CRIMINAL CODE Special Rules and Practice Notes BAIL MENTAL HEALTH ASPECTS OF CRIMINAL LAW AND PRACTICE

Transcription

1 CRIMINAL CODE Special Rules and Practice Notes BAIL MENTAL HEALTH ASPECTS OF CRIMINAL LAW AND PRACTICE The Honorable Judge J. A. Nightingale Provincial Court of Saskatchewan (Meadow Lake) Revised May 2003

2

3 Saskatchewan: Bar Admission Program i TABLE OF CONTENTS I. CRIMINAL CODE SPECIAL RULES AND PRACTICE NOTES...1 A. MINIMUM PUNISHMENTS...1 B. FIREARMS POSSESSION PROHIBITIONS...2 C. JURISDICTION...3 D. PUBLICATION BANS...3 E. SPECIAL PROCEDURAL RULES FOR EVIDENCE IN SEXUAL OFFENCES... 3 F. PLAYGROUND ORDERS...3 G. APPEARANCE OF ACCUSED BY COUNSEL...4 H. SENTENCING MATTERS...4 II. BAIL...6 A. GROUNDS FOR DETENTION...6 B. ONUS...7 C. EVIDENCE AT HEARING...8 D. APPEARANCE BY TELEPHONE...8 E. SURETIES...9 F. FIREARMS PROHIBITIONS...10 G. NON-COMMUNICATION CLAUSES...10 H. YOUNG PERSONS...10 I. BAIL REVIEWS J. BAIL FOR MURDER CHARGES...12 K. MISCELLANEOUS MATTERS...12 III. MENTAL HEALTH ASPECTS OF CRIMINAL LAW AND PRACTICE...13 A. CODE PROVISIONS CONCERNING FITNESS...14 B. MENTAL DISORDER AT TIME OF OFFENCE...15 C. PROVINCIAL MENTAL HEALTH SERVICES ACT PROVISIONS...15

4

5 Saskatchewan: Bar Admission Program 1 I. CRIMINAL CODE SPECIAL RULES AND PRACTICE NOTES Within the Criminal Code are most of the rules you must follow in the practice of criminal law in Canada. It is currently 849 sections long, not including those sections which have been further subdivided and then re-subdivided. Reading the Code is rather like reading the Talmud, Torah or Bible - one learns something new at every sitting. Unfortunately, this learning is not a luxury if one wants to carry on a knowledgeable practice in criminal law. While not suggesting that the Code is good bedtime reading, I do recommend browsing through it whenever you have the opportunity; you will often be amazed by what you thought you knew, but didn t. In the back of the Martin s edition of the Code is also a very handy grid which contains a wealth of information about which offences are dual procedure, which carry minimum punishments upon conviction and so forth. The material which follows is organized (a term used very loosely here) in the approximate sequence in which the various rules are set out in the Code. Another excellent practice is to create for yourself a shorthand index to the Code, providing yourself with a ready reference to the oft-used but deeply buried sections. A. MINIMUM PUNISHMENTS 1. Criminal Driving Offences s. 253(a), s. 253(b) and s. 254(5) The punishments for these are set out in s. 255: $600 minimum for first conviction; 14 days for second conviction; 90 days for subsequent conviction. (All require service by the Crown for a notice under s. 727(1) on the accused prior to the entry of a plea.) Revised June 2005

6 2 Saskatchewan: Bar Admission Program 2. By s. 85, use of a firearm during the commission of an indictable offence: one year consecutive for first such offence; three years consecutive for each subsequent offence. 3. Section 220 Criminal negligence causing death using a firearm Section 236 Manslaughter, where firearm used Section 239 Attempted murder using firearm Section 244 Discharge of firearm in commission of wounding Section 272 Sexual assault using firearm Section 273(2) Aggravated sexual assault using a firearm Section 279 Kidnapping using firearm Section Hostage-taking using firearm Section 344 Robbery using firearm Section 346(1.1) Extortion using firearm all carry a four year minimum sentence. B. FIREARMS POSSESSION PROHIBITIONS Under s.109, a prohibition on possessing firearms, ammunition or other explosive substance is mandatory where the conviction is for an offence of violence punishable by 10 years imprisonment or more, whether or not such a sentence is actually imposed. The prohibition on the first such occasion is for a minimum of 10 years; a lifetime ban is imposed for a second or subsequent. Note too that the length of the prohibition is based on the commission of a qualifying offence, not on whether a prohibition has previously been ordered. The prohibition operates from the date an offender is released from prison in the event the sentence includes incarceration. Under s. 113, a person who is or may become subject to a prohibition may apply for an order permitting the person to have an authorization, licence or registration certificate which would permit the possession of a firearm or restricted weapon. This may be granted if the prohibition would preclude an offender from providing food for his family or if the prohibition would be a virtual prohibition against employment in the only vocation available to the offender.

7 Saskatchewan: Bar Admission Program 3 C. JURISDICTION Section Queen s Bench has jurisdiction over all indictable offences; Section sets out those offences which carry an election of trial mode; Section sets out those offences over which the Provincial Court has absolute jurisdiction; and Section No court or judge is seized with a case prior to the commencement of the calling of evidence. D. PUBLICATION BANS 1. At bail hearing - s At Preliminary Hearing - s At trial: (a) s. 486(3) - no age restrictions - listed sex offences; (b) General discretion if client has another related trial; (c) in camera hearing in very limited circumstances - public morals, maintenance of order or proper administration of justice - see R. v. Vandevelde, [1994] 7 W.W.R E. SPECIAL PROCEDURAL RULES FOR EVIDENCE IN SEXUAL OFFENCES Parliament continues to tinker with the Code concerning procedure and the receipt of evidence in sexual offence cases. See, generally, ss. 486 to 486.6, which deal with issues such as exclusion of the public from a trial, special assistance and support for witnesses who are vulnerable for a variety of reasons, the use of privacy screens, etc. See also s , having to do with the uses which may be made of video recordings of the disclosure made by witnesses under 18. F. PLAYGROUND ORDERS By operation of s. 161, whenever a person is convicted of a listed offence (most of the sexual assault and child abduction offences) where the victim was under age 14, the convicting judge shall consider making an order prohibiting the offender from being at or near schoolyards, playgrounds, etc. No specific criteria for the making of such orders is spelled out.

8 4 Saskatchewan: Bar Admission Program G. APPEARANCE OF ACCUSED BY COUNSEL Prior to amendments made in July, 2002 to the Code, a person charged with an indictable offence was required to personally appear at each and every occasion when her case was being spoken to. Now, using the new Designation of Counsel procedure set out in s , such an accused may appear by designated counsel for such matters as setting dates for preliminary hearing and trial, etc. The Provincial Court of Saskatchewan has issued a Practice Directive instructing counsel how to prepare and file the required notice in order to become designated counsel. The July 2002 amendments do not detract from the ability of the Crown under s. 650(1.1) to agree to an accused person appearing by counsel for routine appearances, so even where you have not taken the formal steps to become designated counsel, you may be able to appear without your client. Just ensure you have that prosecutorial consent before you tell your client to stay home! H. SENTENCING MATTERS 1. Alternative measures - s. 717 now endorses mediation efforts which have been in place for some time. Note these must be carried out within a programme authorized by the Attorney General. This does NOT mean that sentencing circles and other communitybased practices are prohibited unless the Attorney General has approved them. 2. Purposes and principles of sentencing - now set out in s. 718, s and s Courts have just embarked upon the analysis of how the enunciation of these principles ought to affect sentencing. See, in particular, s (e) when dealing with an Aboriginal offender.

9 Saskatchewan: Bar Admission Program 5 3. Sentencing is to occur as soon as practicable - s This section can create problems when all parties want to adjourn sentencing for long periods, such as for an offender who needs a driving license for seasonal employment or one who wants to paint herself in a good light by completing a rehabilitation programme prior to sentencing. 4. Disputed facts must be resolved. Section 723 allows a judge to require evidence be called where parties cannot agree on facts. Ensure that you have thoroughly reviewed Crown disclosure with your client and that facts have been resolved before everyone is standing in front of the judge; it is unseemly and messy to be arguing about such things in court, and your ability to remind the judge that your client has saved everyone from a trial is significantly impaired if the witnesses have to testify at a sentencing hearing! 5. Section 726 now requires the judge to ask your client whether she has anything to say. While some judges may take the view that an offender represented by counsel speaks to the court only through that counsel, other judges hold that the section ought to be literally followed and the offender asked for comment directly. Therefore, it is always wise to prepare your client for the judicial question. Depending upon the situation and the client, the very last thing you may want is the client sounding off just before she receives sentence. 6. Intermittent sentences. These may be imposed in any case where the term of incarceration is for 90 days or less. Be very careful to explain in detail to the client just what is involved in serving such a sentence, because they can be extremely onerous and, of course, take longer to serve than straight time. Now, at least, by s. 732(2), a judge may convert an intermittent sentence to straight time on application by the offender. Revised August 2002

10 6 Saskatchewan: Bar Admission Program II. BAIL Whether your client is granted bail will influence many other decisions as to how to defend her case - what election to make, whether to negotiate a plea bargain, etc. This is, of course, because time weighs very heavily on a remanded prisoner, and because a person in custody often has a difficult time amassing the money to pay for a full trial. A. GROUNDS FOR DETENTION Section Criminal Code amendments in the spring of 1998 added a new ground, which arguably alters the whole philosophy of the bail decision. While the presumption in most bail hearings is still that an accused should be released pending trial, the new third ground for detention expands broadly the criteria by which bail may be denied. The three matters a judge must consider are: 1. detention necessary to ensure attendance; 2. detention necessary for the protection or safety of the public having regard to all the circumstances, including any substantial likelihood that the accused will commit a criminal offense or interfere with the administration of justice; and 3. on any other just cause being shown, and without limiting generality, where detention is necessary to maintain confidence in the administration of justice (whose confidence?) having regard to all the circumstances including strength of Crown case, gravity of the nature of the offence and its circumstances and potential for long gaol. A body of precedent is growing which suggests that number 3 above requires something more than the general; something more than responding to the general notion that keeping any person charged with crime off the street will make society safer. See: R. v. Blind, Saskatchewan Court of Appeal, 17 th September, 1999, docket 7820, unreported; and R. v. Sheehan (2000), 38 C.R. (5 th ) 115 (Alberta Queen s Bench). Revised May 2003

11 Saskatchewan: Bar Admission Program 7 B. ONUS The philosophy of the bail provisions of the Criminal Code is that a person should be at large pending trial, so the onus is usually on the Crown to show cause why detention is necessary. The evidentiary burden is a balance of probabilities rather than beyond a reasonable doubt. This onus is reversed in certain circumstances - most often where an accused has been released on bail once and has either committed a fresh offence or broken the terms of release. See s. 515(6) for the categories: 1. charged with new indictable offence while on bail for an earlier indictable offence; 2. charged with indictable offence and not ordinarily Canadian resident; 3. charged under s. 145(2) - (5) (the various forms of failing to attend court) while on bail for another offence (need not be indictable); and 4. charged with trafficking or possession for purpose under the Controlled Drugs and Substances Act or conspiring to do so. The onus to show cause for release is also automatically on an accused who has been arrested and held following an allegation that she has breached a term of a conditional sentence. See s (2) of the Criminal Code. My normal practice in a reverse-onus bail hearing is to hear first from the prosecutor about the allegations and any prior criminal record for the accused that the Crown relies upon, then give counsel for the accused the opportunity to show cause, and finally to allow the Crown an opportunity for reply. This practice may vary from judge to judge. If in doubt about the procedure, ask before you start.

12 8 Saskatchewan: Bar Admission Program C. EVIDENCE AT HEARING Section 518(1)(d) of the Criminal Code permits the judge to receive and consider any relevant matter agreed between Crown and Defence, and it is common practice in Saskatchewan for bail hearings to be based on such agreements. The prosecutor simply gives a summary of what the accused is alleged to have done, because everyone knows that this is not a trial, and that by agreeing to the Crown s facts for purposes of bail hearing, the accused is not making trial admissions. Where there is no agreement on the allegations, the Crown must call evidence - but don t assume you can use a bail hearing to cross examine all the Crown s witnesses, because usually the prosecutor will call only the main investigator to describe the evidence, hearsay which is allowed by s. 518(l)(e). Rarely, an accused will give evidence at her bail hearing, perhaps to emphasize her willingness to abide by proposed conditions or to explain a compelling personal circumstance. Note that by s. 518(1)(b) the accused is not a compellable witness at the bail hearing and that no one except her lawyer may ask her questions about the alleged offence BUT if she chooses to talk about that, then she may be cross examined about it. This would be a serious blunder, since any answers under oath would presumably be available at her later trial to attack her credibility if there were any inconsistencies. D. APPEARANCE BY TELEPHONE For those of you practicing in rural areas, a handy amendment was included in the 1998 amendments - by s. 515(2.2) and (2.3) a bail hearing may be conducted with the accused appearing by telephone if the parties agree. This may be useful where the client is in, say the Prince Albert Correctional Center and everyone else is in Estevan or Meadow Lake.

13 Saskatchewan: Bar Admission Program 9 E. SURETIES Sometimes a judge will only release your client on bail if he can put up some money or property to guarantee his return to court and his good behaviour. Sometimes the prosecutor will agree to the release of your client without a bail hearing when there is bail money available. Obviously the idea is that a person with several thousand dollars at stake will take extra care to meet his bail obligations. Remember that when cash is used as bail, it will be received by the court under the accused s name, even if it s someone else s. Thus when a mother or uncle or friend offers to help out with bail money, they will not only lose it if the accused breaks bail, the money will be returned to the accused at the end of the day if he has not broken bail. Talk as well with your principal about assignments of bail; often such an assignment is prepared by your office, executed by the client and filed with the clerk of the court so that the cash will be sent to you to satisfy your bill once the trial is done. Sometimes cash is not available to your client, but either he or a third party is willing to offer something of value as a surety. If the court decides to release a person under these conditions, the order will simply refer to a sufficient surety. This means sufficient to the Crown, and in my experience you want to be very careful to have the prosecutor s acceptance of what is available by way of surety before you lock your client s bail position into offering it. Put more simply, most prosecutors will not accept uncle Fred s 1967 Lincoln or his grain auger as a sufficient surety because, should the accused default, it would be extremely difficult and cumbersome for the Crown to realize on its security. What is most often acceptable is an encumbrance on someone s real estate, since this may be registered against the title. The point is to obtain the Crown s acceptance of the proposed item(s) before you take the proposal to the judge, since once the bail decision is made, it can be difficult to change it, and you do not want your client remanded in custody only because Uncle Fred s Lincoln isn t acceptable as security. Revised May 2003

14 10 Saskatchewan: Bar Admission Program F. FIREARMS PROHIBITIONS When the judge decides to release an accused person who stands charged with one or more of a variety of offences of threatened or performed violence, the judge is required, by s. 515(4.1) of the Criminal Code, to include in the bail terms a prohibition against possessing any of a number of potential weapons, and may only decline to make such an order if she considers it unnecessary. G. NON-COMMUNICATION CLAUSES Similarly, where the charges include criminal harassment or threatened or performed violence, the bail judge must consider whether to include as a term of release the requirement that the accused not have contact with the complainant(s). H. YOUNG PERSONS The introduction of the Youth Criminal Justice Act (Y.C.J.A.) in April of 2003 has brought some changes to the bail question where the accused is a young person. Section 28 imports to the Youth Justice Court the general Criminal Code provisions concerning bail, including those of s. 515 of the Code. However, other sections of the Y.C.J.A. add further requirements when considering the case of a young person. For example, a young person must be held separate and apart from adults in custody (s. 30(3) of the Y.C.J.A.) and the Youth Justice Court Judge may order a young person released into the custody of a responsible person pursuant to s. 31 of the Y.C.J.A. This will most often be a parent, but really anyone with the ability to supervise and control the young person may stand as a responsible person. Note too that s. 29 of the Y.C.J.A. circumscribes the use of pre-conviction detention for young people, and introduces a presumption against custody on the secondary ground in cases where the young person could not be sentenced to custody pursuant to s. 39(1)(a) to (c) of the Y.C.J.A. Where the bail decision involving a young person has been made by a justice who is not a Youth Justice Court Judge (for instance, by a Justice of the Peace), s. 33 of the Y.C.J.A. provides that the loser of the hearing, either the Crown or the young person, may apply for a fresh bail hearing before a Youth Justice Court Judge on two days notice to the opposing party.

15 Saskatchewan: Bar Admission Program 11 A dramatic change between the former Young Offenders Act and the Y.C.J.A., and one which will likely have a significant impact on bail decisions, is found in s. 19 of the Y.C.J.A. Section 19 encourages the extensive use of conferences to assist the Youth Justice Court to make all sorts of decisions, including whether or not to grant bail. The use of such conferences, which might involve the young person s family, the community justice committee (if there is one), and other community resources, will probably change the nature of bail hearings for many young people in conflict with the law, rendering the hearing much less formal and resulting in a very individually-tailored release plan. I. BAIL REVIEWS 1. Sections 520 (accused) and 521 (Crown) - to Queen s Bench if you don t like the Provincial Court result. The Queen s Bench hearing is neither de novo nor on the record, but rather a hybrid of both; 2. Section 523(2) - Application to a judge of the court which is trying or will try the accused to show cause why earlier order should be vacated and replaced. This was traditionally the only way to vary bail without a Queen s Bench appeal where circumstances changed, i.e., the client could not come up with promised bail money, etc.; 3. Section (new) - Terms of a recognizance may be varied with written consent of the Crown; 4. Section Review is automatic when trial has been delayed. Correctional officials are to monitor the clock and bring the accused to court after 90 days, and the judge then decides whether detention should continue. This guarantees that remanded prisoners are not forgotten, and also encourages the parties to expedite the trials of those on remand;

16 12 Saskatchewan: Bar Admission Program 5. Section A Surety who wishes to be relieved of the obligation may apply before a judge, who shall issue a written order for the committal of the accused to custody nearest to where he is bound to next appear. Note also s , which permits the judge to instead substitute sureties in the event a new one is willing. J. BAIL FOR MURDER CHARGES Section 522 lists those offences for which, having been charged, an accused may only apply to a judge of Queen s Bench for release. The most common among this list is murder. K. MISCELLANEOUS MATTERS 1. A bail hearing may not be adjourned beyond three clear days without the consent of the accused - see s. 516; 2. An accused may request a non-publication order from the judge at the bail hearing, which continues in effect until the case is completed through trial. This is desirable where you may wish to elect trial by judge and jury, since the jurors minds will thus not be poisoned by what they read of the bail hearing in the papers; 3. Under sections 497 and 498 of the Code, the powers of the police to release people they have arrested and charged have been greatly expanded. Read these sections carefully and get to know your local detention sergeant, because she could now release your client in many cases where previously she could not. A good working relationship between you and the police who operate the detention centre may save your client considerable expense - and win an earlier, uncontested release from remand! 4. Even when an accused person has lost his/her bail hearing and been remanded, the Crown may still seek, pursuant to s. 515(12) of the Code, an order requiring the accused to have no contact with named persons. This is to prevent an accused person from attempting to influence a witness over the telephone from the correctional centre. Revised June 2005

17 Saskatchewan: Bar Admission Program 13 III. MENTAL HEALTH ASPECTS OF CRIMINAL LAW AND PRACTICE People in conflict with the criminal law often have mental health dimensions to their problems. It is sad to say that some are before the criminal courts because of their inability or unwillingness of family and/or mental health resources to address their needs. A number of cases of public disturbance, food by fraud, criminal trespass, mischief by interference with the enjoyment of property, and even minor assault may engage the criminal justice system because no one else knows how to cope with the mentally challenged offender. Sometimes mental illness is apparent in the circumstances of the alleged offence itself; on other occasions it only comes to light when counsel begin to work with the client. When you believe your client may be presently mentally disordered, or was at the time of the offence is alleged to have been committed, your duty to that client includes raising either the issue of her fitness to stand trial or that of mental disorder in the commission of the offence, or both. Often only you know, from your interactions with the client, whether these issues are present. How, and to whom, the issues of fitness and mental disorder at the time the offence was committed are raised will sometimes depend upon the nature of the offence itself. If your client is charged with a food-by-fraud, where the likely result on conviction is a small fine or some hours of community service, it is hardly a good result if instead you succeed in having him declared mentally disordered and he is detained indefinitely! In that sort of a case, you can perhaps best discharge your duty to the client by raising the matter or her mental state in a less formal manner. That the criminal law is a blunt tool with which to respond to crime and to social ills is perhaps nowhere more apt than in its efforts to deal with the mentally ill. For example, there is no provision in criminal law to have an adult offender mentally assessed for the purpose of helping a court decide what sentence to impose; only if his or her fitness to stand trial or mental capacity to form the intent to commit the offence is in question may an assessment be ordered. I discuss below a possible alternative method of obtaining an assessment, using the provisions of the Saskatchewan Mental Health Services Act. Revised May 2003

18 14 Saskatchewan: Bar Admission Program Yet another challenge to the criminal justice system is the phenomenon of fetal alcohol spectrum disorder (FASD) and related illnesses. While society is generally becoming more aware of the disorder and the devastating effects it has upon sufferers, there is still great difficulty, especially outside Saskatoon and Regina, in obtaining a proper diagnosis for clients. Worse yet, there seems little agreement among professionals about appropriate treatment regimes, and even less resources to deliver treatment and to help maintain FASD clients in the community. These significant challenges render it difficult for the criminal justice system to respond well to FASD cases. A. CODE PROVISIONS CONCERNING FITNESS 1. Section permits a court to order an assessment of fitness at any stage of criminal proceedings, either on its own motion or the motion of defence or Crown counsel. Under s the standard is described as reasonable grounds to believe ; 2. The time limits are set out in s The initial period is no more than five days, excluding travel time, unless the parties agree, in which case the initial assessment may not take more than 30 days, again excluding travel time. This may be extended up to 60 days where compelling circumstances exist; 3. By s there is a presumption against custody during the assessment period, unless the court is satisfied on the evidence that custody is necessary to complete the assessment or that it is desirable in the opinion of a psychiatrist and the accused consents. This presumption also does not apply where the accused is in a reverse-onus bail situation pursuant to s. 515(6); 4. By s , where a suspectedly unfit accused would otherwise by entitled to a bail hearing, the assessment process takes priority and any bail decision is delayed until fitness has been determined; 5. An assessment order may not direct that any treatment be carried out, or that the accused submit to same;

19 Saskatchewan: Bar Admission Program If the assessment discloses that the accused is likely unfit to stand trial, the court may, on its own motion or on application, direct a trial of the issue, which, of course, must occur before there is a trial of the charge. B. MENTAL DISORDER AT TIME OF OFFENCE See, generally, s et seq. concerning the process to be followed upon a finding of not criminally responsible by reason of mental disorder. These provisions are triggered upon a finding, pursuant to s. 16 of the Code, that the accused was mentally disordered when the offence was committed. See the intriguing and convoluted process required under the section, whereby an initial finding of guilt must be made before continuing on to address the mental disorder dimension of the offence. C. PROVINCIAL MENTAL HEALTH SERVICES ACT PROVISIONS As may be seen, the Code provisions for dealing with the mentally disordered can be seen as very formal, containing a series of steps designed to ensure that the accused is protected from Kafkaesque procedures. This is entirely appropriate where the offence is serious and the consequences of conviction grave. It is also true, as mentioned above, that often the accused is before the criminal courts because no one else knows what to do with him or her. In those cases, it is unnecessary and undesirable to engage the full panoply of Code procedures. See my comments in the opening paragraphs of this piece. In that circumstance, several provisions of the Saskatchewan Mental Health Services Act may be applied to get the accused the help he needs. Often the assessment process available under the Act results in the petty criminal being diverted to mental health resources which can much more effectively deal with his challenges, and the criminal process being aborted.

20 16 Saskatchewan: Bar Admission Program See, in particular, s. 22(2) of the Act, which provides, inter alia, that a person charged with a crime and who is in custody may request an examination to determine whether he should be treated for a mental disorder. Section 22(3) also permits a judge on her own motion to arrange with a psychiatrist with admitting privileges to an in-patient facility to see the accused as an outpatient under police escort, and report the findings. Using the provisions of s. 22(6), a judge may use the results of the doctor s assessment to arrange treatment. Recently, several lawyers, judges and healthcare professionals have met to try and develop an holistic approach to mentally disordered people caught in the criminal law net in Saskatchewan, but it is early days for this initiative. Until coordinated responses evolve, one is left as a lawyer to lobby for one s client, on a case-by-case basis, to overburdened psychiatrists, psychologists, mental health nurses, etc.