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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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 made an admission of guilt during the fitness hearing. The court ruled that the statements were inadmissible at trial.  
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 ==
== B. Criminal Responsibility ==
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Significant criticism has been directed at these provisions prior to their coming into force, suggesting that they will do little to actually 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.  
Significant criticism has been directed at these provisions prior to their coming into force, suggesting that they will do little to actually 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. The BC  Review Board is considering whether supervised outings would aid in his rehabilitation. However, there is a strong likelihood that the  prosecution will make an application for Schoenborn’s designation as a high-risk accused.
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. The BC  Review Board is considering whether supervised outings would aid in his rehabilitation. However, there is a strong likelihood that the  prosecution will make an application for Schoenborn’s designation as a high-risk accused. There is currently a ''Charter'' challenge due to the retroactive 'high risk' designation being applied to trials that happened before the legislation came into effect.


Currently there is only one instance of the high-risk accused designation in Canada, applied in a decision of the Tribunal Administratif du Quebec in 2014 (2014 QCTAQ 09272).
Currently there is only one instance of the high-risk accused designation in Canada, applied in a decision of the Tribunal Administratif du Quebec in 2014 (2014 QCTAQ 09272).
=== 2. Older Changes (2005 –2007) ===
==== a) Review Board Powers ====
Several amendments expand the role of the review board. The review board may adjourn a hearing for 30 days (s 672.5), convene a hearing and issue a summons or warrant. With the consent of the Attorney General, the review board may, in certain circumstances, extend the time to review a disposition for up to 24 months (s 672.81).
==== b) Assessment Orders ====
The review board can order an assessment of the accused’s mental condition to help determine a disposition if no previous assessment was done, if none has been done within the past 12 months, or if the accused is transferred from outside the province. The assessment may also be ordered  when deciding whether to recommend that an inquiry be held to determine if a judicial stay of proceedings should be ordered for an accused  likely to be permanently unfit to stand trial. An assessment order is generally in force for 30 days, but can be extended to 60 (s 672.15).
==== c) Permanently Unfit Accused ====
The review board may refer the accused to court to consider a stay of proceedings. If there is evidence, including an assessment, that  suggests that the accused is permanently unfit and is not a significant threat, the court may grant a stay of proceedings (s 672.851).
==== d) Victims ====
After an NCRMD verdict and before disposition, the review board must ask whether the victim has been advised of the opportunity to make a  victim impact statement (VIS) (s 672.5(15.2)). Note that the victim is entitled to notice of hearing and relevant provisions of the ''Criminal  Code'' (s 672.5(5.1)). The victim can read or present a VIS unless it would interfere with the proper administration of justice (s 672.5(15.1)). The hearing may be adjourned to allow time for the victim to prepare the statement (s 672.5(15.3)).
==== e) Transfer Provisions ====
If a transfer would promote recovery or reintegration of an accused found NCRMD and consent is received from the Attorney General and review board of both the sending and receiving jurisdictions, an accused can be transferred to another province (s 672.82(1)). A transfer may happen regardless of whether an accused is in custody or on a conditional discharge.
==== f) Police Powers to Enforce Dispositions ====
Amendments have been made to expand the choices for the police in arresting a person found NCRMD or unfit to stand trial. For instance, the police could issue a summons or appearance notice instead of using detention. The police can also let an accused stay in the place he or she is  required to reside instead of holding the accused in custody until seen by a justice of the peace.
==== g) Publication Ban ====
The review board must make an order protecting the identity of victims or witnesses under 18 years old in relation to sexual offences,  prostitution, money laundering or child pornography related offences (ss 672.501(1) and (2)). An application may be made to protect the identity of a victim or witness of any age if required for the proper administration of justice. A hearing will be held to assess risks, interests and alternatives (s 672.501(3)). Please see s 672.501 for more details.
==== h) Statutory Timelines ====
A court disposition no longer ceases to be in force after 90 days (s 672.47(3)), but instead remains in force until the review board replaces it (s 672.63). Also, there is no maximum period for the detention of the accused.
'''NOTE:''' For more information regarding review board procedures, students may consult the following resources and resource persons:
*'''CLAS’ Mental Health Law Program''' (see [[Introduction to Mental Health Law (14:II)#2. Resources | section II.B.2, Resources]])
*'''British Columbia Review Board''' (see [[Introduction to Mental Health Law (14:II)#2. Resources | section II.B.2, Resources]])
*'''Lyle Hillaby, Crown Counsel'''
**Telephone: (604) 775-1125
**Mr. Hillaby has extensive experience at review board hearings and has volunteered to be a contact person for LSLAP clinicians.
LSLAP
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