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Difference between revisions of "Mental Health and the Criminal Code (14:IX)"
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Mental Health and the Criminal Code (14:IX) (view source)
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In making this designation, the court must consider certain factors, outlined in 672.64(2). Some of the factors are the nature of the offence, the accused’s current mental state and expert opinion. Once a person is found to be a high-risk accused, they are subject to mandatory hospital detention and increased time between Review Board hearings. In order for the high-risk accused designation to be removed, the review board must first refer the finding to a superior court. The court may only revoke the designation if satisfied that there is not a substantial likelihood that the accused will use violence that could endanger the life or safety of another person. | In making this designation, the court must consider certain factors, outlined in 672.64(2). Some of the factors are the nature of the offence, the accused’s current mental state and expert opinion. Once a person is found to be a high-risk accused, they are subject to mandatory hospital detention and increased time between Review Board hearings. In order for the high-risk accused designation to be removed, the review board must first refer the finding to a superior court. The court may only revoke the designation if satisfied that there is not a substantial likelihood that the accused will use violence that could endanger the life or safety of another person. | ||
14- | The Bill also aims to improve victim’s rights, by providing notice to victims of the intended place of residence of any NCRMD accused who receives an absolute or conditional discharge. The victim is informed of the general location where the offender resides, but not the specific address. Furthermore, when the high-risk status of an accused is being reviewed by the court, victims have the opportunity to file impact statements which then must be considered by the court. | ||
Significant criticism has been directed at these provisions prior to their coming into force, suggesting that they will do little to actually improve the rights and safety of victims, and are unnecessarily punitive in nature. Furthermore, it was argued that by placing the “high-risk” designation in the hands of the courts, the ability for the Review Board and hospitals to appropriately assist and manage NCMRD patients will be diminished. For a full discussion of these concerns, see Lisa Grantham, “Bill C-14: A Step Backwards for the Rights of Mentally Disordered Offenders in the Canadian Criminal Justice System”. However, since the provisions came into force, there have not been any significant changes at the Review Board level yet. | |||
In BC there is no person currently designated as a high-risk accused. As of April 2015, the only BC case involving a determination of high-risk accused status is ''R v Schoenborn'' (2010) BSCS 220. The accused was found NCRMD and is currently held in a mental health facility. The BC Review Board is considering whether supervised outings would aid in his rehabilitation. However, there is a strong likelihood that the prosecution will make an application for Schoenborn’s designation as a high-risk accused. | |||
Currently there is only one instance of the high-risk accused designation in Canada, applied in a decision of the Tribunal Administratif du Quebec in 2014 (2014 QCTAQ 09272). | |||
=== 2. Older Changes (2005 –2007) === | |||
==== a) Review Board Powers ==== | |||
Several amendments expand the role of the review board. The review board may adjourn a hearing for 30 days (s 672.5), convene a hearing and issue a summons or warrant. With the consent of the Attorney General, the review board may, in certain circumstances, extend the time to review a disposition for up to 24 months (s 672.81). | |||
==== b) Assessment Orders ==== | |||
The review board can order an assessment of the accused’s mental condition to help determine a disposition if no previous assessment was done, if none has been done within the past 12 months, or if the accused is transferred from outside the province. The assessment may also be ordered when deciding whether to recommend that an inquiry be held to determine if a judicial stay of proceedings should be ordered for an accused likely to be permanently unfit to stand trial. An assessment order is generally in force for 30 days, but can be extended to 60 (s 672.15). | |||
==== c) Permanently Unfit Accused ==== | |||
The review board may refer the accused to court to consider a stay of proceedings. If there is evidence, including an assessment, that suggests that the accused is permanently unfit and is not a significant threat, the court may grant a stay of proceedings (s 672.851). | |||
==== d) Victims ==== | |||
After an NCRMD verdict and before disposition, the review board must ask whether the victim has been advised of the opportunity to make a victim impact statement (VIS) (s 672.5(15.2)). Note that the victim is entitled to notice of hearing and relevant provisions of the ''Criminal Code'' (s 672.5(5.1)). The victim can read or present a VIS unless it would interfere with the proper administration of justice (s 672.5(15.1)). The hearing may be adjourned to allow time for the victim to prepare the statement (s 672.5(15.3)). | |||
==== e) Transfer Provisions ==== | |||
If a transfer would promote recovery or reintegration of an accused found NCRMD and consent is received from the Attorney General and review board of both the sending and receiving jurisdictions, an accused can be transferred to another province (s 672.82(1)). A transfer may happen regardless of whether an accused is in custody or on a conditional discharge. | |||
==== f) Police Powers to Enforce Dispositions ==== | |||
Amendments have been made to expand the choices for the police in arresting a person found NCRMD or unfit to stand trial. For instance, the police could issue a summons or appearance notice instead of using detention. The police can also let an accused stay in the place he or she is required to reside instead of holding the accused in custody until seen by a justice of the peace. | |||
==== g) Publication Ban ==== | |||
The review board must make an order protecting the identity of victims or witnesses under 18 years old in relation to sexual offences, prostitution, money laundering or child pornography related offences (ss 672.501(1) and (2)). An application may be made to protect the identity of a victim or witness of any age if required for the proper administration of justice. A hearing will be held to assess risks, interests and alternatives (s 672.501(3)). Please see s 672.501 for more details. | |||
==== h) Statutory Timelines ==== | |||
A court disposition no longer ceases to be in force after 90 days (s 672.47(3)), but instead remains in force until the review board replaces it (s 672.63). Also, there is no maximum period for the detention of the accused. | |||
'''NOTE:''' For more information regarding review board procedures, students may consult the following resources and resource persons: | |||
*'''CLAS’ Mental Health Law Program''' (see [[Introduction to Mental Health Law (14:II)#2. Resources | section II.B.2, Resources]]) | |||
*'''British Columbia Review Board''' (see [[Introduction to Mental Health Law (14:II)#2. Resources | section II.B.2, Resources]]) | |||
*'''Lyle Hillaby, Crown Counsel''' | |||
**Telephone: (604) 775-1125 | |||
**Mr. Hillaby has extensive experience at review board hearings and has volunteered to be a contact person for LSLAP clinicians. | |||
