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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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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.
When the Review Board renders a decision under section 672.54, it must consider “the need to protect the public from dangerous persons, the mental condition of the accused, the reintegration of the accused into society and the other needs of the accused.”  The 2014 Bill C-14 amendments have changed the wording from requiring the Review Board to make a decision that is “least onerous and least restrictive” to one that is “necessary and appropriate”. However, subsequent Review Board decisions and court decisions have confirmed that the intent and guiding principles from the Supreme Court of Canada case of [https://www.canlii.org/en/ca/scc/doc/1999/1999canlii694/1999canlii694.html?autocompleteStr=1999%202%20SCR%20625&autocompletePos=1 ''Winko v the Director of the Forensic Psychiatric Hospital'' [1999] 2 SCR 625] [''Winko''] still apply. Therefore, the principle of making the least onerous and least restrictive order still applies to Review Board decisions.  For further related case law please see [https://www.canlii.org/en/on/onca/doc/2015/2015onca444/2015onca444.html?resultIndex=1 ''Ranieri (Re)'' 2015 ONCA 444]; [https://www.canlii.org/en/on/onca/doc/2015/2015onca280/2015onca280.html?resultIndex=1 ''Re Osawe'', 2015 ONCA 280]; [https://www.canlii.org/en/on/onca/doc/2016/2016onca280/2016onca280.html?resultIndex=1 ''McAnuff (Re)'' 2016 ONCA 280].
The Review Board must assess cases in which a person is found NCRMD at least once per year if the person is still detained in a mental facility or is fulfilling conditions pursuant to the disposition hearing (''Criminal Code'', s 672.81). However, as a result of the operation of section 672.54, it is possible for individuals found NCRMD to be subjected 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 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'', [2003] SCJ 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 – 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.
For information on pleading “Mental Disorder” and “Non-Mental Disorder” automatism, please consult the Continuing Legal Education Society’s course “Criminal Law and Mental Health Issues”.
=== 1. Recent Changes ===


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.  
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There is some discrepancy between the provinces as to whether the “high-risk accused” designation can be applied retroactively. In British Columbia, it has been found that applying a retroactive “high risk” designation to trials that occurred before the legislation came into effect is not unconstitutional ([https://www.canlii.org/en/bc/bcsc/doc/2017/2017bcsc1556/2017bcsc1556.html?resultIndex=3 ''Schoenborn'' 2015 BCSC 2254]). However, Quebec courts made the opposite determination in 2015 (see [https://www.canlii.org/fr/qc/qccq/doc/2015/2015qccq2299/2015qccq2299.html?resultIndex=1 ''R v CR'', 2015 JQ No 2448]).
There is some discrepancy between the provinces as to whether the “high-risk accused” designation can be applied retroactively. In British Columbia, it has been found that applying a retroactive “high risk” designation to trials that occurred before the legislation came into effect is not unconstitutional ([https://www.canlii.org/en/bc/bcsc/doc/2017/2017bcsc1556/2017bcsc1556.html?resultIndex=3 ''Schoenborn'' 2015 BCSC 2254]). However, Quebec courts made the opposite determination in 2015 (see [https://www.canlii.org/fr/qc/qccq/doc/2015/2015qccq2299/2015qccq2299.html?resultIndex=1 ''R v CR'', 2015 JQ No 2448]).
When the Review Board renders a decision under section 672.54, it must consider “the need to protect the public from dangerous persons, the mental condition of the accused, the reintegration of the accused into society and the other needs of the accused.”  The 2014 Bill C-14 amendments have changed the wording from requiring the Review Board to make a decision that is “least onerous and least restrictive” to one that is “necessary and appropriate”. However, subsequent Review Board decisions and court decisions have confirmed that the intent and guiding principles from the Supreme Court of Canada case of [https://www.canlii.org/en/ca/scc/doc/1999/1999canlii694/1999canlii694.html?autocompleteStr=1999%202%20SCR%20625&autocompletePos=1 ''Winko v the Director of the Forensic Psychiatric Hospital'' [1999] 2 SCR 625] [''Winko''] still apply. Therefore, the principle of making the least onerous and least restrictive order still applies to Review Board decisions.  For further related case law please see [https://www.canlii.org/en/on/onca/doc/2015/2015onca444/2015onca444.html?resultIndex=1 ''Ranieri (Re)'' 2015 ONCA 444]; [https://www.canlii.org/en/on/onca/doc/2015/2015onca280/2015onca280.html?resultIndex=1 ''Re Osawe'', 2015 ONCA 280]; [https://www.canlii.org/en/on/onca/doc/2016/2016onca280/2016onca280.html?resultIndex=1 ''McAnuff (Re)'' 2016 ONCA 280].
The Review Board must assess cases in which a person is found NCRMD at least once per year if the person is still detained in a mental facility or is fulfilling conditions pursuant to the disposition hearing (''Criminal Code'', s 672.81). However, as a result of the operation of section 672.54, it is possible for individuals found NCRMD to be subjected 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 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'', [2003] SCJ 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 – 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.
For information on pleading “Mental Disorder” and “Non-Mental Disorder” automatism, please consult the Continuing Legal Education Society’s course “Criminal Law and Mental Health Issues”.


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