LAW ISU
Published on Nov 19, 2015
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PRESENTATION OUTLINE
FACTS
- SEXUAL ASSAULT
- UST
- SECTION 672.58
Brian Conception was accused of sexual assault. During the trial the issue of his mental health affecting his ability to stand trial was raised. He was found to be under a psychotic state, which made him unfit to stand trial (UST). The Ontario court of justice judge, Justice Mary Hogan used section 672.58 of the criminal code. This section of the Code gives the authority for a judge to send an accused person, after they appear in court and it is determined they are unfit to stand trial, to a hospital for treatment so that they can become fit and continue with the court process.
TREATMENT DISPOSITION
672.58 Where a verdict of unfit to stand trial is rendered and the court has not made a disposition under section 672.54 in respect of an accused, the court may, on application by the prosecutor, by order, direct that treatment of the accused be carried out for a specified period not exceeding sixty days, subject to such conditions as the court considers appropriate and, where the accused is not detained in custody, direct that the accused submit to that treatment by the person or at the hospital specified.
reatment disposition
672.58 Where a verdict of unfit to stand trial is rendered and the court has not made a disposition under section 672.54 in respect of an accused, the court may, on application by the prosecutor, by order, direct that treatment of the accused be carried out for a specified period not exceeding sixty days, subject to such conditions as the court considers appropriate and, where the accused is not detained in custody, direct that the accused submit to that treatment by the person or at the hospital specified.
672.58 Where a verdict of unfit to stand trial is rendered and the court has not made a disposition under section 672.54 in respect of an accused, the court may, on application by the prosecutor, by order, direct that treatment of the accused be carried out for a specified period not exceeding sixty days, subject to such conditions as the court considers appropriate and, where the accused is not detained in custody, direct that the accused submit to that treatment by the person or at the hospital specified.
FACTS
- NO BEDS =JAIL TIME
- "FORTHWITH" ORDER
- OVERTURN A LOWER COURT ORDER
- AVERAGE WAIT TIME IS 3-6 WEEKS
- S. 672.62
When there are no beds immediately available at the hospital, the accused person must be sent to jail to be housed while waiting for one. To avoid the accused person being sent to the jail to wait, some judges in the Ontario Court of Justice, as in this case, began to issue "forthwith" and "no stopover in jail" orders. This forced the hospital to take them in immediately, bypassed the need of the consent of the hospitals, and avoided them being sent to jail. Two psychiatric hospitals sought to overturn a lower order that Brian Conception be sent directly to their facilities instead of waiting six days when a bed would be available. This would be on the lower end of wait times; in most cases the wait time is several weeks.This challenged the constitutionality of s. 672.62
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Consent of hospital required for treatment
672.62 (1) No court shall make a disposition under section 672.58 without the consent of
(a) the person in charge of the hospital where the accused is to be treated; or
(b) the person to whom responsibility for the treatment of the accused is assigned by the court.
Consent of accused not required for treatment
(2) The court may direct that treatment of an accused be carried out pursuant to a disposition made under section 672.58 without the consent of the accused or a person who, according to the laws of the province where the disposition is made, is authorized to consent for the accused.
Consent of hospital required for treatment
672.62 (1) No court shall make a disposition under section 672.58 without the consent of
(a) the person in charge of the hospital where the accused is to be treated; or
(b) the person to whom responsibility for the treatment of the accused is assigned by the court.
Consent of accused not required for treatment
(2) The court may direct that treatment of an accused be carried out pursuant to a disposition made under section 672.58 without the consent of the accused or a person who, according to the laws of the province where the disposition is made, is authorized to consent for the accused.
672.62 (1) No court shall make a disposition under section 672.58 without the consent of
(a) the person in charge of the hospital where the accused is to be treated; or
(b) the person to whom responsibility for the treatment of the accused is assigned by the court.
Consent of accused not required for treatment
(2) The court may direct that treatment of an accused be carried out pursuant to a disposition made under section 672.58 without the consent of the accused or a person who, according to the laws of the province where the disposition is made, is authorized to consent for the accused.
FACTS: CofA
- HEARING JUDGE WAS WRONG
- BOTH CC SECTIONS ENGAGE S. 7 BUT DO NOT VIOLATE
- THE PRINCIPLES OF FUNDEMENTAL JUSTICE
The court of appeal held that the hearing judge was wrong in determining that s. 672.62 was satisfied. The court of appeal also determined that both s. 672.58 and s. 672.62 involve s. 7 of the charter of rights and freedoms rights to liberty, and security of the person, but do not violate the principles of fundamental justice.
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DECISION-9
DECISION
- THE APPEAL WAS DISMISSED
- THE HEARING JUDGE LOST
- TWO HOSPITALS WON
KEY LEGAL ISSUES-CRIMINAL LAW
- Immediate treatment without consent
- Does consent relate to timing?
The key legal issues relating to criminal law are: whether a court can make a disposition order directing treatment of the accused begin immediately without regards to the consent of the hospital or treating physician, and whether or not the consent requirement relates to the timing of carrying out the order or just to the treatment itself.
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KEY LEGAL ISSUES-CONSTITUTIONAL LAW
- Does hospital consent infringe on the accused's right?
- If the CC sections are unconstitutionally vague or arbitrary
The key legal issues regarding constitutional law are: whether requiring the hospital’s consent to all aspects of the disposition order would infringe on the accused rights to procedural fairness, and whether treatment disposition provisions of the Criminal Code are unconstitutionally vague or arbitrary.
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MAJORITY JUDGES
- CONSENT DOES NOT MEAN PROCEDURAL UNFAIRNESS
- AND ITS NOT VAGUE OR ARBITRARY
- CONSENT =TIMING
- TIMING =SAFETY AND EFFICIENCY
- SAFETY AND EFFICIENCY=FAIRNESS
. The majority judges reason for deciding the case the way they did is, the consent requirement does not deprive the accused of procedural fairness and is not unconstitutionally vague or arbitrary. Under s. 672.62 consent must include timing. They explained that if hospitals provided involuntary treatment to potentially dangerous individuals, their ability to provide treatment safely and effectively will diminish. The safety of both the accused and the staff are put in danger if the proper procedures are not taken to ensure the safety of the accused and the staff. Also the ability of a hospital to administer the suitable treatment is inexplicitly linked to the facilities and personnel available to administer the treatment. Therefore the timing of a “forthwith” treatment order is directly linked to consent. And since timing of a treatment has to be appropriate for it to be safe and efficient, consent needs to be taken before a judge issues a treatment order.
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DISSENTING JUDGES
- HOSPITAL CONSENT DOES NOT APPLY TO ALL OF THE TREATMENT ORDER
- CONSENT IS WILLINGNESS TO DELIVER A PARTICULAR TREATMENT
- VETO POWER OVER THE JUDICIAL SYSTEM
- HOSPITALS SHOULD DO THEIR JOB
- BED SHORTAGES ARE THE HOSPITALS FAULT AND A PART OF A JUDGES DECISION
H. The dissenting judges reasons for deciding the case the way they did is, a hospitals consent is not required to all the terms and conditions of the treatment order. They stated that the requirement for hospital consent relates only to a hospital’s willingness to deliver a particular treatment. Requiring hospital consent to all terms of a treatment order is like giving them a veto power over whether or not a deposition order should be issued, without any regard to the accused’s legal interest. Basically a hospital should be prepared for any situation at any time. They are there to serve a purpose and should not get to decide when a treatment is to take place. Giving a hospital that responsibility will be giving the accused rights and freedoms over to the hospital, thus giving them supremacy over the judge. Therefore bed shortages are not a basis of consent for a hospital to refuse a patient treatment. They are apart of the circumstances in which the judge basis their decision on.
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LEGAL SIGNIFICANCE-CONTROVERSY
SHOWS THE CANADIAN GENERAL PUBLIC THE SCC BEHAVIOUR TOWARDS THE MENTALLY ILL
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LEGAL SIGNIFICANCE-WHY IT REACHED THE SCC
- ISSUES THAT ARE RELEVANT
- TREATMENT OF THE MENTALLY ILL
- THE CC SECTIONS ABOUT CONSENT
- CHARTER SECTION 7 RIGHTS
- TIMING IS RELATED TO CONSENT
This case reached the Supreme Court of Canada because; it deals with issues that are relevant and could apply to all of Canada. It deals with the treatment of the mentally ill in jail, the legality of s. 672.58 and s. 672.62 of the criminal code which deals with the consent of the disposition orders, an accused section 7 charter right to the security of the person, and whether timing is related to consent.
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LEGAL SIGNIFICANCE
- S. 672.62 GIVES LEGAL SUPREMACY TO THE HOSPITAL
- VETO POWER ON WHO GOES TO JAIL
- INFRINGES ON CHARTER 7 RIGHTS
The legal significance of this case is s. 672.62 of the criminal code gives legal supremacy to hospital staff and physicians, in deciding who goes into jail or who goes to be treated. Essentially giving them a veto card against the courts. This section does not only put a damper on a person’s mood but is actually infringing on an accused section 7 charter rights to security of the person. Because by sending a mentally ill person into a place where they cannot be treated with care they need, they clearly are not being given the right to security of the person.
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MY OPINION
- I DON'T AGREE WITH THE SCC
- THE SAFETY OF MENTALLY ILL PEOPLE ARE IMPORTANT
- I BELIEVE IN PEOPLE FOLLOWING RULES AND DOING THEIR JOB.
- BED SHORTAGES SHOULD BE REPORTED AND UPDATED AND GIVEN TO JUDGES BEFORE HAND
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YOUR OPINIONS
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