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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)
Revision as of 22:25, 10 October 2022
, 22:25, 10 October 2022→C. Disposition Hearings After NCRMD
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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 Osawe'', 2015 ONCA 280]; [https://www.canlii.org/en/on/onca/doc/2016/2016onca280/2016onca280.html?resultIndex=1 ''McAnuff (Re)'' 2016 ONCA 280]. | 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 Osawe'', 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. | ||