b. State Developments

The subject of inappropriate institutionalization of persons with disabilities was recently dealt with by the United States Supreme Court in Olmstead v. L.C. ex rel. Zimring, ("Olmstead").⁹⁸ In this case, the Court held that states may not detain persons with disabilities in institutions if such persons are capable of living in the community. The Court declared that improper institutionalization constituted discrimination under the anti-discrimination prohibition of Title II of the Americans with Disabilities Act.⁹⁹ U.S. jurisprudence under Olmstead may therefore provide an example of how the right to community integration can be understood and developed in international law.¹⁰⁰

c. Impact of These Developments on Canada

FSW with mental disabilities are detained in federal prisons because they have committed a criminal offence. Generally however, persons with disabilities like those involved in the Olmstead case are forced to remain in institutions because governments failed to provide the supports necessary for them to live in the community. At first blush the circumstances pertaining to each group appear quite different. However, similarities start to emerge - not only when the mental health needs of FSW are distinguished from their sentence requirements, but, also when one considers that it is the very evisceration of social and health programs that are increasingly resulting in the criminalization of those who are desperately attempting to survive such cuts. This is the case for women with mental and cognitive disabilities.

Using a mental disability lens, those FSW who are incarcerated primarily because of behaviour occasioned or influenced by their disability, may be able to challenge the legality of their institutionalization and assert their right to community integration as contemplated by international principles. Similarly, women whose sentence is bona fide, but who experience mental health problems may be able to cite the right to community integration to bolster their demand to receive mental health services outside the prison system. Such assertions may be buttressed by the SCC, which has begun to look to international human rights standards to guide its deliberations.¹⁰¹ Human rights legislation and/or the Charter, together with international standards and principles dealing with mental disability, may therefore form an innovative legal basis for advancing such arguments.

2. Right to Quality of Service

The lack of adequate community-based resources has made it difficult for persons in society with mental health concerns to receive appropriate services. This is particularly true for those persons experiencing multiple problems such as drug or alcohol dependence, abuse or personality disorders.¹⁰² Such persons are thus more likely to end up in the prison system.¹⁰³ Consequently, while this paper is focused on the federal prison system, it must be borne in mind that federal, provincial and local governments also have a responsibility to provide supports and services aimed at preventing such persons from becoming criminal offenders.

With respect to the availability of mental health services in federal prisons, the prohibition of disability-based discrimination by the CHRA and the Charter may be triggered in a couple of ways. An obvious first step would be to compare the services provided by the prison system with those provided by the community.