Criminal Code of Canada - section 672.76(2) - Discretionary powers respecting suspension of dispositions

section 672.76(2)

INTRODUCTION AND BRIEF DESCRIPTION

This section outlines the powers of a judge of the court of appeal to direct the suspension or carrying out of a disposition pending the determination of an appeal, as well as making other appropriate dispositions or placement decisions.

SECTION WORDING

672.76(2) On receipt of an application made pursuant to subsection (1) a judge of the court of appeal may, if satisfied that the mental condition of the accused justifies it, (a) by order, direct that a disposition made under paragraph 672.54(a) or section 672.58 be carried out pending the determination of the appeal, notwithstanding section 672.75; (b) by order, direct that the application of a placement decision or a disposition made under paragraph 672.54(b) or (c) be suspended pending the determination of the appeal; (c) where the application of a disposition is suspended pursuant to section 672.75 or paragraph (b), make any other disposition in respect of the accused that is appropriate in the circumstances, other than a disposition under paragraph 672.54(a) or section 672.58, pending the determination of the appeal; (d) where the application of a placement decision is suspended pursuant to an order made under paragraph (b), make any other placement decision that is appropriate in the circumstances, pending the determination of the appeal; and (e) give any directions that the judge considers necessary for expediting the appeal.

EXPLANATION

Section 672.76(2) of the Criminal Code of Canada grants powers to a judge of the court of appeal related to the disposition and placement decisions made in regards to an accused who has been found not criminally responsible on account of a mental disorder (NCRMD). If an application is made under subsection (1), the judge may assess the mental condition of the accused and decide if a disposition made under paragraph 672.54(a) or section 672.58 can be carried out until the determination of the appeal, despite section 672.75. Similarly, the judge may suspend the application of a placement decision or a disposition made under paragraph 672.54(b) or (c) until the appeal is determined. In such cases, the judge may make an appropriate disposition or placement decision, apart from 672.54(a) or section 672.58, until the appeal process is completed. The judge can also give directions to expedite the appeal process. A disposition refers to the decision made by a court regarding the treatment of an accused who has been found NCRMD, where the placement decision refers to specifying where that treatment will take place. Section 672.75 pertains to a direction given by a review board to delay the absolute discharge of the accused for a certain period. As per section 672.76(2) of the Criminal Code of Canada, a judge of the court of appeal can exercise discretion based on the mental condition of the accused and the circumstances of the particular case to make a disposition or placement decision that is appropriate until the appeal is resolved. This empowerment of the judge ensures that the accused receives prompt attention and care of his/her mental health while awaiting the decision on their appeal.

COMMENTARY

Section 672.76(2) of the Criminal Code of Canada allows for a judge of the court of appeal to make various orders regarding the disposition of an accused person pending the determination of an appeal. These orders are guided by the mental condition of the accused, and the judge must be satisfied that the condition justifies such orders. The first order that the judge can make is to direct that a disposition be carried out pending the determination of the appeal, even if it goes against section 672.75. This implies that the judge can override a previously made order and ensure that the disposition intended for the accused is carried out despite the appeal. The second order that the judge can make is to suspend the application of a placement decision or a disposition. This order applies to dispositions made under paragraph 672.54(b) or (c), which typically involve a non-custodial sentence or a supervised community placement for an accused person. The suspension of the placement decision or disposition ensures that the accused person remains in custody pending the determination of the appeal. The third order the judge can make is where the disposition is suspended pursuant to section 672.75 or paragraph (b), make any other disposition in respect of the accused that is appropriate in the circumstances, other than a disposition under paragraph 672.54(a) or section 672.58, pending the determination of the appeal. This order allows the judge to modify the type of disposition made for an accused person pending the appeal, as long as it is not the same as the original disposition. The fourth order that the judge can make under the section is, where the application of a placement decision is suspended pursuant to an order made under paragraph (b), make any other placement decision that is appropriate in the circumstances, pending the determination of the appeal. This order authorizes the judge to make a new placement decision for an accused person pending the appeal. Finally, the judge may give any directions that they consider necessary to expedite the appeal. This section of the Criminal Code of Canada is important because it provides a framework for the disposition of accused persons who are awaiting the determination of their appeals. By allowing the judge of the court of appeal to make necessary orders regarding the disposition of an accused person, the Criminal Code ensures that justice is served while still taking the mental condition of the accused into consideration. In summary, Section 672.76(2) of the Criminal Code of Canada is important because it ensures that the disposition of an accused person is guided by their mental condition and that the judge of the court of appeal has the power to make various orders that expedite the appeal process and maintain justice for all parties involved.

STRATEGY

Section 672.76(2) of the Criminal Code of Canada provides the judiciary with certain powers when dealing with appeals related to the mental condition of accused persons. Generally, these powers allow judges to make decisions regarding the disposition and placement of mentally ill accused individuals who are awaiting an appeal. Strategic considerations when dealing with this section of the Criminal Code may include the following: 1. Timing of the application: It is important to file the application for a judge to exercise their powers under section 672.76(2) at an appropriate time, considering the circumstances of the case. In some cases, it may be advisable to file the application early to avoid unnecessary delays in the appeal process or to ensure that the accused remains in an appropriate setting during the appeal process. 2. Validity of the mental condition claim: The judge's exercise of powers under this section hinges on the accused's purported mental condition. It is therefore important to ensure that the claim of mental illness is made in good faith and supported by appropriate medical evidence. A weak or unsupported claim may lead the judge to deny the application, even if there are other legitimate reasons to grant it. 3. Choice of disposition or placement: If the judge grants an application under this section, they can make a variety of orders regarding the disposition and placement of the accused. It is advisable to consider the potential consequences or benefits of each option and select the one that is most appropriate in the circumstances. 4. Appeal strategy: The exercise of powers under section 672.76(2) can impact the overall strategy of an appeal. For example, if the judge suspends a placement decision pending the appeal, the accused may be released into the community, which can affect how evidence is presented during the appeal. It is therefore important to consider how these orders may impact the case as a whole. Some strategies that could be employed when dealing with this section of the Criminal Code include the following: 1. Seeking advice from counsel: Consulting with legal counsel who have experience with appeals related to the mental condition of accused individuals can help guide strategic decisions when dealing with this section of the Criminal Code. 2. Building a strong case for mental illness: To increase the chances of a judge granting an application under this section, it is important to have strong medical evidence supporting the claim of mental illness. A comprehensive and well-supported medical assessment can help make a compelling case. 3. Focusing on the best interests of the accused: The primary goal of exercising powers under section 672.76(2) should be to protect the welfare of the accused. Focusing on the accused's needs and wellbeing can help guide decisions about disposition and placement during the appeal process. 4. Presenting a clear appeals strategy: If an application is granted under this section, it is important to have a clear strategy for how the appeal will proceed. This may involve making strategic decisions about the presentation of evidence or identifying potential legal arguments that can be used to strengthen the appeal.