Addiction. Poverty. Mental health. Those are the real challenges facing Ontario’s justice system, retired judge warns

Having presided almost exclusively at Toronto’s Old City Hall courthouse since 1987, she describes a dramatic shift in the types of cases handled by the provincial court over her long career.

In more recent times, the court has had to take on an increase in what some might call “social work,” she said.

In other words, accused persons who are not necessarily hardened criminals but who appear in court with a history of substance-use disorders, mental health issues, homelessness, or sometimes all three.

With little to no access to the supports they need — including in jails — they come back to court again and again.

“It’s very difficult and frustrating as a judge when you know someone has a substance-use issue or a mental health issue and doesn’t have housing, so it’s like what do you do?” she said.

“You can’t expect someone, for example, to be part of a counselling or treatment program if they don’t have a roof over their head.”

‘Our mission is to keep them out of the justice system’

With the courts again being called on to be tougher on accused persons in the wake of seemingly random attacks on the public, Hogan says what’s actually needed for public safety is affordable housing, access to more supports, and education for judges.

She says the system needs to start taking a hard look at diverting even more cases — including serious ones — out of the traditional criminal system, so people can get support and rehabilitation rather than jail time.

It’s a stance that puts her at odds with the provincial government, which recently announced over $100 million for police to better monitor potentially dangerous people on bail, as well as for dedicated prosecutors for complex bail hearings.

“More cases should be taken out of the criminal justice system,” she said. “We have to be prepared to take risks and start looking at more serious cases to divert as well, but again, it comes back to resources … They need to have resources and supports in the community.”

If accused people “get the necessary help now and get some housing, the public is probably safer than if they go to jail, do some time, and have no assistance.”

Judges rarely grant interviews, even once retired, but Hogan said she wants to call attention to systemic failures in the justice system.

She says she’s worried that the Ontario Court of Justice is going backward on some of the strides it made in the late ’90s and early 2000s when it first established specialty courts — including drug-treatment and mental health courts, and Gladue court for Indigenous persons.

The job of the provincial court has changed significantly, but the system hasn’t necessarily adapted. In the old days, the challenge might be described as the domain of “social work,” Hogan said — “To a certain degree, I guess it is social work, but it is our work now.”

How is a person meant to comply with bail conditions when they don’t have housing, when their ID and phones get regularly stolen, when encampments are getting dismantled? Hogan asks. Invariably, they get re-arrested and are back in court, she said.

She draws a parallel between the justice system and the health care system amid Toronto’s worsening housing crisis. Just as some hospitals are now having to get creative to support the influx of people experiencing homelessness coming through their doors, so too are the courts.

“Their mission is to keep people out of the emergency room,” Hogan said. “Our mission is to keep them out of the justice system.”

‘Society’s problems’

Hogan became one of the first women to serve on the provincial court’s criminal bench in 1987. She had previously worked as executive director of Parkdale Community Legal Services, focusing on housing and landlord and tenant issues.

She left the court to serve a brief stint as deputy attorney general of Ontario in the early ’90s, only to be re-appointed to the bench in 1992. Hogan retired earlier this year.

Over the last 36 years, she said she’s witnessed positive changes, notably an increase in the diversity of the court’s judges — more women, more people of colour, more people from the LGBTQ+ community.

When she first arrived, she was pregnant with her third child, and there was no formal policy of paid maternity leave for judges. “I was out of the hospital on a Friday and back here with the baby on the Monday,” Hogan said. “My secretary watched her for me while I was sitting in court.”

The other female judges at the time were primarily in family court, and Hogan helped organize with them to secure paid mat leave for judges.

As the years went on, Hogan noticed the court was being asked more and more to deal with “society’s problems that really aren’t criminal in nature.”

She partly attributes this to the process of deinstitutionalization that kicked off in earnest in the ’60s and ’70s, when many psychiatric hospitals and in-patient beds were closed and patients were transitioned into the community. It’s something that Hogan said she absolutely supports, as it provides people with more autonomy.

But governments “didn’t do the other half of it,” Hogan said, “to provide the resources and accommodations and everything else needed when coming out of the institution.”

Specialty courts

Hogan had a reputation around Old City Hall for delivering sentences that generally led to little or no jail time. Nicknames included “Minimum Mary,” “One-Day Mary,” “Saint Mary,” and “Mother Mary.” The police once held a press conference on the courthouse steps denouncing her sentences, and officers would pack her courtroom.

“I would walk by them in the halls, and they used to say in not such a soft voice, ‘There she is,’” Hogan recalled.

“I didn’t feel that jail did a lot for anyone, and we simply warehouse people,” she explained. “Mental health issues, and both alcohol and drug addiction, are not dealt with by sending somebody to jail.”

It was in the late ’90s that specialty courts came into existence as a way to shut the revolving door of individuals coming into court. Hogan presided in both the drug-treatment and mental health courts at Old City Hall, and was the lead judge in the former for years.

Drug-treatment court involves individuals with a substance-use disorder who are facing non-violent criminal charges, with their disorder at the root of the crimes. A person typically needs to first plead guilty in order to access the court and can avoid jail by participating in the programming offered.

Hogan said she readily acknowledges the criticism levelled at drug-treatment courts, including the requirement of guilty pleas and the limitations on who is allowed in.

She says the Crown, the gate-keeper in drug-treatment court, needs to let in more people, including those charged with more serious offences. The court also needs more staff and sitting days. It was cut down from two days a week to one at Old City Hall prior to the pandemic, she said.

Mental health court at Old City Hall sits every day, and involves people who are often very ill. Like drug-treatment court, the mental health court generally only accepts cases involving non-violent offences, where the person’s diagnosis has a connection to the crime.

Unlike drug-treatment court, a person doesn’t have to plead guilty to gain access. They work on a treatment plan with health professionals and could ultimately have their charges withdrawn.

Concerns for the future

When the specialty courts were first established, Hogan said there were consistent staff for significant periods of time: judges, Crown attorneys, duty counsel and clerks. She said that’s crucial in successfully helping someone who is already extremely anxious about being in court, something she said is backed by the evidence.

Over the last decade, “this consistency has been seriously eroded,” with more frequent rotation through those courts of judges and duty counsel, she said. It is now also unclear if the Crowns will be consistent going forward, Hogan said.

Without connection and consistency, “it’s not a specialty court,” she said.

The courts need to return to a model of having consistent staff, she said. Her concern is that the senior court administration fails to recognize that consistency is imperative to the success of those courts, and has not shown support for their long-term viability.

“I feel like we’ve taken giant steps back when we really should be moving forward,” Hogan said.

Hogan’s focus on consistency is something other experts have noted amid the tumultuous changes to Toronto courts. Old City Hall will be shutting down at the end of this month, with its caseload merged into the new mega-courthouse nearby on Armoury Street.

Having the same court staff assigned to similar cases “is important because to work in this setting, you must have an idea and be educated about the various diagnoses that most of our clients struggle with,” said Joyceline Sobers, senior manager of the mental health court support program with Fred Victor, a social service organization that works with people who are homeless.

The Ontario Court of Justice said in a statement that it is a “strong advocate” for specialty courts. “The court is constantly reviewing the courts and making the necessary adjustments needed to ensure their success.”

The court also said that with the amalgamation of Toronto’s provincial criminal courthouses almost complete, “the scheduling of the specialty courts will be back to normal,” though refused to say what that means.

Meanwhile, Legal Aid Ontario said it has increased the number of duty counsel — lawyers who assist unrepresented accused persons — who rotate through the specialty courts over the last few years.

A further concern of Hogan’s is for the future of the downtown east justice centre — one of four programs associated with provincial courts in the province — that she led in her final years on the bench.

The centre, which Hogan said only sits Thursdays and is virtual, is meant to connect individuals with services including health, housing and employment support, to ultimately have their charges withdrawn and reduce their risk of re-offending.

“These are people in the revolving door,” she said. “This is the third or fourth time they’ve been in the criminal system in the last six months, and the crimes are more minor, but they’re pretty broad, and the root of the crimes are mental health issues, problematic substance use issues, poverty.”

Hogan said the centre needs to be running more frequently with a physical location, and there should be one in every jurisdiction. “The resources were supposed to be wraparound, so they could walk out of the courtroom and go next door and immediately access all the necessary supports,” she said.

Finally, Hogan says judges need annual education on more than just “hard law,” but on the issues that are causing so many people to come before them in court.

“There is so much education to be done, and we as judges need that education,” she said. “Because we are now faced with dealing with these cases.”

Hogan stayed on longer than anticipated so she could get the justice centre up and running. After more than three decades on the bench, she said she will especially miss the people who appeared in front of her.

“I’ve learned so much from them,” she said. “They are incredibly resourceful and resilient, and most of them still have hope.”