Man remains stuck in a forensic mental health system some say is biased against Black people

Five years ago, 20-year-old Mark Waweru, then a student at Wilfrid Laurier University in Waterloo, Ont., and a budding hip hop artist, had his first psychotic episode.

It's a night that changed the course of his life and left him locked in the forensic mental health system in Ontario for more than four years — a system in which Black people are overrepresented, according to Waweru and a number of defence lawyers with expertise in the field.

"The hardest thing to grasp was just the time that I lost when I could have been doing productive things in the community," said Waweru, who is Black.

On Feb. 6, 2016, Waweru, who is now 25 and lives in London, Ont., had just wrapped up his first performance in Niagara Falls, Ont.

That's when the night took a turn.

According to Waweru, he boarded a bus to Toronto without any money. The notes from his most recent disposition at the Ontario Review Board describe what happened next.

They say Waweru, who had no prior criminal record, threatened someone in a York University dorm room, boarded a Toronto public transit bus telling the driver he intended to rob him and told a female passenger, "Talk to me or I'll rape you."

Waweru was arrested as he got off the bus and charged with two counts of robbery and one count of uttering threats. After spending the night in jail, he was transferred to the Centre for Addiction and Mental Health in downtown Toronto to be assessed on his ability to stand trial. He was prescribed antipsychotic medication, deemed fit for trial and released on bail after 28 days.

"My lawyer's advice was to take a plea called not criminally responsible. It's called NCR," said Waweru, who as a result was then placed in the forensic mental health system. "I was under the impression if I was in the NCR system that I would not have a criminal record."

He also thought he wouldn't have to live in a hospital. "I was not explained these things when I went to my first board [hearing]," he said. "I didn't know what the system was like."

But a year after he was released on bail, the Ontario Review Board — which makes decisions on the fate of those who have been found by a court to be either unfit to stand trial or NCR due to a mental disorder — checked back in with Waweru and decided he wasn't doing well. So he was admitted to the Southwest Centre for Forensic Mental Health Care in St. Thomas, Ont., where he was diagnosed with schizophrenia.

Waweru would stay there for two years. He was finally released, subject to conditions by the review board, on May 6, 2019.

Black people face obstacles in system: lawyer

Anita Szigeti, a Toronto lawyer and president of the Law and Mental Disorder Association (LAMDA), estimates there are 1,800 to 2,000 accused in the forensic mental health system in Ontario — and while it's an approach that works for some, for others like Waweru, it doesn't.

People of colour are overrepresented in the system, said Szigeti, who is co-author of the forthcoming book A Guide to Mental Disorder Law in Canadian Criminal Justice.

Race-based statistics currently aren't available, but Szigeti said she came to that conclusion from her extensive experience and research.

"There's definitely racial bias in how people with serious mental health issues end up in hospital," she said.

"And I can say in my 28 years at the bar, based on that experience, I certainly have a lot more Black, male, young clients in the forensic system. They tend to come from the criminal justice [system], and where does it start? With the over-policing of Black communities," she said.

"I see security called ... and restraints and seclusion employed vis-à-vis Black accused under the forensic system more often than I observe it in relation to white accused persons in the system," said Szigeti, who said she believes the board should be collecting race-based data.

"Does that mean that it takes you longer to get out of the system? I would say probably."

In a statement, the chair of the Ontario Review Board said the board does not keep data regarding race or ethnicity, and has no plans to.

"It is a demographic that is often unclear or mixed, eluding clear identification," said Justice Richard Schneider in an email to CBC News.

However, Schneider said, "it would be a reasonable hypothesis that to the extent particular groups may be overrepresented within the criminal justice in general, they may be similarly overrepresented within the forensic system."

Szigeti said there's another problem with the forensic mental health system: There's no cap on how long someone can be in the system, and that means "the potential for indefinite secure detention in a secure psychiatric facility, which in many ways is prison-like for some people, depending on the level of security."

The review board, which determines when someone is moved out of the hospital or given an absolute discharge, bases that decision on whether the person poses a significant risk in the community.

"Historically, on balance, the review board has taken a very risk-averse view to determining when someone continues to pose a significant risk," Szigeti said.

"Even if their ... offence was very minor, they might find themselves detained and within the system for decades," she said.

"I think most of the general public would be shocked if they understood the kind of time people spend detained. It's really shocking."

Court of Appeal decision significant

There has been some headway on this. In September 2017, the Ontario Court of Appeal overruled a review board decision and granted a Hamilton man, who was represented by Szigeti, an absolute discharge from a local hospital after he had been found not criminally responsible six years earlier.

The court essentially decided that a person who has a mental illness isn't necessarily going to be dangerous.

While the court found that the man had on occasion been "rude, disrespectful, verbally abusive and verbally threatening," he had not been "physically violent nor has he caused psychological harm."

The judges also determined that he hadn't been violent since 2004, was taking his medication and was getting treatment.

"The risk that he will abuse marijuana and commit additional offences if he is given an absolute discharge is substantial," the court said, but not substantial enough for him to be deemed a significant threat to the public.

Szigeti said that since the ruling, "the Court of Appeal has been very consistent in trying to provide guidance to the Ontario Review Board."

"To meet the significant risk threshold to keep people within the review board system, it's a very onerous test, and the individual must be likely to commit a serious criminal act if they are discharged."

Concern that someone might stop taking their medication, use recreational drugs or even commit a petty crime is not a serious risk to the community, Szigeti said.

"There are people in that system who are in it for years on simple threat charges or mischief charges — very minor events that really surprise anybody in terms of the length of time that people can be detained. You can literally be in a hospital for life," said Steve Gehl, a Waterloo lawyer who currently represents Waweru.

The system is often touted as therapeutic, he said. "But it sure as hell doesn't look that way to people who are in it.... Most of the people in the system feel they are being punished," he said.

Two years in a psychiatric hospital

The Ontario Review Board decided to admit Waweru into the mental health facility in St. Thomas, about 30 kilometres south of London, in the fall of 2017, citing such factors as disorganization, impulsivity and two instances where he consumed alcohol, something the board said he couldn't do.

"At first it's kind of hopeless because you can't really do anything. You just kind of sit in a hospital ward. You get your meals and stuff like that, and it's basically a ... semi or less restricted prison," Waweru said.

Doctors adjusted his medication and Waweru did his best to adhere to the board's demands.

"I was able to really focus on getting out of that system, which was very hard," he said.

"I was literally stalemated and have to come to terms with how do I salvage this time that I lost? I was young when it happened," he said. "There are some people who have been there for 10-plus years and they're still in the hospital."

Waweru said he also believes his race has played a role in how long he was in the hospital.

"There are people who have had very serious charges who got out before me. From what I observed, people of colour are disproportionately treated there and they have to work a lot harder to get out."

His next hearing before the board won't be until next year, when he'll ask for an absolute discharge from the system.

"I expect to tell the review board that he's doing very well and there's no need to keep him in the system," Gehl said.

"At the last review board, they were very complimentary to him because of his significant efforts to make himself better, but also this guy is a really talented kid," he said.

Waweru, who remains on antipsychotic medication, is working as a part-time server at a London restaurant and hopes to finish his degree at Western University in the near future. He's also just released his debut hip hop album, Gardens.

"He's got great potential. He's got lots to offer, lots to do. He's a musical whiz. He's doing great. And going forward, I expect him to do very, very well. I think this kid is going to really succeed."