Law 3101A/B Study Guide - Midterm Guide: Mental Disorder, Dangerous Offender, Assault Occasioning Actual Bodily Harm
Course CodeLaw 3101A/B
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Ch 5: Mental Health, Criminal Justice and Civil Commitment
Criminal Justice and Mental Health
oCourt-Ordered Psychiatric Assessments and Unfitness to Stand Trial.
oNot Criminally Responsible by Reason of Mental Disorder.
oMental Health and Sentencing.
oDangerous and Long-Term Offenders.
The Mental Health Act
oCategories of Psychiatric Patients.
oApprehension and Detention for Psychiatric Assessment.
oCertificates of Involuntary Admission and Renewal.
oCommunity Treatment Orders.
oLimits on Treatment and Restraint.
oCollection, Use, and Disclosure of Personal Health Information.
Part 1: Criminal Justice and Mental Health
(a) Court-Ordered Psychiatric Assessments and Unfitness to Stand Trial
oAn accused may be detained and subjected to a comprehensive psychiatric assessment
if there is reason to believe that they are unfit to stand trial or was mentally ill at the time
of the offence.
oAll accused are presumed to be fit, unless the defence or prosecutor proves otherwise
on a balance of probabilities.
oAn accused will be found unfit if they are unable, because of a mental disorder, to
understand the nature or possible consequences of the proceedings, or to communicate
oIf an accused is found unfit, they may be detained and treated without their consent for
up to 60 days.
oIf, after treatment, the accused remains unfit the trial will be stayed. If the accused
becomes fit, the criminal proceedings will continue as if fitness was never an issue.
(b) Not Criminally Responsible by Reason of Mental Disorder (NCRMD)
oIndividuals cannot be held criminally responsible if they were suffering from a mental
disorder that rendered them “incapable of appreciating the nature and quality of the act
… or of knowing that it was wrong.”
oThe SCC held that the defence may apply when the accused knows the conduct is
legally wrong, but does not know that it is morally wrong.
R. v. Chaulk.
oEveryone is presumed not to be suffering from a mental disorder of this nature.
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oThe onus is on the party raising the issue.
oIf the accused is NCR, the court may make one of three dispositions: absolute
discharge; conditional discharge; or detention in a hospital.
oRequired by law to impose the least onerous & restrictive order consistent w protecting
the public from dangerous ppl, as well as the offender’s reintegration in society. If judge
fails to make an order, the criminal review board will make the order.
oNCR accused cannot be treated against their will, even if treatment is in their best
oCriminal Review Boards (in each province) maintain authority over NCR and unfit
individuals until they have been absolutely discharged.
oThe federal government recently amended the NCR provisions requiring courts to
consider public safety as the paramount concern.
oThe amendment creates a “high-risk” designation for accused found NCR for a “serious
personal injury offences.”
o“High-risk” accused are not eligible for absolute or conditional discharges. Rather they
must be detained in hospital until a court removes the designation.
(c) Mental Health and Sentencing
oGeneral sentencing factors include: psychiatric, psychological or other problems;
willingness to address these issues; and ongoing risk.
oAggravating factors that the court must take into account include: a history of violence;
refusal to take responsibility; and failure to seek or accept assistance for an underlying
psychiatric, psychological or other problem. (NB: Aggravating factors – judge required to
give harsher sentence than he otherwise would’ve )
oMitigating factors that the court must take into account include: having a physical or
mental disability; acceptance of responsibility; and commitment to address psychiatric,
psychological or other problem. (Mit fac- judeg must reduce sentence that would’ve
otherwise been given.)
oParticipation in treatment may be made a condition of probation, parole or a conditional
discharge. The accused may refuse consent to the treatment, but will likely not be
granted probation, parole or a conditional discharge.
(d) Dangerous and Long-Term Offenders
oconvicted of sexual, violent or other similarly serious offence whose persistent
aggressive conduct or brutal behaviour indicates that they pose an ongoing
threat to the life and safety of others.
osubject to indeterminate imprisonment and restricted parole eligibility.
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