Treatment of an Accused Unfit to Stand Trial

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• < Mental Illness

General Principles

Upon making a finding that an accused is not fit to stand trial. It is open to the Crown to apply for a treatment order under s. 472.58.

A treatment order under s. 672.58 can only be made with the consent of the hospital.

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.
1991, c. 43, s. 4.

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Criteria for disposition

672.59 (1) No disposition may be made under section 672.58 unless the court is satisfied, on the basis of the testimony of a medical practitioner, that a specific treatment should be administered to the accused for the purpose of making the accused fit to stand trial.

Evidence required

(2) The testimony required by the court for the purposes of subsection (1) shall include a statement that the medical practitioner has made an assessment of the accused and is of the opinion, based on the grounds specified, that

(a) the accused, at the time of the assessment, was unfit to stand trial;

(b) the psychiatric treatment and any other related medical treatment specified by the medical practitioner will likely make the accused fit to stand trial within a period not exceeding sixty days and that without that treatment the accused is likely to remain unfit to stand trial;

(c) the risk of harm to the accused from the psychiatric and other related medical treatment specified is not disproportionate to the benefit anticipated to be derived from it; and

(d) the psychiatric and other related medical treatment specified is the least restrictive and least intrusive treatment that could, in the circumstances, be specified for the purpose referred to in subsection (1), considering the opinions referred to in paragraphs (b) and (c).

1991, c. 43, s. 4.

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Notice required

672.6 (1) The court shall not make a disposition under section 672.58 unless the prosecutor notifies the accused, in writing and as soon as practicable, of the application.

Challenge by accused

(2) On receiving the notice referred to in subsection (1), the accused may challenge the application and adduce evidence for that purpose.
1991, c. 43, s. 4; 1997, c. 18, s. 87.

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Exception

672.61 (1) The court shall not direct, and no disposition made under section 672.58 shall include, the performance of psychosurgery or electro-convulsive therapy or any other prohibited treatment that is prescribed.

Definitions

(2) In this section,
“electro-convulsive therapy” means a procedure for the treatment of certain mental disorders that induces, by electrical stimulation of the brain, a series of generalized convulsions;
“psychosurgery” means any procedure that by direct or indirect access to the brain removes, destroys or interrupts the continuity of histologically normal brain tissue, or inserts indwelling electrodes for pulsed electrical stimulation for the purpose of altering behaviour or treating psychiatric illness, but does not include neurological procedures used to diagnose or treat intractable physical pain, organic brain conditions, or epilepsy, where any of those conditions is clearly demonstrable.
1991, c. 43, s. 4.

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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.
1991, c. 43, s. 4.

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Effective date of disposition

672.63 A disposition shall come into force on the day on which it is made or on any later day that the court or Review Board specifies in it, and shall remain in force until the Review Board holds a hearing to review the disposition and makes another disposition.
1991, c. 43, s. 4; 2005, c. 22, s. 23.

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