Difference between revisions of "Mental Health and the Criminal Code (14:IX)"
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The review board must review cases in which a person is found NCRMD at least once a year if the person is still detained in a mental facility or is fulfilling conditions pursuant to the disposition hearing (s 672.81). However, as a result of the operation of s 672.54, it is possible for individuals found NCRMD to be subject to prolonged or indeterminate detention or supervision by the review board, even for committing relatively minor offences. | The review board must review cases in which a person is found NCRMD at least once a year if the person is still detained in a mental facility or is fulfilling conditions pursuant to the disposition hearing (s 672.81). However, as a result of the operation of s 672.54, it is possible for individuals found NCRMD to be subject to prolonged or indeterminate detention or supervision by the review board, even for committing relatively minor offences. | ||
In response to a number of cases challenging the constitutionality of s 672.54, the Supreme Court in ''Winko v Director of Forensic Psychiatric Institute and the Attorney General of BC'', [1999] 2 S.C.R. 625 [''Winko''] rejected arguments that s 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 that is serious in the sense of extending beyond the mere trivial or annoying. 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 take into consideration a broad range of evidence, including the past and expected course of the accused’s treatment, present medical condition, past offences, the accused’s plans for the future and any community support that exists. See ''Winko'' for | In response to a number of cases challenging the constitutionality of s 672.54, the Supreme Court in ''Winko v Director of Forensic Psychiatric Institute and the Attorney General of BC'', [1999] 2 S.C.R. 625 [''Winko''] rejected arguments that s 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 that is serious in the sense of extending beyond the mere trivial or annoying. 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 take into consideration a broad range of evidence, including the past and expected course of the accused’s treatment, present medical condition, past offences, the accused’s plans for the future and any community support that exists. See ''Winko'' for a complete discussion of the application of s 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 ''Pinet v St. Thomas Psychiatric Hospital'', [2003] S.C.J. No. 66, it was held that the “least onerous and least restrictive” requirement applies not only to the bare choice among the three potential dispositions, but it also applies to the particular conditions forming part of that disposition. In ''Penetanguishene Mental Health Center v Ontario (Attorney General)'', [2004] S.C.J. 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, considering public protection and maximisation of the accused’s liberties. | |||
The review board’s powers were considered in ''Mazzei v BC (Director A.F.P.S.)'', [2006] S.C.C 7. The board’s mandate requires it to hold the power to make orders and conditions binding on any party to the review board hearing, including the director of the psychiatric hospital. It does not prescribe or administer treatment. It may supervise and require reconsideration of treatment provided. Treatment is incidental to the objectives and focus on public safety and reintegration. The board aids in only these two goals. | |||
For information on pleading Mental Disorder and Non-Mental Disorder automatism, please consult the Continuing Legal Education Society’s manual on Criminal Law and Mental Health Issues. | |||
=== 1. Recent & Upcoming Changes (2014) == | |||
Bill C-14, the “Not Criminally Responsible Reform Act”, which received royal assent in April, 2014, came into force on July 11 2014. This new legislation is meant to strengthen the ''Criminal Code''’s decision-making process relating to the accused persons found NCRMD to make public safety the primary consideration, enhance victim safety, and provide victims with a stronger voice in the process. | |||
The primary function of the amendment is to create a new designation of “high-risk accused”. Section 672.64 of the ''Criminal Code'' allows the court to designate a person who was found NCRMD to also be a high-risk accused. This designation is available when the offence was a serious personal injury offence, as defined in s 672.81(1.3), the accused was over 18 when the offence occurred, and one of two additional factors are present. The first possibility is when the court finds that there is a substantial likelihood that the accused will use violence that could endanger the life or safety of another person. The designation is also available when the court is of the opinion that the acts underlying the offence were of a brutal nature that indicates a risk of grave physical or psychological harm to 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. | |||
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