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

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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.  
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
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  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)).

Revision as of 17:52, 22 June 2016



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. An inquiry must be held not later than two years after the verdict 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, and must make a disposition that is the least onerous and restrictive to the accused pursuant to s 672.54. 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 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)).