Protecting the Rights
of people found NCR
CHARTER RIGHTS
Supreme Court of Canada in Winko, Pinet-Tulikorpi, and Mazzei
Jennifer Chambers
Empowerment Council Coordinatorgh
Four Guiding Pillars
Section XX.1 of the Canadian Criminal Code relates to those individuals found
Not Criminally Responsible Due to Mental Disorder ( NCR ) or Unfit to Stand
Trial.
It is to be read in the context of the four guiding " pillars " as follows:
•
protection of the public from dangerous persons,
•
the mental state of the accused,
•
•
re-integration of the accused into society, and
the other needs of the accused.
At no point in the majority decision of the SCC in Winko, has greater
importance been apportioned to one or another of these " pillars ".
“Dangerousness”
“Dangerousness” has a specific, restricted
meaning of “a significant threat to the safety of
the public”.
• It
must be supported by the evidence.
• There
must be a real risk of physical or
psychological harm and this harm must be
serious.
• The
conduct or activity creating the harm must
be criminal in nature.”
Evidence
The NCR accused does not have to prove
anything.
There is no presumption of dangerousness
permitted by law.
“If the evidence does not support the conclusion
that the NCR is a significant risk, the NCR need
do nothing; the only possible order is an absolute
discharge.”
Restriction
In all cases, the Review Board must
make the disposition that is the
least restrictive of the NCR
accused’s liberty possible.
Winko followed by Pinet-Tulikorpi
Consider Needs
The Review Board has an
affirmative duty “to consider the
accused’s personal needs”
SCC in Winko and Mazzei
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Protecting the Rights of people found NCR