Mental Health and the Criminal Code (14:VIII)
A. Fitness to Stand Trial
An accused is presumed fit to stand trial until the contrary is proven on a balance of probabilities (s 672.22 of the Criminal Code). The burden of proof is on whichever side raises the issue (s 672.23(2)).
An accused is deemed “unfit to stand trial” under s 2 of the Criminal Code if he or she is incapable of understanding the nature, object or possible consequences of the criminal proceedings, or is unable to communicate with counsel on account of mental illness. If the verdict is that the accused is unfit to stand trial, any plea that has been made will be set aside and the jury will be discharged (s 672.31). Under s 672.32 the accused may stand trial once he or she is fit to do so. For more information on the test of fitness see R. v Taylor (1992), 77 CCC (3d) 551.
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 (s 672.23).
If a person is found unfit to stand trial, he or she may be detained in a mental health facility until he or she recovers sufficiently to be able to proceed with the trial (s 672.58). However, the court cannot make a disposition order to have an accused detained in a health facility without the consent of the hospital or treating physician (s 672.62(1)). A recent Supreme Court of Canada case, R. v. Conception, 2014 SCC 60, confirmed the need for such consent, finding that consent is required in its entirety not simply to the treatment aspects. The exception to this is the rare case in which a delay in treatment would breach the accused’s rights under the Charter and an order for immediate treatment is an appropriate and just remedy for that breach. An inquiry by the court must be held not later than two years after the verdict of being deemed “unfit” and every two years after that. The court may now extend the period for holding an inquiry where it is satisfied that such an extension is necessary to determine if sufficient evidence can be adduced to put the person on trial (s 672.33).
After the court finds a person unfit to stand trial, a disposition hearing must be held by the review board within 45 days, taking into account the safety of the public and the needs of the accused. While the term in section 672.54 “least onerous and least restrictive” order has been replaced by “necessary and appropriate”, the intent of the legislation has not changed, as explained under Disposition Hearings after NCRMD. A recent case, Evers v British Columbia (Adult Forensic Psychiatric Services), 2009 BCCA 560, stated that the review board erred in proceeding with a disposition hearing in the absence of the accused without first attempting to ensure the accused’s presence by issuing a warrant or allowing a short adjournment. Further, the court stated that fear of non-compliance with medical treatment cannot be the main objective motivating a detention order, nor can the Review Board impose treatment as a condition on the accused.
In Demers v Attorney General of Canada, 2004 SCC 46, the court found that the former sections 672.33, 672.54 and 672.81(1) violated the Charter rights of permanently unfit, non-dangerous accused persons. The court wanted to ensure that an accused found unfit will not be detained unnecessarily when he or she poses no risk to the public. Pursuant to this decision, these sections have been amended.
Now, a review board may make a recommendation to the court to enter a stay of proceedings if it has held a hearing and is of the opinion that the accused remains chronically unfit and does not pose a significant threat to public safety. Notice of intent to make such a recommendation must be given to all parties with a substantial interest in the proceedings (s 672.851).
The review board, the prosecutor, or the accused may apply to order an assessment of the accused’s mental condition if necessary to make a recommendation for a stay of proceedings, or to make a disposition if no recent assessment has been made (s 672.121). A medical practitioner or any person designated by the Attorney General may also make an assessment. An assessment order cannot be used to detail an accused in custody unless it is necessary to assess the accused, or the accused is already in custody or it is otherwise required.
Appeal for an order for a stay of proceedings may be allowed if the Court of Appeal finds the assessment order unreasonable or unsupported by evidence.
A recent case (R v J.J.G. (2014) BCSC 2497) considered the issue of whether statements made by an accused during the fitness to stand trial hearing are admissible in the trial. In this case, the accused made an admission of guilt during the fitness hearing. The court ruled that the statements were inadmissible at trial.
B. Criminal Responsibility
1. Defence of Mental Disorder – Criminal Code, Section 16
If an accused is found to have been suffering from a mental illness at the time of the offence which resulted in:
- A lack of appreciation of the nature and quality of the offence (i.e. he or she could not foresee and measure the physical consequences of the act or omission) (R. v Cooper (1980), 1 S.C.R. 1140; or
- A failure to realize that the act or omission was wrong (i.e. he or she did not know it was something that one should not do for moral or legal reasons (Chaulk v The Queen (1990), 3 S.C.R. 1303;
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 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-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)).
C. Disposition Hearings After NCRMD
A finding of NCRMD ends criminal proceedings against the accused. There will then be a disposition hearing either in court or by the review board (s 672.38). Under s 672.54 a person found NCRMD may be:
- a) discharged absolutely where the review board or court finds that the accused is not a significant threat to the safety of the public;
- b) discharged subject to conditions considered appropriate by the court or review board; or
- c) detained in custody in a psychiatric hospital subject to conditions considered appropriate by the court or review board.
With the passage of 2014 Bill C-14, 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. Amendments from Bill C-14 have also made changes to other sections of the Mental Disorder provisions of the Criminal Code. Some of them are highlighted below.
When the review board renders a decision under s 672.54, it must take into consideration “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 Winko v. the Director of the Forensic Psychiatric Hospital  2 S.C.R. 625 (“Winko”) still apply. Please see Ont. RB  O.R.B.D No. 1876, par. 35; BCRB Decision/Reasons In the Matter of Vernon Roy Mazzei, July 15, 2014 (BCRB Website); Ranieri (Re) 2015 ONCA 444; Re Osawe 2015 ONCA 280; McAnuff (Re) 2016 ONCA 280, par 22. Therefore, the principle of making the least onerous and least restrictive order still applies to the Review Board decisions.
The review board must review cases in which a person is found NCRMD at least once a year if the person is still detained in a mental facility or is fulfilling conditions pursuant to the disposition hearing (s 672.81). However, as a result of the operation of s 672.54, it is possible for individuals found NCRMD to be subject 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 s 672.54, the Supreme Court in Winko v Director of Forensic Psychiatric Institute and the Attorney General of BC,  2 S.C.R. 625 [Winko] rejected arguments that s 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 that is serious in the sense of extending beyond the mere trivial or annoying. 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 take into consideration a broad range of evidence, including the past and expected course of the accused’s treatment, present medical condition, past offences, the accused’s plans for the future and any community support that exists. See Winko for a complete discussion of the application of s 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 Pinet v St. Thomas Psychiatric Hospital,  S.C.J. 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, but it also applies to the particular conditions forming part of that disposition. In Penetanguishene Mental Health Center v Ontario (Attorney General),  S.C.J. 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, considering public protection and maximisation of the accused’s liberties.
The review board’s powers were considered in Mazzei v BC (Director A.F.P.S.),  S.C.C 7. The board’s mandate requires it to hold the power to make orders and conditions binding on any party to the review board hearing, including the director of the psychiatric hospital. It does not prescribe or administer treatment. It may supervise and require reconsideration of treatment provided. Treatment is incidental to the objectives and focus on public safety and reintegration. The 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 manual on Criminal Law and Mental Health Issues.
1. Recent Changes
Bill C-14, the “Not Criminally Responsible Reform Act”, which received royal assent in April, 2014, came into force on July 11 2014. This new legislation is meant to strengthen the Criminal Code’s decision-making process relating to the accused persons found NCRMD to make public safety the primary consideration, enhance victim safety, and provide victims with a stronger voice in the process.
The primary function of the amendment is 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 s 672.81(1.3), the accused was over 18 when the offence occurred, and one of two additional factors are present. The first possibility is when the court finds that there is a substantial likelihood that the accused will use violence that could endanger the life or safety of another person. The designation is also available when the court is of the opinion that the acts underlying the offence were of a brutal nature that indicates a risk of grave physical or psychological harm to another person.
In making this designation, the court must consider certain factors, outlined in 672.64(2). Some of the factors are the nature of the offence, the accused’s current mental state and expert opinion. Once a person is found to be a high-risk accused, they are subject to mandatory hospital detention and 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.
The Bill also aims 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 being reviewed by the court, victims may file impact statements which then must 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 are unnecessarily punitive in nature. Furthermore, it was 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 and manage NCMRD patients will be diminished. For a full discussion of these concerns, see Lisa Grantham, “Bill C-14: A Step Backwards for the Rights of Mentally Disordered Offenders in the Canadian Criminal Justice System”. However, since the provisions came into force, there have not been any significant changes at the Review Board level yet.
In BC there is no person currently designated as a high-risk accused. As of April 2015, the only BC case involving a determination of high-risk accused status is R v Schoenborn (2010) BSCS 220. The accused was found NCRMD and is 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, Schoenborn was found not to be a high-risk accused (R v Schoenborn, 2017 BSCS 1556).
There is some discrepancy between the provinces as to whether one can be classified as a high-risk accused retroactively. While in British Columbia it has found that retroactive “high risk” designation being applied to trials that happened before the legislation came into effect is not unconstitutional (see R v Schoenborn, 2015 BSCS 2254), in Quebec it was decided that a retroactive application is unconstitutional (see R v C.R., 2015 J.Q. no 2448).
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