Special courts
Special courts and processes may be available to those with minor charges, or who struggle with mental health, addictions, or are Indigenous.
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There are many drawbacks to utilizing special court systems.
Special courts are often only offered to people who have minor charges - often leaving those with substantial charges without special support or consideration when it comes to race, disability, or neurodivergence. In this way, the criminal legal system divides those along lines of disability & race creating "ideal offenders". While that means some receive special treatment in the short-term, it comes at the cost of villainizing those with more serious charges or mental health issues and leaving those individuals open to more punitive means. If you enter into a special court of diversion based around your mental health and breach it - even if the reasons for breaching are because of mental health - then you're likely to become one of those individuals who gets punished more severely. In some cases, the use of mental health courts or diversion can leave you subjected to long-term supervised released where there may be conditions like taking medication or attending programming.
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Sometimes, those within the criminal legal system (CLS) and the public also use the existence of such systems to justify the over-incarceration and collective punishment of Black, Brown, Indigenous and disabled peoples without ever addressing the systemic roots of those issues.
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We encourage you to do your own reading - check out our "External Readings" page for some suggested materials.
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Diversion
Diversion is a type of “extrajudicial measure” (EJM) and is when criminal charges are dealt with outside of a courtroom. Extrajudicial measure just means “a measure outside the court” – so there is no guilty plea or trial.
When successfully completed, diversion results in the withdrawal of charges against you. If you don’t complete your responsibilities, your charges may be brought back to the court.
Diversion programs are individualized, but usually include one or more of the following:
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community service
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a charitable donation
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anger management counselling
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addiction or mental health counselling
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writing a letter of apology
Access to diversion is usually based on your criminal record, the seriousness of your charges, and the cost of going to trial compared to the seriousness of your offense.
If you qualify for diversion, you are usually offered it at your first appearance, but sometimes you or your lawyer can try to convince the Crown to offer you diversion during resolution meetings.
There are separate diversion programs for adults, for youth, and for Indigenous peoples.
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Mental health diversion
Mental health diversion is difficult to get, and usually only offered to those with substantial mental health issues that caused “a break in reality” and whose mental health is part of the reason they committed a criminalized act.
Mental health diversion often forces you to obtain treatment either supervised through a community treatment order, or in-hospital.
You will still need to attend some scheduled court dates, but if you qualify for mental health diversion, you won’t have to plead guilty or go to trial.
Mental health diversion is voluntary. The Crown or your lawyer can't force you to agree. If you prefer the regular court or diversion process, you can say no to mental health diversion. Some people prefer the regular court process because it is usually faster and doesn’t risk being hospitalized.
In Hamilton, Mental Health Court Support Services are facilitated through the local branch of the Canadian Mental Health Association (CMHA). They also offer an Intensive Case Management program for people who are not eligible for mental health court diversion. The CMHA-Hamilton office is located inside the criminal courthouse.
Mental Health Court Support Services
John Sopinka Courthouse
45 Main Street East
Hamilton, ON, L8N 2B7
Phone: 905-645-5252, extension 3662
Fax: (905) 521-0211
E-mail: info@cmhahamilton.ca
If you’re interested in applying for mental health diversion, talk to your lawyer, court worker, or duty counsel.
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Drug treatment court
Drug Treatment Court (DTC) is a program for people that struggle with drug addiction. The idea is that if you treat your addiction, you're less likely to commit a crime again.
Unlike diversion programs, DTC usually requires a guilty plea. If you're accepted, you're placed on bail while you complete the program. If you relapse while on the program, you may be sent to jail. After completing the program, you will be put on probation. If you breach the conditions of your probation you may incur additional charges and face jail time.
DTC is for people who are:
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charged with non-violent offences
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currently use street drugs like opiates, cocaine, and methamphetamine, and
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are charged with a crime primarily because of their addiction.
The DTC program is not for alcohol addiction. There are other disqualifying factors, such as charges for violent offenses, high level drug dealing, DUIs, break and enters, and causing harm to someone under the age of 18.
While in DTC, you must:
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participate in treatment programming
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go to court regularly, usually at least once a week
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try your best to stay off drugs and be honest about using
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try not to commit more crimes or breach your bail
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continue to attend court for one to three years
DTC usually takes one year minimum to complete, but it can also take much longer. After you graduate from DTC, the judge will sentence you to a period of probation.
Talk to your lawyer or duty counsel if you are interested in applying for DTC.
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Gladue court & principles
Gladue Court, also known as Indigenous People’s Court, is a special court for people charged with a criminal offense and who self-identify as Indigenous, Métis, First Nations, or Inuit. Gladue Court is also called Indigenous Peoples Court.
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Gladue Courts deal with all criminal offenses but they only handle bail and sentencing hearings. Gladue Courts don't handle trials or preliminary hearings.
Gladue Courts often try to incorporate Indigenous cultural practices and understandings of justice. For example, a Gladue Court might start with a smudging ceremony or have Elders or Knowledge Keepers start with a song or prayer. However, Gladue Courts are still Canadian courts that apply Canadian law.
Gladue court is different, but similar, to Gladue principles.
Gladue principles are a set of legal principles that aim to address the over-incarceration of Indigenous peoples in so-called Canada. ALL courts must apply Gladue principles during bail and sentencing hearings, whether or not it is taking place within Gladue Court.
Gladue principles mean that ALL courts must take into account:
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your Indigenous background
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the impact and history of discrimination against Indigenous people by Canada and the criminal justice system, also called systemic discrimination.
All alternatives to detention or jail must be considered before a detention or a jail sentence is given.
Sometimes a formal Gladue Report will need to be prepared. Legal Aid Ontario has a list of publicly-funded Gladue report programs on their website.
In the Hamilton area, you can access letters and reports through Aboriginal Legal Services and the Ontario Native Women’s Association. Some Nations also provide Gladue workers to qualifying First Nations members.
Speak to an Indigenous court worker, your lawyer, or duty counsel to find out more about Gladue Court.