, I feel we can provide a tighter safety net for people. I can be much more responsive because I know so much more about all the dealings the people before me are having within the justice system. For example, I control bail variations and I’m also responsive to parents who are accused in criminal cases when it comes to making access decisions concerning the safety of their children.”[19]

As the Integrated Domestic Violence Court continues to be evaluated, a February 2015 editorial in the Toronto Star provided the following perspective.

The Integrated Domestic Violence Court in Toronto, the first of its kind in Canada, was set up in 2011 to resolve the lack of communication between family and criminal courts. It’s an issue that was flagged as a serious problem by the province’s Domestic Violence Death Review Committee in 2004.

As Dr. Peter Jaffe, a member of the committee, explains: “You shouldn’t put a family in five or six different proceedings with multiple judges. Not only is it ineffective, it’s also dangerous.”

More study is needed to ensure that having one judge handling both criminal and family proceedings, with their different standards of proof, is not prejudicial to the accused. But so far the court is receiving positive reviews.

The integrated court in Toronto has not been around long enough or handled enough cases for final conclusions to be drawn.

Still, a study of a similar joint court in Buffalo, N.Y., found that many of the benefits that were hoped for actually happened, “making victims safer and holding the defendant more accountable.”[20]

Problem-Solving Approaches Beyond Problem-Solving Courts

The values of specialized problem-solving courts are not confined to these courts. Almost all of the judges who preside over specialized courts also spend part of their time sitting in “traditional” court as well, and carry the lessons of problem-solving courts into their work more generally.

Justice Peter Hryn, who presides over both Drug Treatment Court and traditional criminal court in Toronto, describes the changes he’s made as a result of his exposure to Drug Treatment Court.

The Criminal Code states that before imposing sentence I’m required to ask the offender if he or she has anything to say. That conversation is now different after my experience in the Toronto Drug Treatment Court. I ask more questions and get more information. If the offender has a gap in his or her record, I ask about that. “Why were you clean and out of trouble for five years? What do you need to do to get back to that state now?” Or, I look at the offences on the record: if there is a telltale pattern of addiction, I will wonder out loud if there’s a problem with drugs or alcohol. Often, the offender will say there is.[21]

Judges Judith Beaman and Ellen Murray explain that the lessons they learned while judging in problem-solving courts have helped them by bringing a “wider range of skills to their work” in traditional courts.[22]

Justice Heather Perkins-McVey points to the many benefits that have arisen stemming from the collaborative approach adopted by the many community partners – organizations providing housing, treatment and community recreational programming, for example – as a result of the introduction of problem-solving courts throughout Ontario. “They have learned to work together, and we, as a Court, have learned to work with all of them to support those who appear before us.”[23]

Problem-Solving Strategies That Can be Transferred to the Traditional Courtroom

1.      A proactive, problem-solving orientation that treats court participants as individuals and seeks creative solutions to problems.

2.      Direct engagement with participants through eye contact and clear communication, including providing opportunities to ask questions and seek clarification.

3.      Individualized screening and assessment to identify issues such as substance abuse, mental illness, and literacy and language difficulties.

4.      Therapeutic sentencing that includes risk-management strategies and relapse-prevention plans.

5.      Ongoing judicial supervision that keeps judges informed and offenders and litigants accountable.

6.      Establishing connections and partnerships with social service agencies to more effectively refer offenders to appropriate resources and supports.

7.      Monitoring compliance to evaluate the effectiveness of various interventions.

8.      Prompt information sharing to ensure that litigants and family members understand court processes and are able to prepare and file any necessary paperwork.

9.      A team-based, non-adversarial approach.

10.  Courthouse training and education to enhance awareness about both the systemic factors that often underlie criminal behaviour and problem-solving responses.

11.  Community outreach to provide information about and enhance public understanding of court processes.

While some of these strategies can only be put in place through policy changes and co-ordinated efforts, many others can be easily integrated into the existing, day-to-day work of the traditional courtroom.

(Source: Adapted from Susan Goldberg, “Problem-Solving in Canada’s Courtrooms: A Guide to Therapeutic Justice” National Judicial Institute, 2011, pp. 23-24, citing Porter, R., M. Rempel, and Mansky, A. (2010). What makes a court problem-solving? Universal performance indicators for problem-solving justice. New York, Center for Court Innovation.)


Many would argue that problem-solving has been an explicit part of the work of the provincial court for over a century. Juvenile courts created under the Juvenile Delinquents Act and the Toronto Women’s Court could be seen as early examples of specialized courts that took an explicitly problem-solving approach to cases, and sought to understand and respond to the persons who appeared before them not simply as isolated individuals but in their broader social context. And while enthusiasm for specialized courts has waxed and waned over the years, problem-solving has always been an aspect of the day-to-day work of the court.

Whether specialized problem-solving courts will continue to be established and expanded remains to be seen. Given the relatively recent introduction of these courts, analysis of their long-term effectiveness awaits – along with a thorough examination of what works and why. There is no doubt, however, that a desire to address the underlying causes and symptoms of criminal behaviour and family breakdown will continue to animate the work of judges and to drive innovation in the court processes and administration of the Ontario Court of Justice.

Traditional Versus Problem-Solving Courts

Traditional Approach Problem-Solving Approach
Goal is resolving the dispute Goal is resolving the underlying problem
Uses an adversarial process Uses a collaborative process
Judge acts as an arbiter Judge acts as a coach
Backward-looking Forward-looking
Few participants and stakeholders Many participants and stakeholders
Legalistic Commonsensical
Formal Informal
Success is measured by compliance Success is measure by remediation of underlying problem
(Source: Susan Goldberg, “Problem-Solving in Canada’s Courtrooms: A Guide to Therapeutic Justice” National Judicial Institute, 2011, p. 4.)
  1. Interview of R. Schneider for OCJ History Project, 2015.
  2. Interview of J. Beaman for OCJ History Project, 2015.
  3. D.J. Farole, Jr., N. Puffett, M. Remple, & F. Byrne, Applying Problem-Solving Principles in Mainstream Courts : Lessons for State Courts, The Justice System Journal, Vol. 26, Number 1 [2005].
  4. The Ontario Court (Provincial Division) became the Ontario Court of Justice in 1999.
  5. TDTCP Policy and Procedures Manual, August 13, 2008, pp.3-4.
  6. TDTCP Policy and Procedures Manual, p. 7.
  7. Interview of J. Beaman for OCJ History Project, 2015.
  8. Interview of J. Beaman for OCJ History Project, 2015.
  9. Stephen D. Brown, “Halton Community Treatment Court Background,” April 12, 2012.
  10. [1999] 1 S.C.R. 688.
  11. [1999] 1 S.C.R. 688.
  12. R. v. Gladue at para 66.
  13. Rebecca Shamai, “Gladue Courts,” Provincial Judges’ Journal, Summer 2014, pp. 47-49.
  14. Family law matters are heard in the Ontario Court of Justice, the Superior Court of Justice, or the Family Court branch of the Superior Court of Justice, depending on the issue in dispute and location in the province. Where the Family Court branch exists (also known as Unified Family Court), the Court hears all family law matters, including divorce, division of property, child and spousal support, custody and access, adoption, and child protection applications. In all other sites across the province, family law matters are divided between the Ontario Court of Justice and the Superior Court of Justice. The Ontario Court of Justice hears family law disputes that fall under most Ontario legislation. Issues include: custody, access, child and spousal support, adoption and child protection applications. The Ontario Court of Justice does not decide divorce or division of property matters. The Superior Court of Justice can decide family law disputes involving divorce, division of property, child and spousal support, and custody and access. The Court does not hear adoption and child protection matters, except on appeal.
  15. Robert Todd, “Domestic violence court opens”, Law Times (20 June 2011).
  16. Divorce and property matters will still have to be heard by the Superior Court of Justice.
  17. Allison Jones, “Court integrating domestic violence, family court cases opens in Toronto” The Globe and Mail (10 June 2011).
  18. Tamara Baluja, “A bumpy start for a new style of family court” The Globe and Mail (1 August 2011).
  19. Interview of E. Murray for OCJ History Project, 2015.
  20. “Integrated domestic violence court can help families: Editorial” Toronto Star (4 February 2015).
  21. Susan Goldberg, “Problem-Solving in Canada’s Courtrooms: A Guide to Therapeutic Justice” National Judicial Institute, 2011, p. 28.
  22. Interview of J. Beaman for OCJ History Project, 2015.
  23. Interview of H. Perkins-McVey for OCJ History Project, 2015.