Table of Contents. CON-1 (Mental Disorder) (2013-3)

Transcription

1 Table of Contents 1 INTRODUCTION HISTORICAL PERSPECTIVE (a) Pre-1992 Amendments (b) The Reform Movement (c) The Swain Decision (d) The 1992 Amendments: Part XX.1 of the Criminal Code (i) The NCR Defence (ii) Fitness to Stand Trial (iii) Assessment Orders (iv) Protected Statements (v) Hospital Orders (Unproclaimed) (vi) Capping and Mentally Disordered Dangerous Accused (Unproclaimed) BEYOND THE 1992 AMENDMENTS (a) The Winko Decision (b) Report of the Standing Committee on Justice and Human Rights (c) Bill C (i) Review Board Powers (ii) Permanently Unfit Accused (iii) Repeal of Bill C-30s Unproclaimed Provisions: Capping, Dangerous Mentally Disordered Accused and Hospital Orders (iv) Victims (v) Police Powers (d) Issues for Future Consideration (e) Bill C-54: New Measures for High Risk NCR Offenders FITNESS AND NCR PROCEDURAL FLOW CHART ASSESSMENT ORDERS THE APPLICATION PROCESS (a) Timing of Order (b) Precedence over Bail Hearing (c) Legal Representation at Assessment Stage PURPOSES (a) Court-Ordered Assessments (i) To Determine Fitness and Criminal Responsibility (ii) For Purposes of Bail (iii) For Sentencing Purposes (iv) For Dangerous Offender and Long-Term Offender Applications (v) For Permanently Unfit Accused (b) Review Board Assessments CON-1 (Mental Disorder) (2013-3)

2 MENTAL DISORDER (i) Payment of Costs of Review Board Assessments (c) Treatment is Not Authorized GROUNDS (a) Evidence to Support Order (b) Establishing the Necessity of an Assessment THE ASSESSMENT ORDER (a) General Contents and Form (b) The Assessor (c) Custodial vs. Non-Custodial Assessments (i) Court-Ordered Assessments (ii) Review Board Assessments (iii) Remands to a Correctional Facility Pending an Assessment (d) Duration of Assessment (e) Variation of Order (f) Contravention of Order ASSESSMENT REPORTS STATEMENTS MADE DURING THE ASSESSMENT PROCESS (a) General Principles (b) The Scope of Statutory Protection (c) What is a Protected Statement? (d) The Admission of Protected Statements (i) To Challenge the Accused s Credibility (ii) Sentencing Proceedings (iii) Bail Proceedings (iv) Non-Criminal Proceedings (e) Limiting the Use of Protected Statements for Other Purposes (f) The Voluntariness of Protected Statements (g) The Weight of Protected Statements ACCUSED S REFUSAL TO SUBMIT TO A CROWN REQUESTED PSYCHIATRIC ASSESSMENT ASSESSMENTS OF YOUNG OFFENDERS (a) Applicability of Criminal Code Provisions (b) Timing of Order (c) Purposes (d) Presumption Against Custody (e) The Assessment Report (f) The Assessor (g) Statements Made During an Assessment FITNESS TO STAND TRIAL THE CONCEPT OF FITNESS THE TEST FOR FITNESS (a) Understanding the Proceedings and the Possible Consequences CON-2

3 TABLE OF CONTENTS (b) Communicate with Counsel (c) The Implications of the Taylor Decision (d) Fitness versus Capacity THE FIRST STAGE RAISING THE ISSUE OF FITNESS (a) Who Can Raise the Issue (b) The Assessment Process THE SECOND STAGE THE FITNESS HEARING (a) The Burden of Proof (b) A Lawyer Must Represent the Accused (c) Timing (d) Pre-Trial (e) During the Trial (i) Judge Alone (ii) Judge and Jury Trial (f) Nature of the Evidence (g) Removal of the Accused THE ACCUSED FOUND FIT THE ACCUSED FOUND UNFIT (a) Treatment Orders (b) Disposition Hearings (c) Change in Fitness Status (i) Return to a Fit State (ii) Prima Facie Hearings (d) The Permanently Unfit (i) The Constitutional Issue (ii) Parliament s Response (iii) The Application of the Scheme (A) Crown Discretion (e) Fitness Procedural Flow Chart YOUNG PERSONS EXTENDING THE FITNESS REGIME (a) The Sentencing Hearing (b) The Extradition Process (c) The Appeal Process THE NCR DEFENCE COMMON LAW ORIGIN THE CANADIAN APPROACH TO INSANITY THE NCR DEFENCE (a) Threshold Condition: Mental Disorder/Disease of the Mind (i) Legal Concept/Question of Law (ii) Definition (iii) Establishing that the Condition is a Disease of the Mind (A) The Medical Component (B) The Legal Component CON-3 (Mental Disorder) (2013-3)

4 MENTAL DISORDER (b) (I) The Internal Cause and Continuing Danger Theories (iv) Irresistible Impulse (v) Self-Induced Psychotic States Establishing the Effect of the Mental Disorder on the Accused s Capacities (i) Incapable of Appreciating the Nature and Quality of the Act or Omission (ii) Knowing the Act or Omission to be Wrong PROCEDURAL ISSUES (a) Raising the Issue of Criminal Responsibility: Who and When? (i) The Defence (A) Raising NCR after a Finding of Guilt (ii) The Crown (A) Raising NCR for the First Time on Appeal (iii) The Court (iv) Procedure for Consent NCR Findings (b) Jury Instructions (i) W. (D.) Instruction in NCR Cases (ii) Drawing of Adverse Inferences (iii) Instructing the Jury on the Consequences of an NCR Verdict (iv) Standard Jury Instructions (c) NCR Procedural Flow Chart EVIDENTIARY ISSUES (a) Burden of Proof (b) Does the Accused Have to Testify? (c) The Need for Expert Evidence (i) Expert s Reliance Upon Hearsay Evidence (ii) Expert Evidence Adduced by the Accused (iii) Must the Crown Call Rebuttal Expert Evidence? (d) Post-Offence Conduct THE EFFECT OF AN NCR VERDICT (a) Statutory Provisions (b) Consideration of an NCR Verdict in Subsequent Unrelated Proceedings (c) NCR Verdicts in Respect of Summary Conviction Offences (d) Mental Disorder Defences in Respect of Regulatory Offences (e) Other Orders Available as a Result of an NCR Verdict (i) DNA Data Bank Orders (ii) Sex Offender Registry AUTOMATISM INTRODUCTION AUTOMATISM DEFINED (a) Mental Disorder vs. Non-Mental Disorder Automatism CON-4

5 TABLE OF CONTENTS (b) Raising Automatism as a Defence (i) The Reverse Onus and Standard of Proof (ii) Step 1: Establishing a Proper Foundation (iii) Step 2: Determining Whether to Leave Mental Disorder or Non-Mental Disorder Automatism with the Trier of Fact (A) The Internal Cause Factor (B) The Continuing Danger Factor (C) Other Policy Factors (c) Jury Instructions (i) Model Jury Instructions MENTAL DISORDER IN A NON-NCR CONTEXT THE UNIFORM STANDARD FOR ASSESSING CLAIMS OF MENTAL INCOMPENTENCY (a) Voluntariness of Statements to Persons In Authority (i) The Right to Silence (ii) The Right to Counsel (b) The Right to Effective Representation (c) Setting Aside a Guilty Plea THE RELEVANCE OF MENTAL ILLNESS TO INTENT EXPERT PSYCHIATRIC OPINION EVIDENCE AS IT RELATES TO DISPOSITION (a) Disposition of the Perpetrator and Accused (i) Relevance (ii) Necessity in Assisting the Trier of Fact (b) Disposition of a Third Party (c) Reply Evidence INFANTICIDE (a) Infanticide as a Substantive Offence (i) The Elements of the Offence (ii) The Mens Rea Requirement (iii) Burden of Proof (iv) The disturbed mind requirement (b) Infanticide as a Defence or Included Offence (i) Burden of Proof (ii) Jury Instructions Where Infanticide Is Raised as a Defence THE RELEVANCE OF MENTAL ILLNESS TO SENTENCING (a) Objectives of Sentencing (i) Denunciation (ii) General Deterrence (iii) Specific Deterrence (iv) Separation from Public (v) Rehabilitation CON-5 (Mental Disorder) (2013-3)

6 MENTAL DISORDER (b) Court Ordered Treatment (i) The Conditional Sentence Regime (ii) Probation (iii) Long-term Supervision Orders (iv) Intensive Rehabilitative Custody and Supervision Orders (c) Psychiatric Assessments for Sentencing Purposes (i) Using an Earlier Assessment Prepared for a Different Purpose (ii) Relying on Provincial Legislation (iii) Using the General Sentencing Powers in the Code (iv) The Youth Criminal Justice Act (v) Admissibility of Opinion Evidence REVIEW BOARDS HISTORICAL OVERVIEW MANDATORY ESTABLISHMENT OF REVIEW BOARDS COMPOSITION OF BOARD (a) Chairperson (b) Quorum and Majority Vote STATUTORY POWERS OF REVIEW BOARDS (a) Power to Compel Accused s Appearance (b) Power to Appoint Counsel for Unrepresented Accused (c) Power to Adjourn Proceedings (d) Rule-Making Power (e) Power to Gather Evidence (f) Power to Order an Assessment (i) Power to Order the Payment of Costs of an Assessment (g) Power to Make Orders that Bind Persons Other Than the Accused (h) Power to Delay the Effective Date of a Disposition Order (i) Power to Prevent Breaches of Disposition Order if Offender is Living in the Community (j) Powers Following a Verdict of Unfit to Stand Trial TYPES OF HEARINGS (a) Alternative Hearing Procedures (b) Hearings Ordered by an Appellate Court JURISDICTION OF REVIEW BOARDS AND SECTION 24 OF THE CHARTER (a) The Conway Decision (b) Remedies Available (c) The Appropriate Forum: Superior Court or the Review Board DISPOSITION HEARINGS: VENUE, PROCEDURE AND EVIDENCE VENUE OF THE INITIAL HEARING: COURT VS. REVIEW BOARD CON-6

7 TABLE OF CONTENTS (a) Transmittal of Transcript and Other Material to Review Board (b) Status Quo Pending Review Board Hearing PROCEDURAL ISSUES (a) General Procedure (b) Parties to a Disposition Hearing (i) Presence of the Accused (ii) Right to Counsel (c) Notice of Hearing (d) Adjournments (e) Public Hearing (f) Publication Bans (g) Duty to Keep a Record (h) Accessing the Record and Disposition Information (i) Access by Parties (ii) Access by Third Parties (i) Charter Remedies (j) Procedural Irregularities and Non-Compliance with Statutory Time Limits (k) Reasons for Disposition EVIDENCE AT DISPOSITION HEARINGS (a) General Principles (b) Documentary Evidence (i) The Hospital Report (ii) Risk Appraisals (iii) The Clinical Record (iv) Evidence Relating to the Index Offence (v) Allegations of Criminal Behaviour (vi) Victim Impact Statements (A) Defining the Term Victim (B) Notification Requirements (C) Content (D) Filing (E) Presentation of Statement (c) Viva Voce Evidence (d) The Duty to Gather Further Evidence SECTION : NCR AND FITNESS DISPOSITIONS SECTION DISPOSITIONS (a) General Principles (b) Absolute Discharges (c) Hospital Detention Orders and Conditional Discharges (d) Effective Date of the Disposition (e) Risk of Indeterminate Detention THE KEY ISSUE: IS THE ACCUSED A SIGNIFICANT THREAT TO PUBLIC SAFETY? (a) The Winko Test CON-7 (Mental Disorder) (2013-3)

8 MENTAL DISORDER (b) Defining a Significant Threat to the Safety of the Public (c) Determining Whether the Accused is a Significant Threat (i) Relevant Factors (ii) Standard of Proof and Reliance Upon Future Behaviour DETERMINING THE LEAST ONEROUS AND LEAST RESTRICTIVE DISPOSITION (a) General Principles (b) The Statutory Factors (i) The Need to Protect the Public from Dangerous Persons (ii) The Mental Condition of the Accused (iii) The Reintegration of the Accused into Society and the Other Needs of the Accused (c) Terms of a Hospital Detention Order or Conditional Discharge (i) The Tulikorpi Decision (ii) Hospital Detention Order vs. Conditional Discharge (iii) Common Terms (iv) Terms That Bind Persons Other Than the Accused (v) Terms Relating to Medical Treatment (vi) Terms That Delegate Authority (vii) Interim Privileges Pending Transfer (viii) Anticipatory Conditions REVIEW OF DISPOSITIONS MANDATORY REVIEWS (a) The Initial Hearing by the Court or Review Board (b) The Annual Review Hearing (NCR and Unfit Accused) (c) The Extended Review Hearing (i) Extensions on Consent (ii) Extensions for Serious Personal Violence Offences (d) Hospital Request/Significant Increase in Liberty Restrictions Hearings (i) Hospital Request (ii) Significant Increase in Liberty Restrictions (e) Dual Status Offender Hearings DISCRETIONARY REVIEWS (a) Hearing at the Request of the Accused or Any Other Party (b) Arrest for Breach of Disposition Hearing PROCEDURE (a) Compelling the Attendance of the Accused (b) The Nature of the Review: Limited or de Novo ARRESTS AND WARRANTS OF COMMITTAL (a) Warrants of Committal (b) Arrests (i) Accused Subject to a Conditional Discharge (Section (b)) CON-8

9 TABLE OF CONTENTS (ii) Accused Subject to a Hospital Detention Order (Subsection (c)) (iii) Hearing Before a Justice (c) An Offence for Failing to Comply with a Disposition Order Dual Status Offenders (a) Defined (b) The Most Recent Committal Takes Precedence (c) Placement Decisions (i) Standing (ii) The Timing of the Placement Decision (iii) Notice (iv) The Test for the Placement Decision (v) Time Requirements for the Decision (vi) Review of the Placement Decision (vii) Concurrent Supervision by the Review Board and the Correctional Authorities APPEALS THE RIGHT OF APPEAL (a) Appeals from Unfit to Stand Trial and NCR Verdicts (i) By the Accused (A) Rights of Appeal (B) Powers of the Court of Appeal (ii) By the Crown (A) Rights of Appeal (B) Powers of the Court of Appeal (iii) No Right of Appeal from Verdict that Accused is Fit (iv) Filing the Notice of Appeal (b) Appeals from Dispositions and Placement Decisions (i) Rights of Appeal (ii) Who Can Appeal (iii) What Can be Appealed (iv) Powers of the Court of Appeal (v) Deemed Abandonment of Appeals (vi) Filing the Notice of Appeal (c) Appeals from a Stay of Proceedings for a Permanently Unfit Accused SUSPENSION OF DISPOSITIONS (a) Absolute Discharges and Treatment Orders (b) Conditional Discharges, Hospital Detention Orders and Placement Decisions (i) Jurisprudence on Granting a Suspension APPEALS TO THE SUPREME COURT OF CANADA (a) Appeals from Unfit to Stand Trial and NCR Verdicts (b) Appeals from Dispositions COMMON ISSUES ON APPEALS FROM CONVICTION, NCR AND UNFIT VERDICTS CON-9 (Mental Disorder) (2013-3)

10 MENTAL DISORDER (a) Where Fitness was Raised at Trial (b) Raising Fitness for the First Time on Appeal (c) Where NCR was Raised at Trial (d) Raising NCR for the First Time on Appeal (e) Ancillary Powers COMMON ISSUES ON APPEALS FROM DISPOSITIONS (a) Errors Raised on Appeal (i) The Interpretation of Legislation (ii) Failure to Consider All the Factors (iii) Failure to Seek Out All Relevant Evidence (iv) Supervision of Treatment (v) Unreasonable Disposition (vi) Unsupported by the Evidence (vii) Appeals as Micro-Managing (viii) Hybrid Dispositions (ix) Appeals from Orders Not Effected (b) Mootness (c) Fresh Evidence TRAVEL, INTERPROVINCIAL TRANSFERS, AND EXTRATERRITORIAL MATTERS TRAVEL INTERPROVINCIAL TRANSFERS (a) Board Recommendation (b) Consent of the Attorneys General (c) Transfer Documents (d) Other Transfer Agreements EXTRATERRITORIAL TRANSFERS (a) The Consent Requirements (b) Recommendation of the Review Board (c) Consent of the Attorney General or Relevant Provincial Authority (d) Transfer into Canada (e) Transfer Out of Canada (f) The Jurisprudence APPENDIX A Criminal Code... A-1 Criminal Code, Part XX.1... A-2.5 Criminal Code, Part XXI... A-32.1 Criminal Code, Part XXII... A-32.7 Form 48 Assessment Order of the Court... A-33 Form 48.1 Assessment Order of the Review Board... A-35 Form 49 Warrant of Committal Disposition of Detention... A-37 Form 50 Warrant of Committal Placement Decision... A-39 Additional Forms used in Ontario Courts Warrant of Committal (Keep Fit Order) (s )... A-41 CON-10

11 TABLE OF CONTENTS Disposition Hearing Outcome (s )... A-43 Notice of Disposition Hearing (s (5))... A-45 Treatment Order (s )... A-47 Inquiry into Recommendation for Stay of Proceedings (Permanent Unfit (s )... A-49 APPENDIX A1 Can. Reg Notice of Application for Treatment Regulations... A1-1 APPENDIX A2 Youth Criminal Justice Act... A2-1 APPENDIX A3 Inquiries Act... A3-1 APPENDIX B International Transfer of Offenders Act... B-1 APPENDIX C Canadian Designated Psychiatric Hospitals... C-1 APPENDIX D Canadian Review Boards... D-1 APPENDIX E Rules of Procedure Ontario Review Board... E-1 APPENDIX F Procedural Guidelines at Hearings British Columbia Review Board... F-1 APPENDIX G Commission D examen des Troubles Mentaux (CETM) Guide Tribunal Administratif du Que bec... G-1 INDEX... I-1 CON-11 (Mental Disorder) (2013-3)