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Lecture

PSYCH257 Lecture Notes - Borden Ladner Gervais, Lists Of Landmark Court Decisions, Penetanguishene


Department
Psychology
Course Code
PSYCH257
Professor
Allison Kelly

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MENTAL HEALTH & THE LAW
Ewa Krajewska
Associate at Borden Ladner Gervais LLP
ekrajewska@blg.com
Introduction
Forensic Mental Health System
Governs Persons Found Not Criminally Responsible for a Crime
What is an “NCR” verdict?
o It is not a verdict of guilt.
o Acknowledgment that people who commit criminal acts under the
influence of mental illness should not be held criminally responsible for
their acts or omissions.
o But it is also not an acquittal.
o Person referred to as an “accused”.
Goal of Forensic System: Assessment and Treatment
Supreme Court of Canada’s Decision in
Winko
:
o Landmark decision on the constitutionality of Part XX.1 of the Criminal
Code.
o Is the regime constitutional or does it create a presumption that mentally
ill accused are inherently dangerous and puts an onus on them to show
that they are not dangerous.
o Public Safety will only be ensured by stabilizing the mental condition of
dangerous accused.
o Forensic system is to provide opportunities to receive treatment, not
impose punishment.
Mental Health Law
Civil system governed
by the Mental Health
Act
Forensic system
governed by Part XX.1
of the Criminal Code

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What happens after a person is found NCR?
Warrant of Committal to be detained at a Forensic Hospital
o Centre for Addiction and Mental Health in Toronto,
o St. Thomas near Hamilton,
o Ontario Shores in Whitby,
o Waypoint in Penetanguishene,
o Syl Apps for youth offenders,
o North Bay
o Lakehead in Thunder Bay
Hearing must be held within 45 days
Ontario Review Board
Specialized Administrative Tribunal
Composition of the ORB:
o Two legal members
o One psychiatrist and psychologist member
o Member of the public
Parties at the hearing:
o Crown
o Accused (Legal Aide,
amicus
)
o The Person in Charge (ie. The Hospital)
Expert Evidence
Treating Psychiatrist Testifies about the accused’s mental condition, treatment
of the accused, and about risk.
Cross-examined by the Crown
Cross-examined by the Accused
Board members may ask questions: inquisitorial system.
“Significant Threat to the Public”
The Board must be satisfied that the person poses a “significant threat to the
public” or the Board must grant the accused an absolute discharge.
o SCC in
Winko
: “If the Review Board fails to positively conclude, on the
evidence, that the NCR offender poses a significant threat to the safety of
the public, it must grant an absolute discharge. Any doubt on this score
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