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