530 THE ADVOCATE
VOL. 77 PART 4 JULY 2019
tal illness within the legal community. It will bring us that much closer to
a new normal where the experience of having a mental illness is viewed not
as a liability, but as a strength.
1. Le Dain is noted on the Supreme Court of Canada’s
website as having “retired on November 30, 1988”.
The circumstances surrounding Le Dain’s forced
retirement were brought to light by his family over a
decade after his death in 2007. See Bonnie Brown,
“‘He Didn’t Have a Choice’: How Depression Cost
Gerald Le Dain His Supreme Court Post”, CBC News
(15 January 2018), online: <www.cbc.ca/radio/the
2. See Tim Wilbur, “Confronting the Unseen”, Canadian
Lawyer Magazine (4 February 2019), online:
3. The Supreme Court was then led by Chief Justice
Antonio Lamer, as the Right Honourable Brian Dickson
retired on June 30, 1990.
4. 1991 1 SCR 933 Swain.
5. Criminal Code, RSC 1970, c C-34, s 542(2).
6. Supra note 4 at 973–74.
7. This included replacing “not guilty by reason of
insanity” with “not criminally responsible on account
of mental disorder” and removing the phrases “natural
imbecility” and “disease of the mind”. Note,
however, that “disease of the mind” still appears in s
2 of the Criminal Code as the definition for “mental
8. Before Bill C-30, the lieutenant governor of each
province could, but was not required to, appoint an
advisory board to review and provide input regarding
the cases of insanity acquittees held in custody.
9. Gichuru v The Law Society of British Columbia (No
4), 2009 BCHRT 360 at paras 460, 463–68.
11. Law Society of British Columbia, News Release, “Law
Society Responds to BC Human Rights Tribunal Decisions”
(19 July 2011), online: <www.lawsociety.bc.
“LSBC News Release”. See also the current
Law Society Admission Program Enrolment application,
pdf> (on which effectively the same question
12. See LSBC News Release, supra note 11; Gichuru v
The Law Society of British Columbia (No 9), 2011
BCHRT 185, Appendix A.
13. See Provincial Court of British Columbia, “Celebrating
the 10th Anniversary of Vancouver’s Downtown
Community Court” (7 November 2018), online:
14. In the wake of Swain and Bill C-30, the number of
mentally ill accused going through the court system
increased ten to fifteen per cent a year. See Donalee
Moulton, “Care Cash, Not Court Cash: Judge”, The
Lawyers Weekly (25 November 2011).
15. See Richard D Schneider, “Mental Health Courts and
Diversion Programs: A Global Survey” (2010) 33:4
Int’l JL & Psychiatry 201; Sue-Ann MacDonald et al,
“Mental Health Courts: Processes, Outcomes and
Impact on Homelessness" (May 2014), online:
FinalReport_2014.pdf>. For a history of mental
health courts in Canada, see Emily Slinger & Ronald
Roesch, “Problem-Solving Courts in Canada: A
Review and a Call for Empirically-Based Evaluation
Methods” (2010) 33:4 Int’l JL & Psychiatry 258;
Richard D Schneider, Hy Bloom & Mark Heerema,
Mental Health Courts: Decriminalizing the Mentally
Ill (Toronto: Irwin Law, 2007).
16. See Megan Stephens, “Lessons from the Front Lines
in Canada’s Restorative Justice Experiment: The
Experience of Sentencing Judges” (2007) 33:1
Queen’s LJ 19 at 64.
17. See British Columbia, Ministry of Justice, Specialized
Courts Strategy (March 2016) at 8–9, online:
Courts Strategy; Tammy Seltzer, “Mental
Health Courts: A Misguided Attempt to Address the
Criminal Justice System’s Unfair Treatment of People
with Mental Illnesses” (2005) 11:4 Psychol Pub Pol’y
& L 570.
18. As Emily Slinger and Ronald Roesch have pointed
out, existing evaluations are site-specific, providing
little insight into the overall effectiveness of mental
health courts as a type of court system. See supra
note 15 at 260–61. See also Specialized Courts
Strategy, supra note 17 at 10.
19. 2012 NLCA 26.
20. See Mental Health Commission of Canada, Making
the Case for Investing in Mental Health in Canada
(2013) at 1, online: <www.mentalhealthcommission.
21. See Centre for Addiction and Mental Health, “Mental
Illness and Addiction: Facts and Statistics”, online:
22. See ibid.
23. The study involved approximately 1,200 attorneys in
Washington State and is, to date, perhaps the most
widely cited research on substance use and mental
health concerns in the legal profession: G Andrew H