Difference between revisions of "Mental Health and the Criminal Code (14:IX)"
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If a person is found unfit to stand trial, they may be detained in a mental health facility until they recover enough to be able to proceed with the trial (''Criminal Code'', s 672.58). However, the court cannot make a disposition order to have an accused detained in a health facility without the consent of the hospital or a treating physician (''Criminal Code'', s 672.62(1)). A recent Supreme Court of Canada case, [https://www.canlii.org/en/ca/scc/doc/2014/2014scc60/2014scc60.html?resultIndex=1 ''R v Conception'', 2014 SCC 60] (at para 3), confirmed the need for such consent. The court found that “[t]he hospital consent was required for the disposition order in its entirety, and not simply the treatment aspects of it.” The exception to this is the rare case in which a delay in treatment would breach the accused’s rights under the Charter and an order for immediate treatment is an appropriate and just remedy for that breach. An inquiry by the court must be held no later than two years after the verdict of “unfit” and every two years afterward. The court may now extend the period for holding an inquiry where it is satisfied that such an extension is necessary to determine whether sufficient evidence can be adduced to put the person on trial (''Criminal Code'', s 672.33). | If a person is found unfit to stand trial, they may be detained in a mental health facility until they recover enough to be able to proceed with the trial (''Criminal Code'', s 672.58). However, the court cannot make a disposition order to have an accused detained in a health facility without the consent of the hospital or a treating physician (''Criminal Code'', s 672.62(1)). A recent Supreme Court of Canada case, [https://www.canlii.org/en/ca/scc/doc/2014/2014scc60/2014scc60.html?resultIndex=1 ''R v Conception'', 2014 SCC 60] (at para 3), confirmed the need for such consent. The court found that “[t]he hospital consent was required for the disposition order in its entirety, and not simply the treatment aspects of it.” The exception to this is the rare case in which a delay in treatment would breach the accused’s rights under the Charter and an order for immediate treatment is an appropriate and just remedy for that breach. An inquiry by the court must be held no later than two years after the verdict of “unfit” and every two years afterward. The court may now extend the period for holding an inquiry where it is satisfied that such an extension is necessary to determine whether sufficient evidence can be adduced to put the person on trial (''Criminal Code'', s 672.33). | ||
After the court deems a person unfit to stand trial, a disposition hearing must be held by the Review Board within 45 days, taking into account the safety of the public and the condition and needs of the accused. While the term in section 672.54 “least onerous and least restrictive” has been replaced by “necessary and appropriate”, the intent of the legislation has not changed, as explained below in | After the court deems a person unfit to stand trial, a disposition hearing must be held by the Review Board within 45 days, taking into account the safety of the public and the condition and needs of the accused. While the term in section 672.54 “least onerous and least restrictive” has been replaced by “necessary and appropriate”, the intent of the legislation has not changed, as explained below in '''C. Disposition Hearings after NCRMD'''. | ||
The BC Court of Appeal considered a Review Board decision regarding custody in a fitness case; [https://www.canlii.org/en/bc/bcca/doc/2009/2009bcca560/2009bcca560.html?resultIndex=1 ''Evers v British Columbia (Adult Forensic Psychiatric Services)'', 2009 BCCA 560]. The BCAA stated that the Review Board erred in proceeding with a disposition hearing in the absence of the accused without first attempting to ensure the accused’s presence by issuing a warrant or allowing a short adjournment. Further, the court stated that fear of non-compliance with medical treatment cannot be the main objective motivating a custody disposition order, nor can the Review Board impose treatment as a condition on the accused. | The BC Court of Appeal considered a Review Board decision regarding custody in a fitness case; [https://www.canlii.org/en/bc/bcca/doc/2009/2009bcca560/2009bcca560.html?resultIndex=1 ''Evers v British Columbia (Adult Forensic Psychiatric Services)'', 2009 BCCA 560]. The BCAA stated that the Review Board erred in proceeding with a disposition hearing in the absence of the accused without first attempting to ensure the accused’s presence by issuing a warrant or allowing a short adjournment. Further, the court stated that fear of non-compliance with medical treatment cannot be the main objective motivating a custody disposition order, nor can the Review Board impose treatment as a condition on the accused. | ||