Psychiatry: The Law

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1.0 Introduction

1.1 Legal Definition of Forensic Psychiatry

Forensic psychiatry is narrowly defined as a subspecialty concerned with the application of psychiatry to law, including criminal responsibility and fitness to stand trial [1]. More broadly defined, forensic psychiatry is an area of specialization that, with respect to criminal law, involves the assessment and treatment of those who suffer from a mental disorder and whose behaviour has or may lead to offending. At the behest of the courts, a forensic psychiatrist provides services to help facilitate the adjudicative process, including assessing criminal responsibility and/or determining an accused’s fitness to stand trial [2].

In accordance with s. 672.11 of the Criminal Code, a court may order a psychiatric assessment of an accused if it has reasonable grounds to believe that such evidence is necessary to determine (a) whether the accused is unfit to stand trial; (b) whether the accused was, at the time of commission of the alleged offence, suffering from a mental disorder so as to be exempt from criminal responsibility; (c) the appropriate disposition to be made where the accused has been found unfit to stand trial or not criminally responsible on account of mental disorder; or (d) whether an order should be made to stay proceedings where the accused has been found unfit to stand trial [3]. Pursuant to s. 672.12 of the Criminal Code, a court may make an assessment order at any time during the proceedings either of its own motion, on application of the accused, or on application of the prosecutor [4].  

1.2 Relevant Criminal Code Provisions  

Defence of mental disorder

16. (1) No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.

Presumption

(2) Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection (1), until the contrary is proved on the balance of probabilities.

Burden of proof

(3) The burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal responsibility is on the party that raises the issue. 

Definitions

2. In this Act,

“mental disorder”

« troubles mentaux »

“mental disorder” means a disease of the mind;

“unfit to stand trial”

« inaptitude à subir son procès »

“unfit to stand trial” means unable on account of mental disorder to conduct a defence at any stage of the proceedings before a verdict is rendered or to instruct counsel to do so, and, in particular, unable on account of mental disorder to

(a) understand the nature or object of the proceedings,

(b) understand the possible consequences of the proceedings, or

(c) communicate with counsel;

PART XX.1 MENTAL DISORDER

Interpretation

Definitions

672.1 (1) In this Part,

“accused”

« accusé »

“accused” includes a defendant in summary conviction proceedings and an accused in respect of whom a verdict of not criminally responsible on account of mental disorder has been rendered;

“assessment”

« évaluation »

“assessment” means an assessment by a medical practitioner or any other person who has been designated by the Attorney General as being qualified to conduct an assessment of the mental condition of the accused under an assessment order made under section 672.11 or 672.121, and any incidental observation or examination of the accused;

“disposition”

« décision »

“disposition” means an order made by a court or Review Board under section 672.54 or an order made by a court under section 672.58;

“dual status offender”

« contrevenant à double statut »

“dual status offender” means an offender who is subject to a sentence of imprisonment in respect of one offence and a custodial disposition under paragraph 672.54(c) in respect of another offence;

Assessment order

672.11 A court having jurisdiction over an accused in respect of an offence may order an assessment of the mental condition of the accused, if it has reasonable grounds to believe that such evidence is necessary to determine

(a) whether the accused is unfit to stand trial;

(b) whether the accused was, at the time of the commission of the alleged offence, suffering from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection 16(1);

(c) whether the balance of the mind of the accused was disturbed at the time of commission of the alleged offence, where the accused is a female person charged with an offence arising out of the death of her newly-born child;

(d) the appropriate disposition to be made, where a verdict of not criminally responsible on account of mental disorder or unfit to stand trial has been rendered in respect of the accused; or

(e) whether an order should be made under section 672.851 for a stay of proceedings, where a verdict of unfit to stand trial has been rendered against the accused.

1991, c. 43, s. 4; 1995, c. 22, s. 10; 2005, c. 22, s. 2.

Where court may order assessment

672.12 (1) The court may make an assessment order at any stage of proceedings against the accused of its own motion, on application of the accused or, subject to subsections (2) and (3), on application of the prosecutor.

Limitation on prosecutor’s application for assessment of fitness

(2) Where the prosecutor applies for an assessment in order to determine whether the accused is unfit to stand trial for an offence that is prosecuted by way of summary conviction, the court may only order the assessment if

(a) the accused raised the issue of fitness; or

(b) the prosecutor satisfies the court that there are reasonable grounds to doubt that the accused is fit to stand trial.

Limitation on prosecutor’s application for assessment

(3) Where the prosecutor applies for an assessment in order to determine whether the accused was suffering from a mental disorder at the time of the offence so as to be exempt from criminal responsibility, the court may only order the assessment if

(a) the accused puts his or her mental capacity for criminal intent into issue; or

(b) the prosecutor satisfies the court that there are reasonable grounds to doubt that the accused is criminally responsible for the alleged offence, on account of mental disorder.

1991, c. 43, s. 4.

Fitness to Stand Trial

Presumption of fitness

672.22 An accused is presumed fit to stand trial unless the court is satisfied on the balance of probabilities that the accused is unfit to stand trial.

1991, c. 43, s. 4.

Verdict of not criminally responsible on account of mental disorder

672.34 Where the jury, or the judge or provincial court judge where there is no jury, finds that an accused committed the act or made the omission that formed the basis of the offence charged, but was at the time suffering from mental disorder so as to be exempt from criminal responsibility by virtue of subsection 16(1), the jury or the judge shall render a verdict that the accused committed the act or made the omission but is not criminally responsible on account of mental disorder.

1991, c. 43, s. 4.

1.3 Evidentiary Basis for psychiatric opinions

As with any opinion evidence, experts are permitted to rely on hearsay in formulating their opinions. However, the more hearsay relied upon, which is not otherwise tendered before the court in an admissible format, the less weight an opinion should be given. In the context of psychiatric opinions, this issue sometimes becomes critical. Opinions provided by psychiatrists are often based in large part on comments and reporting by the accused. In such circumstances, absent evidence from the accused himself, the opinions are undermined and will be given little if any weight by the court: R v Abbey, [1982] 2 SCR 24; R v Innocent, [2008] OJ No 312 (SCJ) at paras 2 and 28-47.

2.0 Fitness to Stand Trial

2.1 Criminal Code

There is a presumption in criminal law that an accused is fit to stand trial unless a court is satisfied on a balance of probabilities that he or she is unfit to stand trial [5]. Pursuant to s. 672.23(1) of the Criminal Code, where a court has reasonable grounds, at any stage of the proceedings before a verdict is rendered, to believe that the accused is unfit to stand trial, it may direct, of its own motion or on application of the accused or the prosecutor, that the issue of the accused’s fitness be tried [6]. An accused or a prosecutor who makes an application to try fitness has the burden of proving that the accused is unfit to stand trial [7]. 

In accordance with s. 672.28 of the Criminal Code, if on the issue of fitness it is decided that an accused is fit to stand trial, the arraignment, preliminary inquiry, trial, or other stage of the proceedings shall continue as if the issue of fitness never arose [8].  Conversely, if it is held that an accused is unfit to stand trial, any plea that has been made shall be set aside and any jury shall be discharged [9]. A verdict of unfit to stand trial, however, does not prevent the accused from being tried where he or she later becomes fit to stand trial. The burden of proof that the accused has subsequently become to fit to stand trial is on the party who asserts it, and this burden must be discharged by proof on the balance of probabilities [10].

Where a verdict of unfit to stand trial is rendered in respect of an accused, s. 672.45 of the Criminal Code permits a court to hold a disposition hearing either of its own motion, or on application of the accused or the prosecutor [11]. At this stage, a court determines what to do with an accused while he or she awaits later proceedings. The court may direct that the accused (a) be hospitalized; (b) be released into the community subject to conditions; or (c) attend treatments at a specified hospital or clinic for a period not exceeding 60 days [12].

Following s. 672.33(1) of the Criminal Code, the court that has jurisdiction over an accused found unfit to stand trial must hold an inquiry no later than two years after the verdict, and every two years thereafter, to decide whether sufficient evidence can be adduced at that time to put the accused back on trial. These inquiries continue until (a) sufficient evidence is adduced to put the accused on trial; or (b) the accused is acquitted because the court is satisfied that sufficient evidence cannot be adduced to put him or her on trial. The burden of proof that sufficient evidence exists to put the accused on trial falls on the prosecutor [13].

2.2 Case Law

In Taylor [14], the Ontario Court of Appeal held that an accused’s fitness to stand trial requires only a limited cognitive capacity to understand the judicial process and to communicate with counsel. Under this test, a court’s assessment of an accused’s ability to conduct a defence and to communicate with counsel is limited to an inquiry into whether he or she can recount the necessary facts relating to the offence in such a way that counsel can properly present a defence. The Ontario Court of Appeal rejected the higher test of analytical capacity (the capacity to make rational and beneficial decisions), and so it is not relevant to the fitness determination to consider whether the accused and counsel have an amicable and trusting relationship, whether the accused has been cooperating with counsel, or whether the accused ultimately makes decisions that are in his or her bests interests [15].

In Whittle [16], the Supreme Court of Canada affirmed the use of the limited cognitive capacity test for fitness to stand trial, stating that the test strikes an effective balance between the objectives of the fitness rules and the constitutional right of the accused to choose his or her defence to have a trial within a reasonable time.  

3.0 Defence of Mental Disorder

3.1 Criminal Code

Pursuant to s. 16(1) of the Criminal Code, no person is criminally responsible for an act committed or omission made while suffering from a mental disorder that rendered him or her incapable of appreciating the nature and quality of the act or omission, or of knowing that it was wrong [17]. However, an accused is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility until the contrary is proven on a balance of probabilities. The burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal responsibility is on the party that raises the issue [18]. The Crown is only permitted to raise the issue, however, where it satisfies the court that the "defence" put forward gives rise to the issue of criminal responsibility or where the Crown has otherwise proven that the accused committed the offence: R v Swain, [1991] 1 SCR 933.

In accordance with s. 672.34, when it is found that an accused committed a criminal offence but was suffering from a mental disorder, the jury or judge shall render a verdict that the accused committed the offence but is not criminally responsible on account of mental disorder [19]. Where this verdict is rendered, the accused will not be found guilty or convicted of the offence, but (a) he or she may plead autrefois acquit – a preemptory plea of acquittal – in respect of any future charge relating to that offence; but (b) any court may take the verdict into account in considering an application for judicial interim release or in considering what dispositions to make or sentence to impose for any other offence [20].

Where a verdict of not criminally responsible on account of mental disorder is given in respect of an accused, a court may hold a disposition hearing either of its own motion, or on application of the accused or the prosecutor [21]. During a disposition, the presiding court must take into consideration the need to protect the public from dangerous individuals, the mental condition of the accused, the reintegration of the accused into society, and other needs of the accused before making a disposition that is the least onerous and least restrictive to the accused. Available dispositions include (a) ordering that the accused be discharged absolutely where it is the opinion of the court that he or she is not a significant threat to public safety; (b) ordering that the accused be discharged subject to conditions the court deems appropriate; and (c) ordering that the accused be detained in custody in a hospital, subject to conditions the court considers appropriate [22].

3.2 Case Law

The Criminal Code, s. 2 defines mental disorder as a disease of the mind [23]. In Cooper [24], the Supreme Court of Canada held that this phrase should be given a broad and liberal legal interpretation, and that it encompasses any illness, disorder, or abnormal condition which impairs the human mind and its functioning, excluding self-induced states caused by alcohol or drugs, as well as transitory mental states such as hysteria or concussion. In order to support a defence of not criminally responsible by reason of mental disorder, the disease must be of such intensity that it rendered the accused incapable of appreciating the nature and quality of the violent act, or of knowing that it was wrong [25].

Furthermore, the Supreme Court of Canada found that whether a particular mental disorder is actually a disease of the mind is a question of law. However, whether an accused was suffering from a disease of the mind and was therefore incapable of appreciating the nature and quality of the act, or of knowing that it was wrong is a question of fact. It must be shown that an accused was suffering from a disease of the mind at the precise moment of the act [26].

With respect to the phrase “appreciating the nature and quality of an act or omission,” the Supreme Court ruled that an accused must have had the capacity to apprehend the nature of the act and its consequences [27].  In other words, a court must assess whether the accused – at the time of the offence and by reason of mental disorder – was unable to fully appreciate the nature of the act as well as foresee the natural consequences that would flow from it. This goes beyond mere knowledge of the physical quality of the act itself, as an individual must also be able to perceive the consequences and results of the act. For instance, an accused may be aware of the physical character of choking someone without necessarily having the capacity to appreciate that the act will result in the death of a human being [28].

In Chaulk [29], the Supreme Court of Canada interpreted the word “wrong’ in s. 16(2) of the Criminal Code to mean “morally wrong” and not “legally wrong”. In considering the capacity of an accused to know whether an act is wrong, the defence of mental disorder should not be made unavailable just because he or she knows that a particular act is contrary to law. A person may be aware that it is ordinarily wrong to commit a crime but, by reason of mental disorder, is at the same time incapable of knowing that the act is morally wrong according to societal standards [30]. This would be the case, for example, where an individual suffered from a disease of the mind to such a degree as to know that it is legally wrong to kill, but kills in the belief that it is in response to a divine order and thus not morally wrong. In this situation, the defence of mental disorder may be appropriate.

4.0 Dangerous Offender Designation

4.1 Criminal Code    

Pursuant to s. 752.1 of the Criminal Code, if an offender is convicted of a serious personal injury offence as defined in section 752 or an offence listed in s. 753.1(2)(a), and there are reasonable grounds to believe that the offender may be a long-term or dangerous offender, the prosecutor may seek an assessment order [31]. A serious personal injury offence is defined as follows:

a. an indictable offence, other than high treason, treason, first degree murder,  or second degree murder involving:

  1. the use or attempted use of violence against another person; or
  2. conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person,

and for which the offender may be sentenced to imprisonment for ten years or more; or

b. an offence or attempt to commit an offence of sexual assault, sexual assault with a weapon, threats to a third party, causing bodily harm, or aggravated sexual assault [32]. 

On application by the prosecutor for such an order, if the court is of the opinion that there are reasonable grounds to believe that an offender who is convicted of an offence referred to above might be found to be a dangerous or long-term offender, then the court will remand the offender to the custody of a person designated by the court who can perform an assessment or have an assessment performed by experts for use as evidence supporting dangerous or long-term offender status. The period of assessment must be no longer than 60 days [33]. 

Following an assessment of the offender, and in accordance with s. 753(1), the court shall find the offender to be a dangerous offender if it is satisfied:

a.  that the offence for which the offender has been convicted is a serious personal injury offence, and the offender is a threat to the life, safety, or physical or mental well-being of other persons on the basis of evidence establishing:

  1. a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting psychological damage on other persons, through failure in the future to restrain his or her behaviour;
  2. a pattern of persistent aggressive behaviour by the offender, of which the offence forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour; or
  3. any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such a brutal nature as to compel the conclusion that the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint; or  

b.  that the offence for which the offender has been convicted is a serious personal injury offence and the offender, by his or her conduct in any sexual matter including that involved in the commission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain, or other evil to other persons through failure in the future to control his or her sexual impulses [34].  

If the court finds that an offender is a dangerous offender on the basis of evidence described above, it shall (a) impose a sentence of detention in a penitentiary for an indeterminate period; (b) impose a sentence for the offence for which the offender has been convicted – which must be a minimum punishment of 2 years imprisonment – and order that the offender be subject to long-term supervision for a period not exceeding 10 years; or (c) impose a sentence for the offence for which the offender has been convicted [35]. 

Pursuant to s. 753(1.1), an offender who gets a third conviction for a serious personal injury offence that should result in a sentence of at least 2 years is presumed to be a dangerous offender if the previous convictions resulted in a sentence of imprisonment for two years or more. In circumstances such as these, the offender is given an opportunity to rebut the presumption that he or she is a dangerous offender on a balance of probabilities [36]  

4.2 Case Law

In Lyons [37], the Supreme Court of Canada held that dangerous offender designations are constitutional, as the offender is being sentenced for committing a serious personal injury offence and not for potential future offences. In short, the individual is not being punished for what he or she might do, but for his or her actual commission of a specific offence. As a result, dangerous offender designations do not violate s. 7 of the Charter, nor do they deprive a person of his or her liberty in contravention of principles of fundamental justice [38].

The Supreme Court of Canada also held that Parliament’s classifying offenders and allowing courts to sentence dangerous offenders to an indeterminate period of imprisonment is not unconstitutional. Such a sentence serves both a punitive and preventative role, and its purpose – the protection of society – underlies the criminal law and sentencing procedures in general. The importance of prevention, deterrence, retribution, and rehabilitation varies according to the crime and the circumstances of the offender. Dangerous offender designations simply allow courts to tailor sentences to meet the reality that certain offenders are not inhibited by normal standards of behavioural restraints, so much so that future violent acts can confidently be expected of these persons [39]. 

Moreover, s. 753(1) of the Criminal Code requires evidence that an offender is likely to cause death or injury to other persons in future. The Supreme Court of Canada ruled that a “likelihood” of specified future conduct occurring is the finding of fact that must be established, and not that such events will definitely occur [40]. Psychiatric evidence of this likelihood is admissible. Courts do not assume that psychiatrists can accurately predict the future, but psychiatric evidence is clearly relevant to the issue of whether a person is likely to behave in a certain way. It is the quality and strength of psychiatric evidence together with the opinion of forensic psychiatric experts that lays the foundation for a court to find a likelihood that specified future conduct will occur [41]. 

5.0 Long-Term Offender Designation

5.1 Criminal Code

Pursuant to s. 753.1(1) of the Criminal Code, a court may find an offender to be a long-term offender if it is of the opinion that (a) it would be appropriate to impose a sentence of 2 or more years imprisonment for the offence for which the offender has been convicted; (b) there is a substantial risk that the offender will reoffend; and (c) there is a reasonable possibility of eventual control of that risk in the community [42]. 

A court shall be satisfied that there is a substantial risk that the offender will reoffend if:

a.  the offender has been convicted of the offence of sexual interference, invitation to sexual touching, sexual exploitation, making child pornography, distribution of child pornography, possession of child pornography, accessing child pornography, parent or guardian procuring sexual activity, householder permitting sexual activity, making sexually explicit material available to a child, luring a child, agreeing or arranging to commit a sexual offence against a child, exposure, living on the avails of prostitution of a person under 18, sexual assault, sexual assault with a weapon, or engaging in serious conduct of a sexual nature in the commission of another offence; and

b. the offender

  1. has shown a pattern of repetitive behaviour, of which the offence for which he or she was convicted forms a part, that shows a likelihood of causing death or injury to other persons or inflicting severe psychological damage on other persons; or
  2. by conduct in any sexual matter, including that involved in the commission of the offence for which the offender was convicted, has shown a likelihood of causing injury, pain, or other evil to other persons in the future through similar offences [43]. 

If a court is satisfied that there is a substantial risk that the offender will reoffend and subsequently finds him or her to be a long-term offender, it shall (a) impose a sentence for the offence for which the offender has been convicted, which must be a minimum punishment of 2 or more years imprisonment; and (b) order that the offender be subject to long-term supervision for a period not exceeding 10 years [44]. 

Furthermore, it is important to note that offenders convicted of and awaiting sentencing for a serious personal injury offence (see section on Dangerous Offender Designation above) may also be made the subject of a long-term offender application [45]. 

5.2 Case Law

In McLeod [46], the British Columbia Court of Appeal held that long-term offender status is not restricted to those who convict one or more of the sexual offences listed in s. 753.1(2)(a) of the Criminal Code. While the sexual offender may be a higher profile offender, the Court rejected the proposition that long-term offender designations were not intended to protect the public from other repeat offenders whose crimes lack a sexual component. There is nothing within the Criminal Code or elsewhere that suggests that Parliament intended for long-term offender designations to apply only to sexual offenders [47].  This finding was followed by the Ontario Superior Court of Justice in Nikolovski [48], which affirmed that while long-term offender provisions may target sexual offenders as a group, they do not exclusively apply to those who commit sexual offences.

 

1 Julio Arboleda-Florez, “Forensic Psychiatry: Contemporary Scope, Challenges, and Controversies” (2006) 5:2 World Psychiatry 87-91

2 Ibid

3 Criminal Code, RSC 1985, c C-46 s 672.11 [Criminal Code]

4 Ibid @s 672.12

5 Criminal Code, supra note 3 @s 672.22

6 Ibid @s 672.23(1)

7 Ibid @s 672.23(2)

8 Ibid @s 672.28

9 Ibid @s 672.31

10 Ibid @s 672.32(1)(2)

11 Ibid @s 672.45 

12 Ibid @s 672.58

13 Ibid @s 672.33(1)

14 R v Taylor, 1992 CanLII 7412 (ONCA)

15  Ibid.

16 R v Whittle, 1994 CanLII 55 (SCC)

17 Criminal Code, supra note 3@s 16(1)

18 Ibid @s 16(2)(3)

19 Ibid @s 672.34

20 Ibid @s 672.35

21 Ibid @s 672.45(1)

22 Ibid at s 672.54

23 Ibid at s 2

24 R v Cooper, 1980 CanLII 63 (SCC)

25 Ibid; R v Oommen, [1994] 2 SCR 507

26 Ibid

27 Ibid

28 Ibid

29 R v Chaulk, 1990 CanLII 34 (SCC)

30 Ibid

31 Criminal Code, supra note 3  @s 752.01

32 Ibid @s 752

33 Ibid @s 752.1(1)

34 Ibid @s 753(1)

35 Ibid @s 753(4)

36 Ibid @s 753(1.1)

37 R v Lyons, 1987 CanLII 25 (SCC)

38 Ibid

39 Ibid

40 Ibid

41 Ibid

42 Criminal Code, supra note 3 @s 753.1(1)

43 Ibid @s 753.1(2)

44 Ibid  @s 753.1(3)

45 supra note 8

46 R v McLeod, 1999 BCCA 347

47  Ibid

48 R v Nikolovski, 2000 CanLII 3328 (ONSC)