In 2021, Michael Joseph Hebert smashed up cars and flooded a floor of St. Joseph's Hospital because he thought he was having a heart attack and needed help.
After serving a two-year jail sentence, police responded this past October after Hebert allegedly waved around a gun and broke car windows in Saint John's south end. Hebert ended up being shot by officers before his arrest in what his sister believes was "suicide by police."
Hebert, 47, pleaded not guilty to 16 offences, including assaulting an officer with a firearm, and is set for a September trial, where his lawyer has said he is considering the issue of whether Hebert could be found criminally responsible at the time.
The question Michelle Marks has now is, how is it that her brother is in jail in remand custody instead of a hospital, receiving mental health treatment?
"I was shocked to learn that he was deemed fit based on a fitness test, especially considering that those who know Michael well are aware of his mental health struggles," Marks said in a statement in late April after Hebert cleared a second fitness assessment. "It is unfathomable that authorities would consider him 'normal' given the extent of his struggles and suffering."
The answer is related to the way New Brunswick courts manage mental health and a person's ability to fully comprehend their actions, according to UNB professor and psychologist Mary Ann Campbell.
"When you're talking about not criminal responsible things, it was what's happening at the time," she said. "The current mental state is all they're looking at."
Mental health assessments
Campbell, the director of UNB's centre for criminal justice studies, told Brunswick News May 2 that she was not involved in Hebert's case but has helped perform mental health assessments for the courts. She said the purpose of a mental health assessment is to determine whether a person's mental illness has "compromised their ability to fully participate."
A fitness assessment can be done over five or 30 days, in the community, in remand or, if the defendant needs care, at the Restigouche Hospital Centre in Campbellton. Campbell said a person's mental fitness is not related to the behaviour they're accused of, but their understanding of the roles of a judge and the lawyers, their own rights and their ability to communicate with their lawyer.
"Do they understand the choices they're making, and the implications of those choices?" she said.
If a judge finds a person not fit to stand trial, they are put in the custody of the New Brunswick Review Board, which is composed of medical and legal professionals, who assess a person's case while they are being cared for at the RHC.
Once they are able to participate, their lawyer can ask for an evaluation based on criminal responsibility, Campbell said, which asks if a mental illness "prevented them from having control of their behaviour or a full understanding of the consequences."
Campbell said the threshold for criminal responsibility is a "low bar," and that it's "very uncommon" for a person to be found not criminally responsible. NCR is a "triable issue," meaning that the defence can contest the finding in the report with their own mental health report.
"Someone can be struggling and still be very criminally responsible, especially if they had an understanding that these actions were not okay," she said. "Really understanding the person's motives, actions and ways of thinking at that time ... those are the things they're focused on."
She says a low bar is "appropriate," but said that those performing assessments need to understand the "scope of practice," or the criteria the court is looking for, calling it a specialized process.
If a judge deems a defendant not criminally responsible, the person goes to the review board, who "sets expectations" for the person's treatment, which could include an involuntary hospital stay, until considering a discharge when the person is considered safe and mentally stable.
Despite perceptions, Campbell said those given NCR designations are less likely to re-offend and may be held longer than if they had been criminally charged for the offence. She said it's about providing a person with the most effective treatment to help them re-integrate into society.
She said there's a "misunderstanding" in the public that people being found NCR "happens all the time," leading to stereotypes about people with mental illness being likely to cause violence, when in fact NCR cases are "very uncommon" and people with mental illnesses are at lower risk of violence and more vulnerable to victimization.
"But when all you hear about are all the cases where it wasn't successful, or something happened when a person was granted discharge ... we kind of assume this biased perception that it's not working," Campbell said. "Nobody ever follows up on the success cases, right? They only follow up on the ones that go sideways."
Hebert's trip through court
Around 4:36 p.m. Oct. 5, police say they responded to reports of a man "with a gun causing damage to property" on Mecklenburg Street, where a car with a shattered rear window was seen that afternoon. Police said the man failed to respond to commands and one officer shot at the suspect, according to a press release at the time. The man was arrested and taken to hospital with non-life threatening injuries.
The Serious Incident Response Team, which investigates incidents of injury or death involving police officers, said at the time it is investigating. SIRT has not yet issued its report, which must be done within 60 days of the conclusion of the investigation.
Hebert appeared by telephone from hospital the next day, and was charged with 16 offences including assaulting an officer with a firearm, assaulting three others by threatening to use a firearm and mischief by damage to a window and a car. He appeared in person for a bail hearing Oct. 10, but was instead sent for a fitness assessment and was ruled unfit due to mental health and substance issues Oct. 16.
He returned and was found fit to stand trial in December, when he was then assessed for criminal responsibility. When the assessment was presented in January, duty counsel lawyer Shanna Wicks said Hebert contested the result. The assessment report was not made available by provincial court.
In February, he pleaded not guilty to his charges, with a trial set for Sept. 5, where his lawyer Charles Bryant said his NCR status will be an issue.
"I just want to make sure that I get the treatment I should get, because I was in psychosis of what was going on, I thought I was dying," Hebert told the court during the appearance.
At times during his appearances, Hebert was incoherent, saying "I feel like I'm burning up, man," on his first appearance, when he said he was missing money and methadone, a component of drug rehab. Sometimes, he sounded tired, or confused, and at others, he's joking, asking Judge W. Andrew LeMesurier on Jan. 25 if he used "youth serum," leading to laughter and claims he's "flattering the judge."
"I've got bad news," Hebert told LeMesurier at the start of his Feb. 20 appearance. "I found out that my grandmother was lying to me all these years, because I got up this morning, I looked at the mirror and I seen that I was ugly ... so I gotta make a phone call tonight, set that straight."
He was supposed to appear April 23 for a pre-trial conference, but made comments that were concerning to those in the courtroom, according to Bryant. Judge Kelly Ann Winchester ordered another mental health assessment, which returned April 30 with a finding that Hebert was still fit to stand trial.
He is remanded at the Saint John Regional Correctional Centre until his trial Sept. 5. Bryant declined comment for this story, citing lack of instruction from his client.
Sister concerned about 'deteriorating mental state'
Hebert's sister Michele Marks said April 30 that she heard from her brother a few days ago and she was "deeply troubled by the state of confusion and distress" he showed during a phone call, and she had to hang up. She said he believes people are conspiring against him, including medical professionals, a "clear indication of his deteriorating mental state."
"Michael feels trapped in a cycle of despair and helplessness, constantly battling against a system that has repeatedly failed him," said Marks, who also said he was a part of a 2023 class-action settlement against the Restigouche Hospital Centre. That lawsuit alleged that patients suffered physical and sexual harms while at the facility, although Vitalité Health Network told Brunswick News at the time that the $17 million settlement was not an "acknowledgement of responsibility or fault."
Hebert had been sentenced in June 2022 to two years less a day for "numerous mischief and break-in charges," relating to August 2021 at St. Joseph's Hospital, Brunswick News reported at the time. He told court he thought he was having a heart attack, and smashed car windows with a golf club on Paddock Street hoping to get arrested and taken to hospital.
Instead, he went to St. Joseph's himself and broke in, doing just under $20,000 in damage, including broken sprinkler heads that flooded the hospital's fourth floor, leading to cancelled operations and the closure of the urgent care centre, court heard at the time.
Marks said Hebert, a father of two, has a "huge, huge heart" but has been in and out of the courts for years and has had issues with drugs. She said he has been "stigmatized" because of early brushes with the justice system, and that despite "numerous attempts to seek help, he has been met with indifference and neglect."
Marks has said Hebert's past medical struggles need to be considered, including incidents where he's cut off fingers and toes and attempted suicide while in custody, and a diagnosis of schizophrenia which she said was related to segregation in jail. She said the date of the incident was the anniversary of the death of one of their siblings, and said "I'm sure (Hebert) tried to commit suicide by police."
She called his remand a "distressing situation" and said she wants to "shed light on the injustices and inadequacies within the mental health care system."
"I fear for Michael's well-being and safety. The current trajectory of his situation is deeply troubling," Marks said.
Campbell said the courts are realizing the need for better mental health support and that there are interventions available in federal custody, but provincial jails are "working hard" to embed more.
"There are people who are criminally responsible who do have mental health needs in that correctional environment," she said.
In 2018, then-auditor-general Kim McPherson delivered a report finding that there was an "unacceptable lack of addiction and mental health services" in provincial adult correctional institutions, limiting mental health improvement among inmates and reintegration into society.
Campbell said she understands that since then, there's been a mental health social worker position added to jails. She said inmates do have access to nurses and a psychiatrist or counsellor, although the depth of care "might not be the same" as at a hospital.
"I absolutely understand," Campbell said. "It would be hard for parents or family members or any loved one to see anyone they care about in jail."
In a statement from provincial spokesperson Allan Dearing, the departments of health and public safety said they would not comment on individual cases for privacy reasons.
"Both departments work to provide necessary health services, including mental health and addiction support, to clients in need," Dearing said in the statement, saying the government has added 11 social workers and 45 and a half nurse positions at provincial jails in the last five years.
"Individuals who are incarcerated in provincial correctional facilities, regardless if they are on remand or sentenced, have access to addiction and mental health services. They can also be connected with these services within their communities once released," Dearing said.
According to department of health spokesperson Sean Hatchard, when an inmate has a mental health crisis, either the in-jail social worker or regional health authority medical staff can "assess and provide support." The staff can "collaborate with the emergency department" at the nearest hospital if necessary, including for a psychiatric consultation, Hatchard said in a statement.
Horizon declined to participate for this story, according to spokesperson Shannon Cornelius.
Fitness waxes and wanes
Campbell said whether a person is viewed fit to stand trial or not criminally responsible is a legal question, and doesn't necessarily correspond to their health needs. She said fitness can "wax and wane" and can be an issue at any point of the process.
She said she has seen cases where people with lower cognitive processes, or social perception issues related to autism, can have difficulties with the tense atmosphere, unfamiliar legal jargon and long waits inherent in the courts, and that accommodations can be made to mitigate those difficulties.
She said that communication between the client and lawyer "is essential," and that lawyers "try to do the best they can" but have to work within what the court decides and can't always get the time with their client to work through these issues.
Since 2017, there's been a "mental health court" in Saint John where defendants are assigned case workers and receive more intervention. Campbell said she's evaluated the mental health courts and found them to have lower rates of re-offending.
"The whole goal here is public safety," she said. "What do you want to achieve? Someone that's going to have a low probability ... of re-offending. As much as people think otherwise, taking someone and locking them up increases the risk of re-offending."
She said Canada is a leader in rehabilitation, and that other than "rare" cases, these interventions are best done in the community to allow people to re-integrate.
"You can't incarcerate yourself out of criminal behaviour, it just doesn't work," Campbell said.
She said she presented recently at a crime prevention conference regarding the importance of "engaging well" with people involved with the criminal justice system, based on their risk of re-offending.
"It's not just that you have a mental illness, it's, what are the risk factors you have?" she said. "Then we tailor an intervention that is at the right 'dosage' for your risk level ... of supervision and intervention."
She said it's important to "build a team around a person" that can help catch issues before they arise. That means things like "restoring a person's quality of meaningful life, engagement with community" and removing stressors and exposure to vulnerability triggers.
She said the health-care system is becoming more integrated, including addiction and mental health services, saying people "fall through the cracks" when they are "seen by many services" that don't talk to each other.
"The more we do that, build a team around a person ... the more likely we are to catch them from falling before things escalate to a crisis that leads to police interaction," she said.
With files from Brunswick News Archives
Andrew Bates, Local Journalism Initiative Reporter, Telegraph-Journal
