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    Posted December 9, 2012 by
    DannyH
    Location
    Laval, Quebec

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    DISCRIMINATION, MENTAL ILLNESS AND THE RIGHT TO A TRIAL

     

    "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

    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.

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