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Mental Health and the Criminal Code (14:IX): Difference between revisions

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Mental Health and the Criminal Code (14:IX) (view source)

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→‎1. Defence of Mental Disorder – Criminal Code, Section 16
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Then that person may be found not criminally responsible by reason of a mental disorder (NCRMD). 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 be detained in a psychiatric hospital. Alternately, and more often in practice, the court can defer this decision to the British Columbia Review Board. If the accused is not found to be a significant threat to public safety (discussed below), he or she must be given an absolute discharge.  
Then that person may be found not criminally responsible by reason of a mental disorder (NCRMD). 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 be detained in a psychiatric hospital. Alternately, and more often in practice, the court can defer this decision to the British Columbia Review Board. If the accused is not found to be a significant threat to public safety (discussed below), he or she must be given an absolute discharge.  


When dealing with the question 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 (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 s 7 of the Charter by an Ontario court (R. v Hussein and Dwornik (2004), 191 C.C.C. (3d) 113 (O.S.C.J.)). However, R v Hussein was not followed in a more recent Ontario case (Phaneuf v Ontario (2010), 104 O.R. (3d) 392). The Court ruled that the relevant provisions in the Criminal Code(specifically s.672.11) cannot be interpreted as requiring that accused who are ordered assessed in custody in a hospital  must be taken immediately to that hospital and cannot be detained in a detention centre pending transfer to the hospital. Accordingly, it was held that R v Hussein was wrongly decided. The accused is always entitled to put mental capacity for criminal responsibility into issue by calling evidence relating to it. The Crown is allowed to  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-insane 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 (R. vSwain(1991), 63 CCC (3d) 481 (SCC)).An accused is presumed to not suffer from a mental disorder that exempts him or her from criminal responsibility until the contrary is proven on a balance of probabilities (s 16(2)). An official finding that the accused is NCRMD will occur only when the Crown has otherwise proven the accused guilty beyond a reasonable doubt and the mental disorder exempting the accused from criminal responsibility is proven on a balance of probabilities, the burden of which is on the party that raises the issue (s 16(3)).
When dealing with the question 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 (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 s 7 of the ''Charter'' by an Ontario court (''R. v Hussein and Dwornik'' (2004), 191 C.C.C. (3d) 113 (O.S.C.J.)). However, ''R v Hussein'' was not followed in a more recent Ontario case (''Phaneuf v Ontario'' (2010), 104 O.R. (3d) 392). The Court ruled that the relevant provisions in the ''Criminal Code'' (specifically s.672.11) cannot be interpreted as requiring that accused who are ordered assessed in custody in a hospital  must be taken immediately to that hospital and cannot be detained in a detention centre pending transfer to the hospital. Accordingly, it was held that ''R v Hussein'' was wrongly decided.  
 
The accused is always entitled to put mental capacity for criminal responsibility into issue by calling evidence relating to it. The Crown is allowed to  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-insane 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 (''R. v Swain'' (1991), 63 CCC (3d) 481 (SCC)).
 
An accused is presumed to not suffer from a mental disorder that exempts him or her from criminal responsibility until the contrary is proven on a balance of probabilities (s 16(2)). An official finding that the accused is NCRMD will occur only when the Crown has otherwise proven the accused guilty beyond a reasonable doubt and the mental disorder exempting the accused from criminal responsibility is proven on a balance of probabilities, the burden of which is on the party that raises the issue (s 16(3)).
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