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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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{{REVIEWED LSLAP | date= | {{REVIEWED LSLAP | date= August 11, 2023}} | ||
{{LSLAP Manual TOC|expanded = mentalhealth}} | {{LSLAP Manual TOC|expanded = mentalhealth}} | ||
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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 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, 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]. | 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]. | ||
In [https://www.canlii.org/en/nb/nbca/doc/2019/2019nbca89/2019nbca89.html ''R. v. Daley'', 2019 NBCA 89], the court has highlighted the preferred interpretation of the test for fitness. The court has adopted an approach from [https://www.canlii.org/en/on/onca/doc/2007/2007onca770/2007onca770.html ''R. v. Morrissey'', 2007 ONCA 770] in which the accused’s communication abilities must permit them to seek and receive effective legal advice. In other words, their ability to meaningfully be present and participate in the trial should be considered. For more information on the test for fitness to stand trial, see [https://www.canlii.org/en/bc/bcsc/doc/2020/2020bcsc1437/2020bcsc1437.html ''R. v Kampos'', 2020 BCSC 1437] at paras 19-24. | |||
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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An accused may be found “Not Criminally Responsible on account of a Mental Disorder” (NCRMD), if an accused is found to have been suffering from a mental illness at the time of the offence which resulted in either: | An accused may be found “Not Criminally Responsible on account of a Mental Disorder” (NCRMD), if an accused is found to have been suffering from a mental illness at the time of the offence which resulted in either: | ||
*A lack of appreciation of the nature and quality of the offence (i.e. they could not foresee and measure the physical consequences of the act or omission) ([https://www.canlii.org/en/ca/scc/doc/1979/1979canlii63/1979canlii63.html?resultIndex=1 ''R v Cooper'' (1980), 1 SCR 1114]; or | * A lack of appreciation of the nature and quality of the offence (i.e. they could not foresee and measure the physical consequences of the act or omission) ([https://www.canlii.org/en/ca/scc/doc/1979/1979canlii63/1979canlii63.html?resultIndex=1 ''R v Cooper'' (1980), 1 SCR 1114]; or | ||
*A failure to realize that the act or omission was wrong (i.e. they did not know it was something that one should not do for moral or legal reasons ([https://www.canlii.org/en/ca/scc/doc/1990/1990canlii34/1990canlii34.html?resultIndex=1 ''Chaulk v The Queen'' (1990), 3 SCR 1303]. | * A failure to realize that the act or omission was wrong (i.e. they did not know it was something that one should not do for moral or legal reasons ([https://www.canlii.org/en/ca/scc/doc/1990/1990canlii34/1990canlii34.html?resultIndex=1 ''Chaulk v The Queen'' (1990), 3 SCR 1303]. | ||
This is a verdict distinct from either guilty or not guilty. If an accused is found NCRMD, the court can decide whether the accused will receive an absolute discharge, a conditional discharge, or a custody disposition to be detained in a psychiatric hospital. Alternatively, and more often in practice, the court can defer this decision to the provincial Review Board designated under section 672.38 of the ''Criminal Code''. If the accused is not found to be a significant threat to public safety (discussed below), they must be given an absolute discharge. | This is a verdict distinct from either guilty or not guilty. If an accused is found NCRMD, the court can decide whether the accused will receive an absolute discharge, a conditional discharge, or a custody disposition to be detained in a psychiatric hospital. Alternatively, and more often in practice, the court can defer this decision to the provincial Review Board designated under section 672.38 of the ''Criminal Code''. If the accused is not found to be a significant threat to public safety (discussed below), they must be given an absolute discharge. | ||
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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. | ||
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 | 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 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. | 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. | ||
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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 | Bill C-14 also aimed to improve victim’s rights, by providing notice to victims of the intended 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”. 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. | 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. | ||
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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 ''R v 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 c CR'', 2015 QCCQ 2299]). | 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 ''R v 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 c CR'', 2015 QCCQ 2299]). | ||
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 British Columbia (Forensic Psychiatric Institute)'', 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 | 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 British Columbia (Forensic Psychiatric Institute)'', 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 ''Osawe (Re)'', 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. | 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. | ||
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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. | 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 | For information on pleading “Mental Disorder” and “Non-Mental Disorder” automatism, please consult the Continuing Legal Education Society’s course “[https://online.cle.bc.ca/CoursesOnDemand/ContentByCourse/Papers?courseId=4054 Criminal Law and Mental Health Issues]”. | ||
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