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Mental Health Issues -A Provincial Offences Act Context Katalin Kirec, Assistant Crown Attorney Sheilagh Stewart, Crown Counsel.

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Presentation on theme: "Mental Health Issues -A Provincial Offences Act Context Katalin Kirec, Assistant Crown Attorney Sheilagh Stewart, Crown Counsel."— Presentation transcript:

1 Mental Health Issues -A Provincial Offences Act Context Katalin Kirec, Assistant Crown Attorney Sheilagh Stewart, Crown Counsel

2 Today’s Presentation Review Section 44 of the P.O.A., the applicable forms and related case law Review “unfit to stand trial” and the Taylor Test Review the criminal practice and compare the differences Provide some practical tips

3 An Overview A person who is mentally present at his or her trial is fit to stand trial. General Rule: Presumed that persons charged are fit to stand trial. But sometimes they may not be fit. To be fit to stand trial, accused must be able to understand and participate in what is happening at trial. If the person charged cannot understand and participate, it is as if they are not present at all. Very unfair to try that person in those circumstances because not able to fully answer and defend him/herself.

4 An Overview Whether accused is fit to stand trial has nothing to do with whether guilty/not guilty of any offence. Law presumes that the person charged is fit to stand trial. Test is not mental state at the time of the offence(s) charged. Fitness has to do with the here and now, not with some other time or some different place. See R. v. Krivicic 2011 ONCA 703

5 Section 44 – Provincial Offences Act Prescribes how the court is to proceed if there is reason to believe the defendant is unable to conduct a defence by reason of mental disorder. Mental disorder is defined in s.1(1) of the Mental Health Act: “mental disorder” means any disease or disability of the mind

6 Section 44 – Provincial Offences Act Section 44 is rarely used although in 2013 two reported cases Relying upon section 44 can have collateral consequences such as the need to report the driver to the Registrar of Motor Vehicles as potentially unfit to drive.

7 Section 44 -Provincial Offences Act (1) Where at any time before a defendant is sentenced a court has reason to believe, based on, (a) the evidence of a legally qualified medical practitioner or, with the consent of the parties, a written report of a legally qualified medical practitioner; or (b) the conduct of the defendant in the courtroom, that the defendant suffers from mental disorder, the court may, (c) where the justice presiding is a judge, by order suspend the proceeding and direct the trial of the issue as to whether the defendant is, because of mental disorder, unable to conduct his or her defence; or (d) where the justice presiding is a justice of the peace, refer the matter to a judge who may make an order referred to in clause (c).

8 Section 44 continued (2) For the purposes of subsection (1), the court may order the defendant to attend to be examined under subsection (5). (3) The trial of the issue shall be presided over by a judge and, (a) where the judge finds that the defendant is, because of mental disorder, unable to conduct his or her defence, the judge shall order that the proceeding remain suspended; (b) where the judge finds that the defendant is able to conduct his or her defence, the judge shall order that the suspended proceeding be continued. (4) At any time within one year after an order is made under subsection (3), either party may, upon seven days notice to the other, make a motion to a judge to rehear the trial of the issue and where upon the rehearing the judge finds that the defendant is able to conduct his or her defence, the judge may order that the suspended proceeding be continued.

9 Section 44 continued (5) For the purposes of subsection (1) or a hearing or rehearing under subsection (3) or (4), the court or judge may order the defendant to attend at such place or before such person and at or within such time as are specified in the order and submit to an examination for the purpose of determining whether the defendant is, because of mental disorder, unable to conduct his or her defence. (6) Where the defendant fails or refuses to comply with an order under subsection (5) without reasonable excuse or where the person conducting the examination satisfies a judge that it is necessary to do so, the judge may by warrant direct that the defendant be taken into such custody as is necessary for the purpose of the examination and in any event for not longer than seven days and, where it is necessary to detain the defendant in a place, the place shall be, where practicable, a psychiatric facility. (7) Where an order is made under subsection (3) and one year has elapsed and no further order is made under subsection (4), no further proceeding shall be taken in respect of the charge or any other charge arising out of the same circumstance.

10 What is needed? A legally qualified medical practitioner – in person or written report (if later, must be consent and provisions of Evidence Act regarding notice/ documentary evidence apply). OR Behaviour in court ( in which case judge may order examination by legally qualified medical practitioner) A judge ( yes justice of the peace has more authority under the Criminal Code than the POA in this regard). A trial of the issue of ability/ability to conduct a defence (irrespective of whether a determination has been made in criminal court)

11 What is Needed? If the defendant refuses or fails without reasonable excuse to submit to the examination, judge ( not justice of the peace) can issue warrant to detain defendant in custody for up to seven days in a psychiatric facility ( preferred) to have examination done This presents its own set of issues such as detention, capacity of facilities, competing priorities for facilities and so forth.

12 What is Needed?  All of this assumes that defendant has appeared before judge in criminal courthouse after having matter transferred from POA courthouse and justice of the peace. No authority to simply take defendant into custody for this purpose.  Also note that if judge orders assessment, local forensic hospital will need to be called for appointment to be booked

13 What does Judge determine? Judge decides whether proceedings on the charge will continue or remain suspended Judge makes decision on ability/ability to conduct a defence If no ability/ability to conduct a defence, proceedings on the charge remain suspended for up to one year although during year either party can apply to judge for a re-hearing on issue of ability/ability to conduct a defence ( made by motion) – judge can find now able and order trial on charge If no order for trial within the year, no further action may be taken If able/able to conduct defence, trial resumes – will Judge or justice of the peace preside over trial of charge? If later then has to transfer back to POA court facility.

14 Forms The forms used under section 44 are prescribed in S. 32 of Regulation 200 An order to attend for examination under section 44 of the Act shall be in Form 117. A warrant to take a defendant into custody under section 44 of the Act shall be in Form 118. A certificate of execution of a warrant issued under subsection 44 (6) of the Act shall be in Form 119.

15 FORM 117 ORDER TO ATTEND FOR EXAMINATION UNDER SECTION 44 OF THE PROVINCIAL OFFENCES ACT Courts of Justice Act

16 FORM 118 WARRANT TO TAKE CUSTODY OF DEFENDANT UNDER SECTION 44 OF THE PROVINCIAL OFFENCES ACT Courts of Justice Act

17 FORM 119 CERTIFICATE OF EXECUTION OF WARRANT Courts of Justice Act

18 Jurisprudence 3 cases: 1. R. v. P.R.L., 2013 ONCJ Real Estate Council of Ontario v. Chua, 2013 ONCJ R. v. Taylor, 59 O.A.C. 43

19 Real Estate Council of Ontario v. Chua Defendant charged under Real Estate and Business Brokers Act, 2002 Claimed unable to conduct defence – represented at trial by counsel but did not attend himself – medical evidence that he did not have ability to testify + unable to respond to simple questions + claimed to not know where he was or why Defence applied for stay under s. 44 at end of prosecution’s case Justice of the peace referred it to judge & court appointed psychiatrist wrote a report and testified that defendant was either feigning or exaggerating his symptoms Judge held defendant capable -Defendant's level of functioning at hearing inconsistent with other evidence - and ordered suspended proceedings resumed

20 Real Estate Council of Ontario v. Chua As in criminal matters, burden is on person raising the issue to establish unfit Test should be the same as in criminal proceedings given the identical interests at stake Test is the limited cognitive ability test – not a high threshold Defendant must understand the nature and object of the proceedings and the possible consequences Defendant must be able to communicate with counsel to prepare a defence Not necessary that defendant be capable of acting in his or her best interests ( per Taylor)

21 R. v. P.R.L. Defendant, diagnosed with bipolar mood disorder and living in community under supervision of a Community Treatment Order ( issued by doctor under s. 33 of Mental Health Act), was charged with multiple offences including speeding, fail to stop for police officer and fail to surrender permit. Only evidence regarding mental illness came from social worker who had worked with defendant for a month. She did file letter from a doctor indicating that offences may have resulted from poor judgement due to mental illness Letter also stated she had manic psychosis which interfered with her appreciation of reality

22 R. v. P.R.L. Prosecution questioned the use of the mental disorder defence as the only evidence of the defendant’s state of mind was based on a medical letter that could be obtained and used by an accused person inappropriately Also issue was not raised until second day of trial Conviction was entered on all charges but one ( unsafe lane change). No expert evidence regarding nature and severity of the bipolar mood disorder and whether she was actually suffering from the disorder on the day in question. Defendant failed to establish that her actions were involuntary actions as a result of her mental disorder.

23 R. v. P.R.L. Starting at para. 77 the decision is a thorough review of the issue Defendant required to establish an evidentiary basis for the defence -that defendant acted involuntarily on balance of probabilities Meet or satisfy the air of reality threshold ( met in this case) Community Treatment Order did not determine the issue on day of offences Officer did not take defendant into custody per Mental Health Act – she did not observe or believe defendant was in such a mental state as to require psychiatric assessment

24 R. v. P.R.L. Physician had not reported P.R.L. to the Registrar as required under s. 203 of H.T.A. – high risk medical conditions are conditions that are chronic, deteriorating, unstable or progressive such as psychiatric disorders…….. Physician legally obligated to have reported her as suffering from medical condition that could make it dangerous to drive if he/she thought this – no such report & no DL suspension No evidence that driving actions on date of offence were involuntary actions resulting from her mental disorder. Diminished mental capacity was not so severe as to prevent her from appreciating the consequences of her actions

25 R. v. P.R.L. With regard to fail to stop for police, held reasonable doubt regarding mens rea aspect – wilfully continued to avoid police – in regard to the penalty provision Criminal law - Evidence of mental disorder may fall short but may raise a reasonable doubt as to the mental element required for a particular offence Convicted of all offences that prosecution proved – one offence –fail to signal lane change – evidence fell short and defendant acquitted

26 R. v. Taylor – Ontario Court of Appeal Both psychiatrists testified that Taylor ( lawyer) would not be able to instruct counsel in a manner that would be in his best interests He fully understood the nature and object of the proceedings and its possible consequences At issue was the proper test to be applied in determining the accused’s ability to communicate with counsel Court of Appeal sets out test of fitness to stand trial ( paras. 40 – 55) Test is not whether or not accused able to act in his own best interests – not a proper test

27 R. v. Taylor – Ontario Court of Appeal One must remain cognizant of the rationale for the fitness rule – accused must have sufficient mental fitness to participate in proceedings in a meaningful way An accused who has been found fit must be permitted to conduct his own defence even if it means he acts to his own detriment in doing so. Limited cognitive ability test strikes balance between objectives of fitness rules and right of accused to choose his own defence and have a trial within a reasonable time. Higher threshold test of “analytical capacity” has been rejected by courts – fitness does not require that accused is capable of making rational decisions beneficial to him in his relationship with counsel.

28 R. v. Taylor – Ontario Court of Appeal Possibility of disruption of trial process by misbehaviour or outburst of accused; difficulty in maintaining a collaborative relationship with counsel; distrust of counsel; inability to understand and abide by court rulings – all raise concerns in the conduct of the trial BUT these concerns do not affect the application of the proper test to determine whether accused capable of communicating with counsel for purpose of conducting defence. Trial judge erred in adopting test requiring accused to be capable of making rational decisions beneficial to him As Crown raised fitness burden on Crown ( balance of probabilities)

29 R. v. Taylor – The Taylor Test S.2 “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

30 The Taylor Test – The Usual Questions Do you know where you are? Do you know what you are charged with? What is the role of defence csl/whose side are they on? What is the role of the crown/whose side are they on?

31 The Taylor Test – The Usual Questions What is the role of the judge/their job in court? What pleas are available? What can happen if a judge finds someone guilty? Not guilty? What is perjury/meaning of an oath? Consequences of lying to court?

32 R. v. Taylor – The Taylor Test There are no questions for (c); crown relies on csl to inform the court if they can’t get instructions. The questioning is usually conducted by csl, but crown &/or court can do it too. Note accused who have criminal records or were lawyers know the jargon, but 1 or 2 deeper probing questions will show their true understanding (eg ‘the judge judges” is a common answer, so ask what that means/what the judge judges).

33 Criminal Code Provisions S = presumption of fitness. S court may direct the issue be tried; onus is on party raising, on balance of probabilities. S (a) court can order a psychiatric assessment to help determine fitness. S & allow court to order accused to be treated in order to make them fit.

34 Toronto Practice Matter can be referred to 102 for a psychiatrist’s opinion (Dr arrives at 1 pm every day); if Dr says fit, matter continues on as if nothing had happened (presumption not displaced; no need to have a hearing); If Dr says unfit, can have a hearing in 102, followed by either a Treatment Order (where mental disorder is treatable)(60 day order, return date in 30 days for check- in) or a Warrant of Committal to CAMH/designate (ie, to the ORB)(no return date).

35 Criminal Code versus P.O.A. Unfitness findings are only by Judges in BOTH; however some key differences: Can TREAT unfitness ( Code) vs. Can’t (P.O.A.) Unfit accused remain in the hospital under the Ontario Review Board (subject to prima facie hearings and ORB hearings proscribed by law) (Code) vs. Case is suspended and no ORB (P.O.A.)

36 Recent Decisions of Note: R. v. Capano [2014] O.J. No (QL) (C.A.):The mental disorder must render an accused incapable of appreciating the nature and quality of the criminal act he committed or it must render the accused incapable of knowing that the act was wrong. R. v. Triano, [2014] O.J. No (QL) (C.J.) + [2014] O.J. No (QL) (C.J.): Accused suffering from dementia -Lack of memory in and of itself not sufficient to render accused unfit- Accused could not meaningfully participate in court process, could not meaningfully instruct counsel, receive advice or testify- Accused found unfit & stay of proceedings entered

37 Sentencing -R. v. Ellis 2013 ONCA 739 Appellant with bipolar disorder knew what he was doing was wrong Was otherwise functional at work When sentencing a mentally ill offender, jurist must consider the extent to which the mental illness contributed to the conduct in question – was there a causal connection between the mental illness and the commission of the offence and, if so, does it diminish the offender’s culpability. When an offender is mentally ill, principles of general deterrence and denunciation become less important and rehabilitation becomes more important

38 Practical Tips Keep in mind section 44 and the jurists role Keep in mind – whoever raises it has to prove it on a balance of probabilities Keep in mind – it is mental illness in context of fitness or ability to stand trial – not whether person is mentally ill – Taylor Test You can consent if necessary evidence or you can oppose Review the case law while waiting for hearing before judge- Remind paralegal of that case law and what statute says

39 Practical Tips Consider offences charged – will evidence go more to sentence (wilfully)? Consider context – generally driving offences Duty to report to Registrar? To LSUC? No specific court services procedures for s. 44 matters – best suggestion is to follow the procedures for transfers of appeals ( incl. retaining a certified copy of charging document)

40 Discussion/Questions


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