Criminal Code of Canada - section 672.16(1) - Presumption against custody

section 672.16(1)

INTRODUCTION AND BRIEF DESCRIPTION

This section outlines the circumstances under which an accused may be detained in custody under an assessment order of a court in Canada.

SECTION WORDING

672.16(1) Subject to subsection (3), an accused shall not be detained in custody under an assessment order of a court unless (a) the court is satisfied that on the evidence custody is necessary to assess the accused, or that on the evidence of a medical practitioner custody is desirable to assess the accused and the accused consents to custody; (b) custody of the accused is required in respect of any other matter or by virtue of any other provision of this Act; or (c) the prosecutor, having been given a reasonable opportunity to do so, shows that detention of the accused in custody is justified on either of the grounds set out in subsection 515(10).

EXPLANATION

Section 672.16(1) of the Criminal Code of Canada deals with the detention of an accused person under an assessment order of the court. This section sets out three circumstances under which an accused can be detained in custody for assessment purposes. The first circumstance is when the court is satisfied on the evidence that custody is necessary to assess the accused. This means that there must be evidence indicating that the accused's assessment cannot be done properly unless they are held in custody. The second circumstance is when the custody of the accused is required in respect of other matters or by virtue of any other provision of the Criminal Code. For example, if the accused is charged with a serious offence and there are concerns about their flight risk, the court may order their detention in custody. The third circumstance is when the prosecutor shows that detention of the accused in custody is justified on either of the grounds set out in subsection 515(10) of the Criminal Code. These grounds include concerns about the accused's likelihood to attend court, the protection or safety of the public, or the proper administration of justice. Overall, this section ensures that an accused person is not arbitrarily detained in custody for assessment purposes, and that detention is only ordered when necessary and justifiable under the law.

COMMENTARY

Section 672.16(1) of the Criminal Code of Canada sets out the conditions under which an accused can be detained in custody under an assessment order. This provision grants the court discretion to determine whether custody is necessary or desirable to assess the accused's mental condition. The purpose of an assessment order is to evaluate an accused's mental fitness to stand trial or determine their criminal responsibility. It is an essential step in ensuring that justice is served, and the accused receives a fair trial. However, the detention of an accused for this purpose must be justified under the law, and the rights of the accused must be protected. Under subsection (1)(a), the court must be satisfied that custody is necessary or desirable to assess the accused's mental condition. This determination must be based on the evidence presented to the court, which could include medical reports, witness statements, and other relevant information. The court must consider whether the accused poses a risk to themselves or others, whether they are likely to flee, or whether they pose a risk to the proper functioning of the justice system. If the court is not satisfied that custody is necessary or desirable under subsection (1)(a), the accused cannot be detained under an assessment order. However, there may still be other provisions under the Criminal Code that allow for their detention, such as in subsection (1)(b). Furthermore, subsection (1)(c) allows the prosecutor to argue that detention in custody is justified on the grounds set out in subsection 515(10) of the Criminal Code. This provision allows for detention if there are reasonable grounds to believe that the accused poses a threat to public safety, will not attend court or may interfere with the administration of justice. The prosecutor must be given a reasonable opportunity to make this submission, and the court must be satisfied that detention is appropriate based on the evidence presented. Overall, section 672.16(1) of the Criminal Code of Canada strikes a balance between protecting the rights of the accused and ensuring that justice is served. It recognizes that the detention of an accused should only occur when it is necessary or desirable to assess their mental condition, and that detainees are entitled to protection under the law. The provision gives the court discretion to consider all the evidence presented and make a fair and just decision in each case.

STRATEGY

Section 672.16(1) of the Criminal Code of Canada outlines the circumstances under which an accused can be detained in custody under an assessment order of a court. There are several strategic considerations that criminal lawyers must take into account when dealing with this section of the Criminal Code. Firstly, it is important to assess the strength of the evidence against the accused. The court will only order custody for the purpose of assessment if it is satisfied that on the evidence custody is necessary to assess the accused. Therefore, if the evidence against the accused is weak or questionable, then the chances of custody being ordered are lowered. Criminal lawyers should carefully scrutinize the evidence and look for any weaknesses or inconsistencies that can be exploited in court. Secondly, lawyers should consider the mental and physical health of the accused. If custody is not necessary for assessment purposes, it may still be desirable if the accused suffers from a mental or physical condition that requires immediate attention. In such cases, the accused may consent to custody if it means that they will receive appropriate medical treatment. Criminal lawyers should seek the advice of qualified medical practitioners to assess the health of their clients and determine whether custody is appropriate. Thirdly, lawyers should consider whether custody is required in respect of any other matter or by virtue of any other provision of the Criminal Code. There are several instances where custody may be required, such as when the accused poses a flight risk, a danger to the public, or a risk of reoffending. If any of these situations apply, the court may order custody even if assessment is not required. Criminal lawyers should carefully scrutinize the facts of the case and assess whether any of these situations apply. Fourthly, if the prosecutor is seeking custody, lawyers should be prepared to rebut the prosecutor's arguments. The prosecutor must show that detention of the accused in custody is justified on either of the grounds set out in subsection 515(10). Lawyers should carefully scrutinize the prosecutor's evidence and arguments and present counterarguments where appropriate. In order to successfully rebut the prosecutor, lawyers must be well-prepared and must have a thorough understanding of the applicable law. Lastly, lawyers should be prepared to negotiate with the prosecutor in order to avoid custody. If the evidence against the accused is weak and there are no other grounds for custody, it may be possible to negotiate a release on bail or to agree to certain conditions for release. Lawyers should be prepared to make persuasive arguments to the prosecutor and, if necessary, to the court in order to avoid custody. In conclusion, there are several strategic considerations that criminal lawyers must take into account when dealing with section 672.16(1) of the Criminal Code of Canada. By carefully assessing the evidence, considering the health of the accused, assessing the other grounds for custody, rebutting the prosecutor's arguments, and negotiating with the prosecutor, lawyers can increase the chances of avoiding custody and obtaining the best possible outcome for their clients.