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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)
Revision as of 22:38, 11 January 2022
, 22:38, 11 January 2022→1. Defence of Mental Disorder – Criminal Code, Section 16
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When addressing the matter of the accused’s mental capacity for criminal responsibility, the court has much the same power to order an assessment to obtain evidence on this question (''Criminal Code'', s 672.11(b)) as it does with respect to an accused’s fitness to stand trial. Pre-trial detention of an accused while awaiting in-custody assessments was held to violate section 7 of the Charter by an Ontario court ([https://www.canlii.org/en/on/onsc/doc/2004/2004canlii36057/2004canlii36057.html?resultIndex=1 ''R v Hussein and Dwornik'' (2004), 191 CCC (3d) 113 (OSCJ)] [''Hussein'']). However, ''Hussein'' was not followed in a more recent Ontario case ([https://www.canlii.org/en/on/onca/doc/2010/2010onca901/2010onca901.html?resultIndex=1 ''Her Majesty the Queen in Right of Ontario v Phaneuf'' [Indexed as: ''Ontario v Phaneuf''] (2010), 104 OR (3d) 392 at para 19]). The Ontario Court ruled that the relevant provisions in the ''Criminal Code'', specifically s.672.11, cannot be interpreted as requiring accused individuals who are ordered to be assessed in custody in a hospital to be taken immediately to that hospital. It cannot be read as prohibiting their detainment in a detention centre pending transfer to the hospital. Accordingly, it was held that Hussein was wrongly decided. | When addressing the matter of the accused’s mental capacity for criminal responsibility, the court has much the same power to order an assessment to obtain evidence on this question (''Criminal Code'', s 672.11(b)) as it does with respect to an accused’s fitness to stand trial. Pre-trial detention of an accused while awaiting in-custody assessments was held to violate section 7 of the Charter by an Ontario court ([https://www.canlii.org/en/on/onsc/doc/2004/2004canlii36057/2004canlii36057.html?resultIndex=1 ''R v Hussein and Dwornik'' (2004), 191 CCC (3d) 113 (OSCJ)] [''Hussein'']). However, ''Hussein'' was not followed in a more recent Ontario case ([https://www.canlii.org/en/on/onca/doc/2010/2010onca901/2010onca901.html?resultIndex=1 ''Her Majesty the Queen in Right of Ontario v Phaneuf'' [Indexed as: ''Ontario v Phaneuf''] (2010), 104 OR (3d) 392 at para 19]). The Ontario Court ruled that the relevant provisions in the ''Criminal Code'', specifically s.672.11, cannot be interpreted as requiring accused individuals who are ordered to be assessed in custody in a hospital to be taken immediately to that hospital. It cannot be read as prohibiting their detainment in a detention centre pending transfer to the hospital. Accordingly, it was held that Hussein was wrongly decided. | ||
The accused is always entitled to raise a lack of mental capacity when facing criminal liability by calling evidence relating to it. The Crown may adduce evidence on the accused’s mental capacity for criminal responsibility where the accused has raised the issue or has attempted to raise a reasonable doubt using a defence of non-mental disorder automatism (a mental state lacking the voluntariness to commit the crime). Where the accused pleads not guilty, does not put mental capacity in issue and does not raise the defence of non-mental disorder automatism, the court may allow the Crown to adduce evidence on the issue of mental capacity only after it has been determined that the accused committed the act or omission ([https://www.canlii.org/en/ca/scc/doc/1991/1991canlii104/1991canlii104.html?autocompleteStr=R%20v%20Swain%2C%20%5B1991%5D%201%20SCR%20933&autocompletePos=1 ''R v Swain'' (1991), 63 CCC (3d) 481 (SCC) | The accused is always entitled to raise a lack of mental capacity when facing criminal liability by calling evidence relating to it. The Crown may adduce evidence on the accused’s mental capacity for criminal responsibility where the accused has raised the issue or has attempted to raise a reasonable doubt using a defence of non-mental disorder automatism (a mental state lacking the voluntariness to commit the crime). Where the accused pleads not guilty, does not put mental capacity in issue and does not raise the defence of non-mental disorder automatism, the court may allow the Crown to adduce evidence on the issue of mental capacity only after it has been determined that the accused committed the act or omission ([https://www.canlii.org/en/ca/scc/doc/1991/1991canlii104/1991canlii104.html?autocompleteStr=R%20v%20Swain%2C%20%5B1991%5D%201%20SCR%20933&autocompletePos=1 ''R v Swain'' (1991), 63 CCC (3d) 481 (SCC)]). | ||
An accused is presumed to not suffer from a mental disorder that exempts them from criminal responsibility until the contrary is proven on a balance of probabilities (''Criminal Code'', s 16(2)). An official finding that the accused is NCRMD will only occur when the Crown has otherwise proven the guilt of the accused beyond a reasonable doubt, and when the mental disorder exempting the accused from criminal responsibility is proven on a balance of probabilities. The burden of proof is on the party that raises the issue (''Criminal Code'', s 16(3)). | An accused is presumed to not suffer from a mental disorder that exempts them from criminal responsibility until the contrary is proven on a balance of probabilities (''Criminal Code'', s 16(2)). An official finding that the accused is NCRMD will only occur when the Crown has otherwise proven the guilt of the accused beyond a reasonable doubt, and when the mental disorder exempting the accused from criminal responsibility is proven on a balance of probabilities. The burden of proof is on the party that raises the issue (''Criminal Code'', s 16(3)). | ||
