Difference between revisions of "Mental Health and the Criminal Code (14:IX)"
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A finding of NCRMD ends criminal proceedings against the accused. There will then be a disposition hearing either in court or before the Review Board (''Criminal Code'' s 672.38). Under s 672.54 a person found NCRMD may be: | A finding of NCRMD ends criminal proceedings against the accused. There will then be a disposition hearing either in court or before the Review Board (''Criminal Code'' s 672.38). Under s 672.54 a person found NCRMD may be: | ||
:a) discharged absolutely where the review board or court finds that the accused is not a significant threat to the safety of the public; | :(a) discharged absolutely where the review board or court finds that the accused is not a significant threat to the safety of the public; | ||
:b) discharged subject to conditions considered appropriate by the court or review board; or | :(b) discharged subject to conditions considered appropriate by the court or review board; or | ||
:c) detained in custody in a psychiatric hospital subject to conditions considered appropriate by the court or Review Board. | :(c) detained in custody in a psychiatric hospital subject to conditions considered appropriate by the court or Review Board. | ||
With the passage of Bill C-14 in 2014, discussed fully below, the court may also designate a person as a high-risk accused, and then the Review Board would only be able to make a narrow custody order. The amendments flowing from Bill C-14 have changed other sections of the Mental Disorder provisions of the ''Criminal Code'', some of which are highlighted below. | With the passage of Bill C-14 in 2014, discussed fully below, the court may also designate a person as a high-risk accused, and then the Review Board would only be able to make a narrow custody order. The amendments flowing from Bill C-14 have changed other sections of the Mental Disorder provisions of the ''Criminal Code'', some of which are highlighted below. | ||
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In response to a number of cases challenging the constitutionality of section 672.54, the Supreme Court in ''Winko'' rejected arguments that section 672.54 violates the Charter. According to ''Winko'', a “significant risk to the safety of the public” means a real risk of physical or psychological harm to members of the public. The conduct giving rise to the harm must be criminal in nature. The process of determining whether the accused is a significant threat to public safety is non-adversarial, and the courts or Review Board may consider a broad range of evidence. This includes the accused’s past and expected course of treatment, present medical condition, past offences, plans for the future and any community support that exists. See ''Winko'' for a detailed application of section 672.54. Bill C-14, discussed fully below, codifies some of this decision, such as the definition of “significant harm”. | In response to a number of cases challenging the constitutionality of section 672.54, the Supreme Court in ''Winko'' rejected arguments that section 672.54 violates the Charter. According to ''Winko'', a “significant risk to the safety of the public” means a real risk of physical or psychological harm to members of the public. The conduct giving rise to the harm must be criminal in nature. The process of determining whether the accused is a significant threat to public safety is non-adversarial, and the courts or Review Board may consider a broad range of evidence. This includes the accused’s past and expected course of treatment, present medical condition, past offences, plans for the future and any community support that exists. See ''Winko'' for a detailed application of section 672.54. Bill C-14, discussed fully below, codifies some of this decision, such as the definition of “significant harm”. | ||
Two Supreme Court of Canada cases considered the “least onerous and least restrictive” requirement of s 672.54. In [https://www.canlii.org/en/ca/scc/doc/2004/2004scc21/2004scc21.html?resultIndex=1 ''Pinet v St Thomas Psychiatric Hospital'', [ | Two Supreme Court of Canada cases considered the “least onerous and least restrictive” requirement of s 672.54. In [https://www.canlii.org/en/ca/scc/doc/2004/2004scc21/2004scc21.html?resultIndex=1 ''Pinet v St Thomas Psychiatric Hospital'', [2004] SCC 21], it was held that the “least onerous and least restrictive” requirement applies not only to the bare choice among the three potential dispositions – absolute discharge, conditional discharge or custody in a designated hospital, but also to the particular conditions forming part of that disposition. In [https://www.canlii.org/en/ca/scc/doc/2004/2004scc20/2004scc20.html?resultIndex=1 ''Penetanguishene Mental Health Center v Ontario (Attorney General)'', [2004] SCJ No 67], the court decided that this applied not only to the choice of the order, but also to the choice of appropriate conditions attached to the order, consideration of public protection, and maximisation of the accused’s liberties. | ||
The Review Board’s powers were considered in [https://www.canlii.org/en/ca/scc/doc/2006/2006scc7/2006scc7.html?resultIndex=1 ''Mazzei v BC (Director AFPS)'', [2006] SCC 7]. It has the power to place binding orders and conditions on any party to the Review Board hearing, including the director of the psychiatric hospital. The Review Board does not prescribe or administer treatment, but may supervise and require reconsideration of treatment provided. Treatment is incidental to the objectives and focus on public safety and reintegration, and the Review Board aids in only these two goals. | The Review Board’s powers were considered in [https://www.canlii.org/en/ca/scc/doc/2006/2006scc7/2006scc7.html?resultIndex=1 ''Mazzei v BC (Director AFPS)'', [2006] SCC 7]. It has the power to place binding orders and conditions on any party to the Review Board hearing, including the director of the psychiatric hospital. The Review Board does not prescribe or administer treatment, but may supervise and require reconsideration of treatment provided. Treatment is incidental to the objectives and focus on public safety and reintegration, and the Review Board aids in only these two goals. | ||