1) ask: do you even have admissible evidence to prove intoxication?
Easier said than proven, accused may come weeks after offence no breath sample, etc
How reliable is his memory in the first place? Does he know what, or how much, he consumed? Street drugs can be laced
If the drug use was illegal, how will that go in court? Adverse character inferences
2) definition of disease of the mind
Bouchard-Lebrun – excludes psychosis resulting exclusively from drug use
Would a similar conclusion be found if you have a co-occurring drug use/mental disorder?
3) real issue in medical and psychiatric literature as to whether the Daviault mental state really exists a legal fiction?
A psychiatric state that does not exist?
Trial court decision out of Quebec: Dowe concluded it doesn’t exist
4) constitutionality of s.33.1 of CC?
2012 Capozzi pleads guilty to manslaughter (kills mother while drunk)
issues of prosecuting case without great evidence, and there is a risk that the law is unconstitutional (run the risk or take the plea?)
he also had a severe alcohol addiction, so the charter issue was more likely to come up as it was not necessarily “self-induced”
what about co-occurring drug abuse and mental disorder?
Not Criminally Responsible by Reason of Mental Disorder (NCRMD)
1. Fitness to Stand Trial
fundamental principle of our criminal law that the accused is entitled to be physically present during the course of their trial
if accused is not mentally fit to stand trial, crim proceedings are postponed until he/she is
mental presence: the system accommodates lack of cognitive presence as well
Note: fitness to stand trial is a procedural inquiry, not a defence or determination of guilt – only a postponement. Focus is on accused’s state of mind at the time of the proceedings, not at the time of the alleged offence.
not usually in best interests of accused…just delays trial further
“unfit to stand trial” (s.2) anyone who is unable to understand either the nature of the proceedings, the possible consequences, or communicate with counsel as a result of mental disorder.
1. Mental disorder s.2 definition: “disease of the mind”
given a broad interpretation by the courts, covers a large range of conditions, not limited to psychiatric disorders
easy to show they suffer from a disorder that is considered a disease of the mind
Simpson 1977 ONCA “disease of the mind” is a legal term and should be given a definition by the courts, NOT medical experts.
Expert medical evidence is not determinative whether the accused had a disease of the mind or not.
Should be left to the trier of fact (informed by medical evidence), not from the medical experts themselves
Judicial precedent does NOT apply here – each case decided anew.
Cooper 1980 SCC “any illness, disorder or abnormal conditions which impairs the human mind and its functioning”
EXCLUDING voluntary consumption of drugs/alcohol (go to intoxication for that) OR transitory states like hysteria/concussion (go to automatism) – these exclusions are based on policy
Must have a degree of permanence – Michelle finds this less persuasive. Why treat anyone differently if mental disorder is transitory vs permanent
Affirmed in Simpson that a personality disorder (like psychopathy) CAN be a disease of the mind
Bouchard-Lebrun SCC 2011
Affirmation of Cooper
A temporary psychotic state caused by voluntary consumption of drugs or alcohol does NOT constitute a disease of the mind – go to intoxication instead
2. By reason of that disorder, the accused cannot understand or communicate as set out in s.2
narrow view taken by the courts of: ability to understand proceedings, consequences
not a defence
at the time of the proceedings, a declaration of unfit to stand trial results in a postponement of the trial (raises issues of timeliness)
R v Whittle 1994 SCC (Test for fitness to stand trial)
accused arrested on warrants for unpaid fines. He is clearly unstable, wants to talk to police against counsel’s advice b/c he thinks it will stop the voices in his head. When he speaks, he implicates himself in a murder and robberies.
Issues: operating mind surrounding confessions under s.10(b) – he had schizophrenia
Held: the test for fitness to stand trial is different from the definition of mental disorder – the test is construed narrowly
Requires limited cognitive capacity to understand the process and communicate with counsel, which strikes a balance between the objectives of fitness rules and the constitutional rights of the accused
It is not necessary that the accused be rational, make rational decisions or possess analytical ability
Operating mind threshold (same as confession rule) – low threshold
Test:
1) ability to understand the nature of the proceedings
2) ability to understand the possible consequences
3) ability to communicate with counsel
Notes: troubling issues: many counsel express doubt about those who are declared fit. A person may choose to represent themselves, not uncommon to find paranoia among mental disorders (may fire counsel under delusion they are conspiring with the crown)
Should we allow people to make these mistakes, risking wrongful conviction?
Whittle test may not be fair to those who want to represent themselves
Procedural requirements for fitness to stand trial (part XX.1)
starting point is that we presume people are fit. This can be rebutted on a balance of probabilities by the party raising the issue, may be the defence or the crown or the judge.
S.672.22: presumed to b fit unless court is satisfied on a BoP
Where there are reasonable grounds to believe the accused is unfit at any stage of proceedings, the judge shall order the issue to be tried
S.672.23(1): if court has reasonable grounds at any stage, it can order the issue of fitness to be tried.
(2) an accused or prosecutor who makes an application under (1) has the burden of proof that the accused is unfit to stand trial
If fitness is found to be an issue, counsel shall be appointed
S.672.24
Where issue of fitness is raised, judge may postpone the hearing of that issue until after the crown’s case is in. If the accused is going to be acquitted anyway, there is no need for a fitness hearing
S.672.25
Where the fitness issue is to be decided, it will be trial by a judge at any stage of the proceedings before the trial. Once the trial starts, the trier of fact decides (judge or jury)
S.672.26
To aid the trier of fact, the court may order a psychiatric assessment
S.672.11-19
If fitness is found (declaration) the trial proceeds. But it may not be definitive, the issue can be raised again if there is a material change in circumstances.
S.673.28
If the accused is found unfit (part XX.1) go to disposition section
Court may order accused is detained in custody in a hospital
Accused may be discharged to the community subject to conditions (i.e. mental disorders that don’t warrant supervision in custody).
Court may order that the accused be subjected to mandatory treatment order 60 days in hospital or community where there are reasonable medical grounds to believe that treatment will render the caused fit. 672.56 – 62
Power of criminal court to compel accused to be treated
Right to refuse medical treatment is part of our law but criminal law trumps that rule in order to render accused fit to stand trial (administration of justice, practical efficientcy)
Note: we have a Charter right in Canada to decline interference with body, to decline medical treatment, and right to informed consent. This goes against ss. 672.56-62, which essentially extinguishes that right s.7 Issues of liberty
If a person is then convicted, they can decline treatment
Issues: serious side effects of some drugs
Disposition orders to retain in hospital or for discharge: made when an accused is found unfit. It must be automatically reviewed every six months. If in the hospital or in the community, it is twelve months s.672.81
If accused is found unfit and is still unfit after two years, the court must have an inquiry if there continues to be such evidence (substantial likelihood of re-offence). If the evidence degrades to the point where there is no longer a chance of conviction, the court will enter an acquittal. S.672.33
If it is open to the crown, if the finding of unfit is likely, then they can enter a stay of proceedings.
