The Attorney General of Ontario is trying to challenge the recent certification of a class-action lawsuit over the practice of jailing mentally ill people charged with crimes until they undergo a mental health assessment.

Key to the government's argument is the timeliness of the mental health assessments. Despite the fact an assessment order is made, the government says immediacy is not something that can be promised, according to the Criminal Code of Canada.

The grounds for the motion state the court made several errors of law.

"The court erred in law ... in concluding there is a triable issue as to whether the Respondent is obliged to ensure that a bed be 'immediately' available in a treatment or assessment facility for every accused person awaiting a mental health assessment ordered pursuant to under s. 672.11 of the Criminal Code."

On Nov. 10, 2004, Ontario Superior Court Justice Robert Desmarais found the practice of jailing people in such cases illegal, unconstitutional and in breach of the Charter of Rights and Freedoms.

On Aug. 28, Judge Michel Charbonneau accepted the class-action application, stating the criteria of the class-action suit has been met and therefore should go ahead.

Since Judge Charbonneau's decision, the Ontario government has been ordered to disclose the names of all individuals who were subjected to an assessment order and who may have spent time in jail awaiting a hospital bed -- a number Joe Obagi, lead counsel for the plaintiff, claims exceeds 2,000 people in the province of Ontario.

However, this week's challenge by the government aims to quash the class-action certification, recoup costs of the motion, and remove the order to "produce to the plaintiff's counsel the names and addresses of all known class members together with any information regarding the incarceration of such individuals while awaiting an assessment under s. 672.11 of the criminal code."

Mr. Obagi has stressed the government was given six months to rectify the situation from the Nov. 10, 2004, date, but says "people continue to be incarcerated while awaiting psychiatric assessments, notwithstanding the declaratory order of the Superior Court of Justice, which ruled such conduct to be unconstitutional."

Such is the case of the plaintiff, Sylvie Phaneuf, a Deep River resident with mental health problems who was arrested on a charge of criminal harassment. She was jailed at the Ottawa-Carleton Regional Detention Centre in 2005, when a judge ordered authorities to take her at once to the Royal Ottawa Hospital to have her mental state assessed and determine whether she was criminally responsible for her actions. However, when a hospital bed was not immediately available, she was held at the detention centre for 16 days awaiting accommodation. The class-action suit states she was mistreated while in detention.

Others in similar situations have died in jail or deteriorated in a detention centre to the point they become too sick to stand trial.

© The Ottawa Citizen 2007