Toronto Star

‘I feel like we’ve taken giant steps back’

- STEVE RUSSELL TORONTO STAR

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 drugtreatm­ent 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 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 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 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 reoffendin­g.

“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.”

 ?? ?? Retired judge Mary Hogan says the justice system needs to look at diverting even more cases out of the traditiona­l criminal system, so people can get support and rehabilita­tion rather than jail time.
Retired judge Mary Hogan says the justice system needs to look at diverting even more cases out of the traditiona­l criminal system, so people can get support and rehabilita­tion rather than jail time.

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