INTRODUCTION AND BRIEF DESCRIPTION
Accused has the right to challenge the application and present evidence.
SECTION WORDING
672.6(2) On receiving the notice referred to in subsection (1), the accused may challenge the application and adduce evidence for that purpose.
EXPLANATION
Section 672.6(2) of the Criminal Code of Canada details the process for an accused person to challenge an application regarding a mental disorder assessment in the context of a criminal trial. After receiving notice from the Crown that they intend to seek an assessment under section 672.11, the accused is entitled to challenge the application and present evidence to support their challenge. This section reflects the importance of ensuring that an accused person is not unfairly subjected to mental health assessments that could have significant implications for their legal proceedings, including potential findings of guilt, sentencing, and potential indefinite detention in a psychiatric institution. It recognizes that the accused has the right to challenge the Crown's application and present evidence that may challenge the need for an assessment or the appropriateness of the proposed assessment. The right of the accused to challenge the mental disorder assessment application is also an important protection against potential abuse of the mental health system. The section requires that the judge consider the evidence presented by the accused in determining whether the assessment is warranted and that the burden of proving the need for the assessment lies with the Crown. Overall, Section 672.6(2) reflects the Canadian legal system's commitment to ensuring fairness and protecting the rights of the accused in criminal proceedings.
COMMENTARY
Section 672.6(2) of the Criminal Code of Canada provides the accused with the right to challenge the application of detention and adduce evidence to support their challenge. This is an important provision that ensures the protection of the rights of the accused, particularly in cases where the Crown seeks to detain the accused pending trial. The purpose of detention is to ensure that the accused appears before the court to answer to the charges against them. However, the decision to detain the accused must be based on the principles of fairness, justice, and respect for the rights of the accused. The accused must be given an opportunity to challenge the Crown's application for detention and adduce evidence to show that detention is not necessary or that other conditions could be imposed to ensure the accused's appearance before the court. Challenging the application for detention can involve various grounds, including insufficient evidence to support the charges, the likelihood of the accused fleeing, the seriousness of the charges, and the potential harm that the accused poses to the public. The accused can also argue that detention is not necessary or that the proposed conditions of detention are not appropriate or reasonable. The right to adduce evidence is critical in challenging the application for detention. This allows the accused to present evidence that may show that detention is not necessary or that other conditions could be imposed to ensure the accused's appearance before the court. For example, the accused may present evidence of personal ties to the community, a stable employment history, and a willingness to comply with any conditions imposed, such as reporting to the police or surrendering their passport. Section 672.6(2) ensures that the detention process is fair and just. It recognizes the fundamental principles of Canadian criminal law, including the presumption of innocence and the right to liberty. It also ensures that the decision to detain the accused is not arbitrary or based solely on the Crown's application. In conclusion, Section 672.6(2) of the Criminal Code of Canada is an essential provision that ensures the protection of the rights of the accused. The right to challenge the application for detention and adduce evidence to support the challenge is critical in ensuring that the detention process is fair and just. It is a fundamental aspect of Canadian criminal law that recognizes the principles of fairness, justice, and respect for the rights of the accused.
STRATEGY
Section 672.6(2) of the Criminal Code of Canada provides accused individuals with the opportunity to challenge the application of an assessment order concerning their mental state. This section of the code can be of significant importance to both the accused and their legal counsel in a criminal trial. There are various strategic considerations that both the accused and their legal counsel ought to take into account when dealing with Section 672.6(2). One of the foremost considerations is understanding the implications of challenging the application of the order. On the one hand, challenging the application of the assessment order can provide an individual with the chance to dispute the validity of any claims concerning their mental state. On the other hand, contesting the order could lead to protracted legal proceedings and delay finding resolution to the criminal charges. A further consideration is whether to accept the court-appointed assessor or to hire an independent one. The accused may also challenge the credibility or expertise of the court-appointed assessor by highlighting inconsistencies or biases in the assessor's reports. An independent assessment from a qualified clinician can provide a more accurate evaluation of the accused's mental state that can be utilized to challenge the court-appointed assessor's conclusions. Legal counsel may seek to explore other strategic considerations when challenging the application of Section 672.6(2). For instance, they could argue that the assessment was not conducted in a timely manner. Obtaining assessments can be a prolonged process that may be delayed due to the availability of assessors. Such long delays could be claimed to violate the accused's charter rights, who are entitled to a fair and timely trial. Counsel may also seek to explore any legal precedents in analogous cases that could be used to strengthen their arguments. Another potential option for challenging the assessment order is by mounting a constitutional challenge. The accused's lawyer could argue that the requirements for the assessment order are unconstitutional as it infringes on the accused's right to a fair trial. They could also base their argument on the fact that the process of assessment violates the accused's freedom from cruel and unusual punishment, which is a right protected under section 12 of the Canadian Charter of Rights and Freedoms. In preparing for the challenge, legal counsel should also gather evidence that refutes the allegations and conclusions of the court-appointed assessor. This may involve conducting independent assessments concerning the mental state of the accused. The provision of such evidence can be instrumental in challenging the findings of the assessor. In conclusion, Section 672.6(2) of the Criminal Code of Canada provides the accused with a crucial opportunity to challenge the application of the assessment order. The strategic considerations discussed above, such as whether to accept the court-appointed assessor or to hire an independent one, challenging the credibility of the assessor, and mounting a constitutional challenge, can significantly impact the prospects of the accused's defence in court. Legal counsel must carefully weigh the long term implications of challenging the assessment order while also doing everything possible to keep the accused's Charter rights intact.