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*d) With the passage of Bill C-14, discussed fully below, the court may also designate a person as a high-risk accused.
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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(s 672.58). However, the court cannot make a disposition order to have an accused detained in a health facility without the consent of the hospital or treating physician (s 672.62(1)). A recent Supreme Court of Canada case, R. v. Conception, 2014 SCC 60, confirmed the need for such consent, finding that consent is required in its entirety not simply to the treatment aspects. The exception to this is the rare case in which a delay in treatment would breach the accused’s rights under the Charter and an order for immediate treatment is an appropriate and just remedy for that breach. An inquiry by the court must be held not later than two years after the verdict of being deemed “unfit” 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, . While the term in section 672.54 “least onerous and must make a disposition that is the least onerous restrictive” order has been replaced by “necessary and restrictive to appropriate”, the intent of the accused pursuant to s 672.54legislation has not changed, as explained under Disposition Hearings after NCRMD. 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.
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 may 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. v Swain'' (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)).
*b) discharged subject to conditions considered appropriate by the court or review board; or
*c) detained in custody in a psychiatric hospital subject to conditions considered appropriate by the court or review board.
With the passage of 2014 Bill C-14, discussed fully below, the court may also designate a person as a high-risk accused, and then the Review Board would only be able to make a narrow custody order. Amendments from Bill C-14 have also made changes to other sections of the Mental Disorder provisions of the Criminal Code. Some of them are highlighted below. When the review board renders a decision under s 672.54, it must take into consideration “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 must choose the option least restrictive” to one that is “the “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 Winko v. the Director of the Forensic Psychiatric Hospital [1999] 2 S.C.R. 625 (“Winko”) still apply. Please see Ont. RB [2014] O.R.B.D No. 1876, par. 35; BCRB Decision/Reasons In the Matter of Vernon Roy Mazzei, July 15, 2014 (BCRB Website); Ranieri (Re) 2015 ONCA 444; Re Osawe 2015 ONCA 280; McAnuff (Re) 2016 ONCA 280, par 22. Therefore, the principle of making the least onerous and least restrictive order still applies to the accused”Review Board decisions.
The review board must review cases in which a person is found NCRMD at least once a year if the person is still detained in a mental facility or is fulfilling conditions pursuant to the disposition hearing (s 672.81). However, as a result of the operation of s 672.54, it is possible for individuals found NCRMD to be subject to prolonged or indeterminate detention or supervision by the review board, even for committing relatively minor offences.
In making this designation, the court must consider certain factors, outlined in 672.64(2). Some of the factors are the nature of the offence, the accused’s current mental state and expert opinion. Once a person is found to be a high-risk accused, they are subject to mandatory hospital detention and increased time between Review Board hearings. In order for the high-risk accused designation to be removed, the review board must first refer the finding to a superior court. The court may only revoke the designation if satisfied that there is not a substantial likelihood that the accused will use violence that could endanger the life or safety of another person.
The Bill also aims to improve victim’s rights, by providing notice to victims of the intended place of residence of any NCRMD accused who receives an absolute or conditional discharge. The victim is informed of the general location where the offender resides, but not the specific address. Furthermore, when the high-risk status of an accused is being reviewed by the court, victims have the opportunity to may file impact statements which then must be considered by the court.
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 In April 2015, the BC Review Board is considering whether supervised outings would granted Schoenborn escorted community access, at the discretion of the Director of the facility, in order to aid in his rehabilitation. However, there There is currently a strong likelihood that hearing underway in the prosecution will make an application BC Supreme Court for Schoenborn’s designation as a high-risk accused. There is also currently a ''Charter'' challenge due to the retroactive 'high risk' “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).