This article analyzes the Supreme Court’s 2014 decision in R. v. Conception which considered the treatment order provisions of the Criminal Code, finding that a court may not make a forthwith treatment order without the consent of the hospital except in rare cases where a delay would breach the accused’s rights under the Canadian Charter of Rights and Freedoms (Charter). This article argues that the case represents a departure from three decades of legal developments in the sphere of civil and forensic mental health law unified by the principles of restraint and oversight. Further, the article suggests that the decision cedes court and tribunal oversight of the liberty interests of the unfit accused to unregulated hospital administrators, unless the unfit accused can establish a breach under the Charter, an eventuality which would appear to be legally impossible given that by definition the unfit accused is likely unable to instruct defence counsel. The article asserts that the unfit accused persons, who are to be the subject of a treatment orders, are unable legally to advance their Charter rights (having been found unfit). Drawing on the experiences of accused persons found not criminally responsible on account of mental disorder (NCR accused), the article suggests the Court’s expectation that the Charter will prevail and judges will maintain control over the unfit accused is unrealistic and practically impossible.
Fraser, Suzan E..
"Hospital Knows Best: Court and Unfit Accused at the Mercy of Hospital Administrators: The Case of R. v. Conception."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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