2. Psychology and the Law Civil and Criminal Commitment

3. Plan for Today Criminal Commitment Civil Commitment

4. Criminal Commitment Bobby’s story Down’s Syndrome - IQ below 50 (severely retarded) 25 years old, 6’4’’, 300 pounds Has recently become sexually mature Acting out his sexual urges violently against women Recently charged with sexual assault

5. Fitness to Stand trial “An accused individual must be protected from a conviction that could have resulted from a lack of participation or capacity to make proper judgment” R. v. Pritchard 1)Accused must be able to assist in his or her defence 2)Does the accused understand his or her role in the proceedings 3)Does the accused understand the nature or object of the proceedings

6. Fitness to Stand Trial section 2 of the Criminal Code 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

7. Fitness to Stand Trial An accused is presumed fit to stand trial unless the court is satisfied on a balance of probabilities that he or she us unfit (s.672.22) The party raising the issue has the burden of proving the issue of unfitness (s. 672.23) R. v. Taylor – “limited cognitive capacity” The accused need only have the ability to recount to his or her lawyer the facts relating to the offence that would enable the lawyer to properly present the case. The accused need not have the ability to act in his or her own best interest.

8. Fitness to Stand Trial -if unfit to stand trial, there are 3 options 1)Conditional discharge 2)A detention order - bail is denied and you are committed to a hospital for the criminally insane until found competent 3)A treatment order – treated until fit to stand trial -If determined you will never be competent, you must be released or civil commitment proceedings are initiated

9. Fitness Interview Test 1)Nature and object of the proceedings: the arrest process, the nature and severity of the charges, the role of key players, pleas available, consequences of pleas, court procedure 2)Understanding of the consequences: range and nature of penalties, available legal defences and the likely outcome 3)Ability to communicate with lawyer: capacity to communicate facts, relate to lawyer, engage in defence, challenge witnesses, testify, and manage courtroom behaviour

10. Profile of Unfitness Single, unemployed men, living alone History of psychiatric problems and previous psychiatric hospitalizations Mostly charged with property offences and other non-violent offences Demographic, criminological, mental disorder Most people found unfit will spend more time in prison than if they were found guilty and served the maximum sentence

11. Canadian Criminal Commitment M’Naghten rules – common law (English) “A person is presumed sane unless it can be clearly proven that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or if he did know it, that he did not know he was doing what was wrong.”

12. R. v. Swain Supreme Court of Canada gave 6 months to reform the law = Bill C-30 s. 16 Criminal Code of Canada “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.”

13. Criminal Commitment 2. Acquitted at trial by reason of insanity -Not responsible if conduct is attributable to mental illness that interferes with rationality. -Burden is on the party raising the issue of insanity -Must be insane at the time the crime was committed (retrospective) -Not Criminally Responsible by reason of Mental Disorder (NCRMD) -Absolute discharge “not a significant threat”, conditional discharge, detention in hospital

14. Profile of NCRMD Marginalized member of society, white, single male, late 20s early 30s Unemployed, lacks a grade 12 education History of hospitalization and arrest Typically psychotic Typically non-violent offences

15. Civil Commitment Parens Patriae: power of the state Personal liberty vs. governmental obligation to protect its’ citizens The Canadian Charter of Rights and Freedoms Protection of citizens from the state vs. the protection of citizens from themselves or others

16. Civil Commitment Danger to Self or Others -Hard to accurately predict dangerousness -Best predictor of dangerousness? -Past behavior. -Canadian Federal Mental Health Act -Ontario Health Care Consent Act -Substitute Decisions Act

17. Application for Psychiatric Assessment (Form 1) In Ontario, is a physician examines a person and has reasonable cause to believe that the person: a)Has threatened or attempted to cause bodily harm to him or herself b)Has behaved violently towards another person or has caused another person to fear bodily harm from him or her; or c)Has shown a lack of competence to care for him or herself; or

18. Application for Psychiatric Assessment -if the person is suffering from a mental disorder of a nature or quality that likely will result in, d) Serious bodily harm to the person e) Serious bodily harm to another person; or f) Imminent and serious physical impairment of the person

19. Form 1, 2, 3 and 4 The physician who signs the application must have personally examined the person and must be signed within 7 days Can be detained against your will for 72 hours After 72 hours you must be released or admitted as a voluntary patient or involuntary patient Involuntary admission requires another physician to complete a certificate of involuntary admission (Form 2) Form 3 allows the involuntary detention and treatment for a period of 14 days First renewal (1 month) second (2 months) third and subsequent renewals (every 3 months)

20. Civil Commitment Least restrictive alternative - deinstitutionalization, group homes Right to refuse treatment -side effects -refusing to get help

21. Limits to Confidentiality Duty to Warn Tarasoff v. the Regents of California Mandatory Reporting -child abuse (physical, sexual, neglect) -Sexual abuse (Bill 100)