Difference between revisions of "Mental Health and the Criminal Code (14:IX)"

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, and must make a disposition that is the least onerous and restrictive to the accused pursuant to s 672.54. 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 Demersv 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. Now, a review board may make a recommendation to the court to enter a stay of proceedings if it has held a hearing and is of the opinion that the accused  remains chronically unfit and does not pose a significant threat to public safety. Notice of intent to make such a recommendation must be given to all parties with a substantial interest in the proceedings (s 672.851). 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 detain  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