A provincial government plan to keep mentally ill people charged with crimes out of jail while awaiting spaces in psychiatric hospitals appears to have failed.

The plan was put in place to comply with a judge's ruling that declared it illegal and unconstitutional to jail those with mental illnesses until beds in hospital forensic units were available. Six months ago, Ontario Superior Court Justice Robert Desmarais imposed a May 10 deadline for the provincial government to fix the problem.

A landmark ruling, it was supposed to be binding on all Ontario courts. But the spirit of that order seems not to have been followed yesterday in another court proceeding.

Shirley Michel, 35, who suffers from schizophrenia and is charged with several relatively minor crimes, was declared unfit to stand trial by Ontario Court Justice Peter Wright in an Ottawa court.

Ms. Michel is so sick that two forensic psychiatrists found her unfit to stand trial because of her mental illness and determined treatment is needed to stabilize her. So, Judge Wright ordered her to the Royal Ottawa Hospital for 60 days to get treatment.

However, after the order was made, Ottawa police court liaison officer Frank Granieri told the court there was already one person in the same situation being held at the jail awaiting a bed at the hospital, and Ms. Michel would be No. 2.

"Even if the person who is ahead of her was to go (to the hospital) tomorrow, there would still be no bed," Mr. Granieri said.

The judge then asked if there was an estimate on when a bed would be available. Mr. Granieri said no.

With that, Ms. Michel was taken from the courtroom. During her court appearance, she continually muttered absurdities and made no acknowledgment of anyone or anything to do with the case.

Her lawyer, Marni Munsterman, later confirmed her client was not at the hospital, but instead was at the Innes Road jail, where she's been held since her arrest May 14 for not showing up for a court date.

In the jail, Ms. Michel joins Brenda Deslauriers, a 41-year-old woman with bipolar disorder. Ms. Deslauriers has no criminal record, but is charged with being unlawfully in a house and assault.

Ms. Deslauriers was arrested May 8, found unfit to stand trial and ordered for treatment on May 19. She has been at the jail ever since, waiting for a bed.

Her defence lawyer, Dominic Lamb, shakes his head when he talks about her situation.

"She's really, really mentally ill, and she's deteriorating badly in jail," he said.

Late yesterday, Mr. Lamb was told a space in the forensic unit should be available today.

All this appears contrary to Justice Desmarais' ruling. In his decision, the judge said there was no legal authority to jail mentally ill people pending in-custody forensic assessments to help determine their fitness to stand trial and criminal responsibility issues. To do so violates their Charter of Rights guarantees not to be arbitrarily detained, the judge said.

At the heart of the issue, the judge found, was a lack of space at the Royal Ottawa Hospital's secure forensic unit to do court-ordered work. He gave the government six months to fix the long-standing problem. The deadline was May 10.

Ms. Michel's lawyer is furious her client is the victim of the government's inability to solve the problem. "The plight of my client is in direct contravention of Justice Desmarais' order, and it's not even known when a bed at the hospital will even be available," Ms. Munsterman said.

"She's very ill and has been deteriorating for some time. Two doctors have declared her unfit to stand trial because she is so sick, and it's been determined she would benefit from treatment that has worked for her in the past. She's not receiving proper supervision or treatment at the jail. She's suffering there. In my view, this is inhumane."

To remedy the situation and get her client help, Ms. Munsterman is planning to bring a motion in court today. She will ask a judge to declare her client is being illegally detained at the jail, and will be seeking an order that Ms. Michel be brought to the hospital immediately for treatment.

If needed, Ms. Munsterman, will suggest police or corrections officers be ordered to guard Ms. Michel in a regular wing of the hospital.

Brendan Crawley, a spokesman for the Crown's office and the Ministry of the Ontario Attorney General, said in light of today's proceedings brought by Ms. Munsterman, it wouldn't be appropriate to comment. He said the Crown's position on the matter will be made clear in court.

This is exactly what a coroner's jury looking into the death of a mentally ill man, who died at the jail, suggested last year. The jury recommended mentally ill people charged with crimes never be jailed under any circumstances because the results can be fatal.

Indeed, James O'Brien, 59, a man with schizo-effective disorder, including paranoia, delusions and hallucinations, died in November 2003 at the Ottawa jail while waiting for a hospital bed.

Another man who was being held at the jail pending an assessment is accused of killing his cellmate. A later assessment found the man was so sick he couldn't be held criminally responsible for the crime for which he was being held.

Another mentally ill man spent six months at the jail for no reason, without anybody being notified. After treatment, the man was fine.

Each year, dozens of other mentally ill people are jailed for periods of time over minor crimes that wouldn't result in custodial sentences, even if they were convicted. During these periods, their mental health problems often deteriorate dramatically.

In his ruling, Judge Desmarais noted that in jail, these people "often" suffer threats of violence, actual assaults, stress, fear, confusion, uncertainty and improper treatment and care, all of which increase the severity of their psychiatric problems.

The judge noted that the same problem existed 21/2 years ago, and came to an obvious conclusion.

"In the context of this case, it would be appropriate for the (government) to ensure that there are a sufficient number of secure beds available in order to comply with the provisions of the Criminal Code," he said.

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