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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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== A. Fitness to Stand Trial ==
== A. Fitness to Stand Trial ==


An accused is presumed fit to stand trial until the contrary is proven on a balance of probabilities (''Criminal Code'', s 672.22 of the ''Criminal Code''). The burden of proof is on whichever side raises the issue, either the accused or Crown Counsel (''Criminal Code'', s 672.23(2)).  
An accused is presumed fit to stand trial until the contrary is proven on a balance of probabilities (''Criminal Code'', s 672.22 of the ''Criminal Code''). The burden of proof is on whoever side raises the issue, either the accused or Crown Counsel (''Criminal Code'', s 672.23(2)).  


An accused is deemed “unfit to stand trial” under s 2 of the ''Criminal Code'' if they are incapable of understanding the nature, object or possible consequences of the criminal proceedings, or if they are unable to communicate with counsel on account of mental illness. If the court reaches the verdict that the accused is unfit  to stand trial, any plea that has been made will be set aside and the jury will be discharged (''Criminal Code'' s 672.31). Under section 672.32, the accused may stand trial once they are fit to do so. For a detailed outline of the tests for fitness, see [https://www.canlii.org/en/on/onca/doc/1992/1992canlii7412/1992canlii7412.html?resultIndex=1 ''R. v Taylor'' (1992), 77 CCC (3d) 551], which outlines the various tests in greater detail.  
An accused is deemed “unfit to stand trial” under s 2 of the ''Criminal Code'' if they are incapable of understanding the nature, object, and possible consequences of the criminal proceedings, or if they are unable to communicate with counsel on account of mental illness. If the court reaches the verdict that the accused is unfit  to stand trial, any plea that has been made will be set aside and the jury will be discharged (''Criminal Code'' s 672.31). Under section 672.32, the accused may stand trial once they are fit to do so. For a detailed outline of the tests for fitness, see [https://www.canlii.org/en/on/onca/doc/1992/1992canlii7412/1992canlii7412.html?resultIndex=1 ''R. v Taylor'' (1992), 77 CCC (3d) 551], which outlines the various tests in greater detail.  


The court may order a trial (not an assessment) on the issue of the accused’s fitness to stand trial at any stage in the proceedings prior to a verdict, either on its own motion or on an application of either the prosecution or the defence (''Criminal Code'' s 672.23).  
The court may order a trial (not an assessment) on the issue of the accused’s fitness to stand trial at any stage in the proceedings prior to a verdict, either on its own motion or on an application of either the prosecution or the defence (''Criminal Code'' s 672.23).  
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Bill C-14, or the ''Not Criminally Responsible Reform Act'', SC 2014, c 6 [''NCRRA''], came into force on July 11, 2014. This legislation was intended to strengthen the ''Criminal Code’s'' decision-making process relating to  findings of NCRMD, and thereby make public safety the primary consideration, enhance victim safety, and provide victims with a stronger voice in the process.  
Bill C-14, or the ''Not Criminally Responsible Reform Act'', SC 2014, c 6 [''NCRRA''], came into force on July 11, 2014. This legislation was intended to strengthen the ''Criminal Code’s'' decision-making process relating to  findings of NCRMD, and thereby make public safety the primary consideration, enhance victim safety, and provide victims with a stronger voice in the process.  


The primary function of the amendments was 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 section 672.81(1.3), committed by an accused who was over 18 at the time of the offence. One of two additional factors must also be present. The first of these factors is a finding by the court that there is a substantial likelihood that the accused will use violence that could endanger the life or safety of another person. The second factor is a finding by the court that the acts underlying the offence were of a brutal nature, indicating a risk of grave physical or psychological harm to another person.
The primary function of the amendments was 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 is a serious personal injury offence, as defined in section 672.81(1.3), committed by an accused who was over 18 at the time of the offence. One of two additional factors must also be present. The first of these factors is a finding by the court that there is a substantial likelihood that the accused will use violence that could endanger the life or safety of another person. The second factor is a finding by the court that the acts underlying the offence were of a brutal nature, indicating a risk of grave physical or psychological harm to another person.


When deciding whether to render this designation, the court considers the factors outlined in section 672.64(2) of the ''Criminal Code''. These factors include the nature of the offence, the accused’s current mental state, any patterns of offence-related conduct, and expert opinion. Once a person is found to be a “high-risk accused”, they are subject to mandatory hospital detention and may have increased time between Review Board hearings.
When deciding whether to render this designation, the court considers the factors outlined in section 672.64(2) of the ''Criminal Code''. These factors include the nature of the offence, the accused’s current mental state, any patterns of offence-related conduct, and expert opinion. Once a person is found to be a “high-risk accused”, they are subject to mandatory hospital detention and may have 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.  
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.  


Bill C-14 also aimed 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 under review by the court, victims may file impact statements which must then be considered by the court.
Bill C-14 also aimed 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 under review by the court, victims may file impact statements which must then 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 improve the rights and safety of victims, and that they are unnecessarily punitive in nature. It has been 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, treat and manage NCMRD patients will be diminished. For a full discussion of these concerns, see Lisa Grantham’s “Bill C-14: A Step Backwards for the Rights of Mentally Disordered Offenders in the Canadian Criminal Justice System”. In spite of the criticisms directed at Bill C-14, there have not been any significant changes to the Review Board or its authority since the new provisions came into force.
Significant criticism has been directed at these provisions prior to their coming into force, suggesting that they will do little to improve the rights and safety of victims, and that they are unnecessarily punitive in nature. It has been 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, treat and manage NCMRD patients will be diminished. For a full discussion of these concerns, see Lisa Grantham’s “Bill C-14: A Step Backwards for the Rights of Mentally Disordered Offenders in the Canadian Criminal Justice System”. Despite the criticisms directed at Bill C-14, there have not been any significant changes to the Review Board or its authority since the new provisions came into force.


In British Columbia, there is no person currently designated as a “high-risk accused”. The only BC case involving a determination of “high-risk accused” status is [https://www.canlii.org/en/bc/bcsc/doc/2010/2010bcsc220/2010bcsc220.html?autocompleteStr=R%20v%20Schoenbo&autocompletePos=1 ''R v Schoenborn'', (2010) BSCS 220] [''Schoenborn'']. The accused was found NCRMD and was currently held in a mental health facility. In April 2015, the BC Review Board granted Schoenborn escorted community access at the discretion of the Director of the facility in order to aid his rehabilitation. In 2017, the Attorney General of BC applied unsuccessfully to the BC Supreme Court to have Schoenborn designated as a “high-risk accused”.  After many days of evidence in court, the judge found that Schoenborn did not meet the criteria for a “high risk accused” ([https://www.canlii.org/en/bc/bcsc/doc/2010/2010bcsc220/2010bcsc220.html?autocompleteStr=R%20v%20Schoenbo&autocompletePos=1 ''R v Schoenborn'', 2017 BCSC 1556].  
In British Columbia, there is no person currently designated as a “high-risk accused”. The only BC case involving a determination of “high-risk accused” status is [https://www.canlii.org/en/bc/bcsc/doc/2010/2010bcsc220/2010bcsc220.html?autocompleteStr=R%20v%20Schoenbo&autocompletePos=1 ''R v Schoenborn'', (2010) BSCS 220] [''Schoenborn'']. The accused was found NCRMD and was currently held in a mental health facility. In April 2015, the BC Review Board granted Schoenborn escorted community access at the discretion of the Director of the facility in order to aid his rehabilitation. In 2017, the Attorney General of BC applied unsuccessfully to the BC Supreme Court to have Schoenborn designated as a “high-risk accused”.  After many days of evidence in court, the judge found that Schoenborn did not meet the criteria for a “high risk accused” ([https://www.canlii.org/en/bc/bcsc/doc/2010/2010bcsc220/2010bcsc220.html?autocompleteStr=R%20v%20Schoenbo&autocompletePos=1 ''R v Schoenborn'', 2017 BCSC 1556].  
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