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Wed, Dec

DISCRIMINATION, MENTAL ILLNESS AND THE RIGHT TO A TRIAL, CANADIAN HUMAN RIGHTS VIOLATION - (news flash)

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"When non-criminal responsibility before trial is used and successful you are found guilty without a trial but not criminally responsible due to mental illness, which means that any charter violations such as entering a home without a warrant and seizing private computers without a warrant is now automatically dismissed, and any copies of the "unlawful" seizure are now legal too. Why does such a law that circumvents the right to trial, an international human rights violation, still exist in the Canadian Criminal Code in 2012? ..

My experience is that non-criminal responsibility before trial, false allegations, and charter violations are combined with powerful radar assaults during long and delayed criminal proceedings, and during any attempts to address this Charter violation and Constitutional violation in civil lawsuits after being acquitted, which would explain why in Canada a law that circumvents a citizens right to a trial, a basic human right, still exists in 2012."

DISCRIMINATION, MENTAL ILLNESS AND THE RIGHT TO A TRIAL
http://ireport.cnn.com/docs/DOC-892846

DISCRIMINATION, MENTAL ILLNESS AND THE RIGHT TO A TRIAL

Non-Criminal Responsibility Before trial (discriminatory)

R. v. Swain, [1991] 1 SCR 933, Supreme Court of Canada
http://www.canlii.org/en/ca/scc/doc/1991/1991canlii104/1991canlii104.html
"I believe, moreover, that conferring on the prosecution a conditional right to raise the issue of insanity during the course of the trial infringes upon the equality rights of the mentally disabled under s. 15 of the Charter. It denies the mentally disabled, a group in our society which has been negatively stereotyped and historically disadvantaged, the control over their defences reposed in other accused persons and does so in a way which is discriminatory. In denying the mentally disabled personal autonomy in decision‑making it reinforces the stereotype that they are incapable of rational thought and the ability to look after their own interests. In a word, it denies them equality with other accused persons under the guise, putting it at its best, of a benign paternalism. -- It seems to me that the principle advanced in support of the prosecution's right to introduce evidence of insanity can be effectively implemented by having the issue of the accused's insanity raised at the conclusion of the trial in cases where the defences put forward by the accused have been rejected and the essential elements of the offence have been established by the prosecution beyond a reasonable doubt. At that point I think either party should be free to raise the issue of the accused's insanity. I realize, of course, that there is an element of circularity involved in this approach in that insanity has a direct bearing on proof of mens rea. However, I prefer this approach since it both respects the accused's right to waive the defence of insanity and ensures that any resultant prejudice he suffers in the finding of guilt flows from his own decision not to avail himself of the defence and not as a consequence of the prosecution's having raised the issue in the middle of the trial process.

R. v. Langlois, 2005 BCCA 162 (CanLII)
http://canlii.ca/en/bc/bcca/doc/2005/2005bcca162/2005bcca162.html
[23]In R. v. Swain, 1991 CanLII 104 (SCC), [1991] 1 S.C.R. 933, the Supreme Court of Canada considered the accused’s rights in the context of the operation of the insanity defence under the Code prior to the amendments in 1992 which brought in the NCRMD provisions. One of the issues in that case was whether the Crown could raise the issue of insanity over the wishes of the accused. The Court concluded that the common law rule that allowed the Crown to raise the accused’s mental state before a verdict had been rendered violated the accused’s rights to have control over his own defence. In so deciding, the Court confirmed (at p. 972): Given that the principles of fundamental justice contemplate an accusatorial and adversarial system of criminal justice which is founded on respect for the autonomy and dignity of human beings, it seems clear to me that the principles of fundamental justice must also require than an accused person have the right to control his or her own defence. -- [24]The Supreme Court’s response to its finding was to vary the common law rule to allow the Crown to raise the issue of the mental capacity of the accused only after the court had concluded that the accused is otherwise guilty of the offence — the procedure adopted in the NCRMD Code provisions in 1992.

R. v. Wells, 2004 ABCA 371 (CanLII)
http://canlii.ca/en/ab/abca/doc/2004/2004abca371/2004abca371.html
[8] The following Criminal Code sections are relevant to the defence of NCRMD:
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.
(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.
(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.
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.
(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.
(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.
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.
[10] The Crown’s ability to raise the issue of an accused’s mental capacity is governed by the decision of the Supreme Court of Canada in Swain. Swain confirmed that when an accused does not want to rely on a s. 16 defence of NCRMD, the Crown may raise the issue independently. By doing so the Crown helps ensure that an accused is not wrongly convicted. However, in order to be minimally intrusive on the accused’s right to control the conduct of his defence, the Crown must wait to raise the issue until the trier of fact has decided the accused is guilty of the offence. If the accused is acquitted, the Crown cannot raise the issue.

Criminal Code, RSC 1985, c C-46
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.

 

see the Discrimination page for more.