Specialized Courts of the Ontario Courts of Justice

Preamble 

The Ontario Court of Justice (OCJ) operates specialized or therapeutic courts dealing with domestic violence, mental health, problematic substance use and Indigenous issues. 

These courts have emerged as non-traditional responses to specific critical issues such as problematic substance use, the prevalence of domestic violence, the over representation of Indigenous Canadians in our custodial institutions, and the obvious need for a focused and nuanced approach to dealing with mentally disordered accused persons. They have been created, and individually tailored, to address the variety of needs in our multi-facetted communities.

Research has repeatedly demonstrated that therapeutic courts have produced dramatically successful results for the populations they serve, thus benefitting the entire community by reducing both recidivism and incarceration rates. They have become an essential element of the OCJ’s commitment to serve the most vulnerable Ontarians.

As well, these courts are diverse, and frequently reflect adaptation to local conditions. They also foster a multi-sector team approach and apply evidence-based practices which help address social determinants of health, reduce recidivism, reduce crime severity, increase public safety and reduce higher risk interactions with law enforcement personnel. Meetings and court appearances occur in-person or using a combination of online and in-person (“hybrid”) appearances.

Drug Treatment Courts

Drug treatment courts provide court-monitored treatment, trauma-informed support, and an alternative to incarceration for some of the most vulnerable and difficult to engage participants in the criminal justice system. This multi-sector team approach aims to reduce recidivism, reduce crime severity, address detrimental social health, increase public safety and reduce higher risk interactions with law enforcement personnel.

In most jurisdictions Drug Treatment Courts serve accused persons by engaging in 3 primary activities:

1. Pre-court meetings: Prior to court sessions, members of the judiciary and the client’s treatment team meet to discuss needs, progress, confidential information, and treatment plans.
2. Direct interaction between the judicial officer and the client: Primarily occurring during regularly scheduled court appearances, these multi-functions check-ins build therapeutic rapport; address practical issues such as bail variations, releases on bail, and guilty pleas; apply sanctions and incentives; review and acknowledge progress; and reinforce treatment plans and court expectations.
3. Community/treatment Services: Central to the Drug Treatment Court model are the services of community partners. These are provided throughout the process, in pre-court meetings, court appearances, and between court appearances. These services typically include treatment, counselling, case management and practical supports. The frequency, intensity, methods and structures of the support services will vary from jurisdiction to jurisdiction but will operate within established best practices for Drug Treatment Courts.

Mental Health Courts

The first Mental Health Court in Canada opened 22 years ago, in the Ontario Court of Justice at Old City Hall in Toronto in response to a need to better respond to the unique challenges faced by those with mental health disorders.  These courts have become a fundamental component of our criminal justice system, allowing for a more compassionate and effective response to those who encounter that system due to their mental health struggles.  This response reduces recidivism and in turn protects the community.

It is important to bear in mind that there are a variety of mental health court models. As well, the various support agencies that assist Mental Health Courts vary widely from court location to court location. In other words, each Mental Health Court is customized to fit the needs of the local community that it is serving and the services that are available in the local community.

Although there are a variety of Mental Health Court models, they all share the following commonalities:

• All Mental Health Courts have designated days of operation.
• Most Mental Health Courts have some form of eligibility criteria, in order to determine which clients will be able to participate in Mental Health Court’s processes and programs.
• There is usually dedicated legal staff, such as a dedicated Judge, Crown Counsel and Duty Counsel, who are trained or specially assigned to Mental Health Court.
• Often there is specialized Mental Health Court support staff, such as Mental Health Court Workers, for Mental Health Court.
• One of the main shared elements of Mental Health Court is Mental Health diversion.
• ‘Fitness to stand trial’ is also a significant part of the work that Mental Health Court addresses.

Community Support Courts 

These courts operate in order to address the needs of persons who are charged with a criminal offence and who are suffering from either an addiction or mental health struggles.  The purpose of these courts is to provide more compassionate and effective responses to these cases. Community Support Courts are similar in nature to Drug Treatment and Mental Health Courts but are more expansive in that they can provide services for both mental health and addiction issues. For example, these courts are supported by community agencies and support workers who can provide services including alcohol or substance abuse counseling, mental health assessments and referrals to psychiatrists, housing support and life skills support.

Persons before the court who want to be considered for Community Support Court must make an application to the local Crown Attorney.  The court workers or duty counsel can help people who do not have their own lawyer in making the application. Once a person is admitted to Community Support Court, an assessment of their needs will be completed by the court workers, and a treatment plan will be developed.  The person’s case then gets adjourned while they work on their treatment plan.  Usually, they will have a number of check-in dates with the court while this is happening.  Once the person has completed their treatment plan, their case will be completed.

Integrated Domestic Violence Court 

Integrated Domestic Violence Court (or “IDVC”) is a specialized court which helps families going through a criminal domestic abuse charge and a family separation at the same time. Usually, in these types of situations, two courts are involved: the criminal domestic abuse charge is heard in the criminal court by a criminal judge and the family separation proceeding is heard in the family court by a family judge. However, in this specialized court, IDVC’s goal is to make it easier for the family by not having to go to two separate courts with two separate judges, but rather attend at one court (IDVC), with one judge (an IDVC judge) that hears both these matters at the same time.

IDVC first opened in 2011, in downtown Toronto, at the 311 Jarvis courthouse. It is the first and only one of its kind in Canada and has the honour of being studied by other countries wishing to set-up a similar type of specialized court.

Benefits of IDVC 

Some of the benefits of attending a streamlined IDVC court are:

• The parties must only travel to one court location, instead of two.
• It reduces the amount of time the parties must attend court.
• Parties don’t have to repeat their story in two separate proceedings
• The judge will have more information about the family and the situation of the accused person.
• The IDVC judge can make sure that any bail conditions ordered for the accused do not conflict with the family law parenting time order (formerly known as an ‘access’ order).
• Having one judge hear both the family and criminal matters, instead of two, allows the judge to understand the family problems better and to make more wholistic orders that work best for that particular family.
• The IDVC judge will be better able to monitor the family’s situation, which increases the accountability of the accused and enhances the safety of the complainant.

Overall delays are reduced, and the parties can receive court decisions quicker, because instead of waiting for decisions from two different judges, you can get all your decisions from one judge.

Who is eligible for IDVC? 

Currently, IDVC is only available to parties who have a family and a criminal matter before one of the Toronto courthouses listed below:

 

Family courthouses: 47 Sheppard Avenue East OR 311 Jarvis Street

            PLUS

Criminal courthouses: New Toronto Courthouse OR Old City Hall

 

In addition to having your family and criminal cases being heard at one of the above locations, the following criteria below also must be met:

The family Case

• The family case must deal with decision-making responsibility (formerly known as custody), parenting time (formerly known as access), support or a restraining order.

The criminal Case 

• The criminal case must be a summary conviction charge involving alleged domestic violence. A criminal charge where the Crown elects to proceed by summary conviction is a summary Conviction offence. The accused cannot be in jail.

NOTE that IDVC can not hear matters that deal with divorce, the division of family property or child protection cases.

What Does IDVC Do?

Family Matters

• IDVC will hold case conferences, hear motions and may conduct short trials.

Criminal Matters

• IDVC will hear bail variation applications, conduct pre-trial meetings, accept guilty please and may also conduct trials.

Indigenous Peoples’ Court/Gladue Court

The Origins of Indigenous Peoples’ Court

Indigenous Peoples’ or Gladue Court came into being in response to two major legal developments. First, was the introduction into the Criminal Code of section 718.2(e), which was enacted to address the chronic over-representation of aboriginal persons in the penitentiary population. This provision makes it mandatory for sentencing judges to consider all available sanctions, other than imprisonment, when sentencing aboriginal offenders:

“(e) 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.”

The second major legal development was the Supreme Court decision of R. v. Gladue [1999] 1 S.C.R. 688, which not only clarified how a sentencing judge is to apply section 718.2(e) (now known as ‘Gladue Principles’), but also the mandatory application of s. 718.2(e) to sentencing.

Even though all Canadian criminal courts are required to apply Criminal Code section 718.2(e) and the ‘Gladue Principles’ from R. v. Gladue, through time, various provincial court systems throughout Canada have developed specialized ‘Gladue Courts’ as a more effective means of bringing together legal and social services that specialize in Indigenous rehabilitation. The Ontario Court of Justice is proud to have several Indigenous Peoples’/Gladue Court sittings throughout our province.

Indigenous Peoples’ or Gladue Courts: Different Names, But Same Court

Some court locations prefer to refer to these specialized courts as ‘Indigenous Peoples’ Courts’ while other locations prefer to refer to them as ‘Gladue Court’, after the Supreme Court case R. v. Gladue [1999] 1 S.C.R. 688.

What is Indigenous Peoples’/Gladue Court?

Indigenous Peoples’ Court, which is also known as Gladue Court, is a specialized court that handles the cases of Indigenous persons who have been charged with a criminal offence. Indigenous Peoples’ Courts are Canadian Courts that apply Canadian law (e.g., the Criminal Code and case law), but also include Indigenous cultural practices and Indigenous concepts of justice, such as restorative justice. These specialized courts specifically focus on sentencing, and in some locations, also bail and case management. They do not handle trials or preliminary hearings.

Indigenous Peoples’ Courts, or Gladue Courts, are not available in every courthouse. All Canadian courts are required to apply Gladue principles and relevant Criminal Code sentencing and bail principles regardless of whether a matter is heard in an Indigenous Peoples’ Court or a regular court.

Bail and Sentencing

Both bail and sentencing hearings are conducted in Indigenous Persons’ Court. In the case of bail, the Court takes into consideration ‘Gladue Principles’ through the application of section 493.2(b) of the Criminal Code, which requires a judge or justice making decisions about bail to give particular attention to the circumstances of Aboriginal accused to ensure that pre-trial detention is not imposed unnecessarily. Guilty pleas and sentencings are also conducted in Indigenous Persons’ Court. During sentencing, the court will consider and apply Gladue principles and the personal circumstances of the accused. Gladue principles are discussed in further detail below.

Why We Have Indigenous Peoples’/Gladue Courts

Although all Canadian criminal courts are required to apply ‘Gladue Principles’, some Ontario Court of Justice criminal court locations have applied to the Chief Justice to have a specialized court scheduled, as it has considerable support of local agencies and stakeholders supporting Indigenous people. In seeking approval of such a court, stakeholders propose that having a specialized ‘Gladue’ or ‘Indigenous’ sentencing and/or bail court is more meaningful, and effective from a rehabilitative perspective. Indigenous/Gladue courts are also an efficient and effective way to gather all the interested stakeholders and resources in one place to better facilitate the goals of the courts.

How is Indigenous Peoples’/Gladue Court Specialized?

Gladue Court has a number of elements that make it specialized. First, all Judges, Crown and Duty Counsel, along with other participants in Indigenous court, have an interest in learning about Indigenous peoples and working with them in a collaborative way.

Second, Indigenous or Aboriginal Court workers are assigned to work with each Indigenous accused. Sometimes this might include helping to organize a Gladue report, which is a type of pre-sentencing or bail hearing report, that the court can request, when considering sentencing or bail for an Indigenous offender. The Gladue report attempts to give a wholistic account of the offender’s personal history and of the systemic factors affecting Indigenous persons who appear before the court.

Third, Indigenous Peoples’ Courts are Canadian Courts that apply Canadian law, but they also include Indigenous cultural practices and Indigenous concepts of justice, such as restorative justice.

An example of how an Indigenous Peoples’ Court is specialized is exemplified by the crafting of plans to support an individual applying for bail, and for rehabilitative purposes on sentencing. Also, when the accused chooses and when time and resources allow, the court may proceed with a sentencing circle, incorporating a person’s supports and elders, as available to assist in the sentencing process. A rehabilitation plan suggested by community agencies or elders must then be considered by the judge, who retains the discretion to decide whether to move forward with those recommendations or modify them.

As well, formal diversion programs with local agencies may be established. If the Crown has agreed to divert charges to the formal diversion program, charges may be stayed up front. In other regions, the Crown will withdraw the charges after the diversion is completed. This specifically allows for Indigenous community agencies to engage in the rehabilitation of Indigenous persons. Some elements of a rehabilitative plan of care may include access to harm reduction, sweat lodges, support for anger management, counselling for substance abuse, housing, vocational training and work experience.

Additional Available Resources

In some jurisdictions, Indigenous Court workers are available to assist in developing plans of release and supporting diversion for Indigenous accused. Gladue report writers are also available in some jurisdictions. Gladue reports are prepared after a finding of guilt has been made, when the Crown’s position on sentence is a custodial sentence over 90 days and a report is ordered by the court. Gladue reports provide a comprehensive overview of an Indigenous accused’s background and provide detailed sentencing recommendations for the court.

Gladue Principles Apply to Indigenous youth

All Canadian criminal youth courts are also required to apply Criminal Code section 718.2(e) and the ‘Gladue Principles’ from R. v. Gladue. While there is a specialized Aboriginal Youth Court at 311 Jarvis Courthouse in Toronto, in the rest of the province Gladue principles are applied by youth court judges in regular youth court sittings.