Mental Health & The Criminal Justice System: Advocating For Fair Treatment


A study from the Mental Health Commission of Canada, released in 2020, paints a stark picture of the intersection between mental health conditions and the criminal justice system.

40% of people living with mental health problems are arrested at least once in their lifetimes. 73% of incarcerated men and 79% of incarcerated women meet the criteria for a current mental illness.

The problem is getting worse; the percentage of inmates who meet the criteria for mental illness is going up, not down. These intersectional issues run deep—racism, intergenerational trauma, and poverty all interact with mental illness and criminality. These interactions can create scenarios where employment, mental health support, and community support become difficult to obtain or lean on, which can lead to criminal behaviour, higher recidivism rates, and other problems. 

The Intersection of Mental Illness and Criminal Justice

Providing support, keeping people with serious mental illness out of the criminal justice system, and untangling the deep systemic issues which cause people with mental illnesses to be incarcerated at disproportionate rates requires a multifaceted approach. We cannot address all of these issues in this article (though we highly recommend you read the study we linked above). What we can do, however, is provide an overview of the roles and responsibilities defence lawyers can take on to advocate for people with mental illness.

What a Defence Attorney Can Do

Identify and Advocate

The first step an attorney can take is to identify that mental health issues may have played a role in the alleged offence. This may include how their client acted, how police officers, witnesses, and alleged victims may have behaved, and more.

From there, the defence attorney can advocate for certain psychological evaluations, reframing the alleged offence in the context of their client’s mental illness. 

Construct Legal Defences

Once the role that mental illness may have played in the alleged offence has been established, an attorney may employ a number of different legal defences, such as that their client is not criminally responsible due to a mental disorder. The “not criminally responsible” defence is just one of many defences that can be employed once it has been established that a client was suffering from mental health problems when an alleged offence was committed. 

Argue for Diversion Programs and Mental Health Courts

There are several programs that exist as a means of keeping people out of the criminal justice system and out of prison. Diversion programs can keep addicts (addiction is a form of mental illness) away from prison, placing them instead into rehab centres. Mental health courts can provide a number of supports to people suffering from serious mental health issues. In Manitoba, we have a mental health court: The Winnipeg Mental Health Court

Advocate for Better Sentences

An attorney can advocate for better access to mental health for their client, asking to incorporate treatment options into the sentence. They may also ask for a more lenient sentence in light of their client’s struggles with mental health. 

Advocate for Better Policies

Lawyers are in a strong position to advocate for policies that help people who suffer from mental health conditions. They may have a bigger platform, more resources, and more connections than the average Canadian, and their day-to-day work advocating for people with mental health concerns in the criminal justice system gives them a unique perspective. 


At Brodsky Amy & Gould, we are staunch advocates for mental health reforms, both within the criminal justice system and at large in Canadian society. Looking for a Winnipeg criminal lawyer with a deep understanding of the intersection of mental health and criminal justice? Call us today.