section 672.48(3)

INTRODUCTION AND BRIEF DESCRIPTION

The chairperson of a Review Board can send an accused back to court for trial on the issue of fitness to stand trial if they believe the accused is fit and the Review Board will not hold a disposition hearing within a reasonable period.

SECTION WORDING

672.48(3) The chairperson of a Review Board may, with the consent of the accused and the person in charge of the hospital where an accused is being detained, order that the accused be sent back to court for trial of the issue of whether the accused is unfit to stand trial, where the chairperson is of the opinion that (a) the accused is fit to stand trial; and (b) the Review Board will not hold a hearing to make or review a disposition in respect of the accused within a reasonable period.

EXPLANATION

Section 672.48(3) of the Criminal Code of Canada outlines the authority of a Review Board chairperson to send an accused person back to court for trial of the issue of whether the accused is fit to stand trial. This provision applies to individuals who have been detained in a hospital for assessment and treatment, following a finding of unfitness to stand trial. The Review Board may be unable to make a disposition in respect of the accused within a reasonable period, leaving the accused in a state of legal limbo. This situation can be particularly detrimental to the accused, as lengthy detentions can have negative effects on their mental health and can exacerbate the harm caused by their criminal charges. The chairperson may order that the accused be sent back to court for trial if they believe that the accused is fit to stand trial and the Review Board will not hold a hearing to make or review a disposition within a reasonable period. This provision allows for the timely resolution of the accused's legal status, balancing the need for protection of society and fair treatment of the accused. Overall, this section is aimed at ensuring that accused persons are not left in a state of legal limbo for extended periods of time and that their right to a fair trial is upheld. It provides an important mechanism for addressing delays in the Review Board process and ensuring that accused persons are not subject to unnecessary and prolonged detention.

COMMENTARY

Section 672.48(3) of the Criminal Code of Canada is an important provision that ensures that individuals who are accused of crimes but deemed unfit to stand trial receive timely and appropriate treatment, and that their rights to a fair and timely trial are protected. The provision allows the chairperson of a Review Board - a body responsible for assessing an accused's fitness to stand trial and making recommendations for their treatment and future disposition - to order that an accused be sent back to court for trial of the issue of whether the accused is unfit to stand trial, where the chairperson is of the opinion that the accused is fit to stand trial and the Review Board will not hold a hearing to make or review a disposition in respect of the accused within a reasonable period. This provision is important for a number of reasons. First, it ensures that individuals who are accused of crimes but deemed unfit to stand trial are not subjected to prolonged periods of detention without appropriate treatment and care. If an accused is deemed unfit to stand trial, they may be detained in a hospital or other facility for treatment until they are deemed fit to stand trial. However, if the Review Board does not schedule a hearing to review or make a disposition in respect of the accused within a reasonable period, the accused may be left in detention without appropriate treatment or care. This can be detrimental to the accused's physical and mental health, and can cause additional harm to their already vulnerable position. Additionally, this provision ensures that individuals who are accused of crimes but deemed unfit to stand trial are not deprived of their right to a fair and timely trial. While individuals who are unfit to stand trial cannot be tried until they are deemed fit, they have a right to a timely determination of their fitness to stand trial and a timely trial if they are found fit. If the Review Board does not schedule a hearing within a reasonable period, the accused may be left in limbo, unable to access their right to a timely trial. By allowing the accused to be sent back to court for trial of the issue of their fitness to stand trial, this provision protects their right to a fair and timely trial. Finally, this provision is beneficial for judicial efficiency. If an accused is deemed fit to stand trial, it may be more efficient for their fitness to stand trial to be determined in court rather than through a hearing before the Review Board. This may help to reduce delays and backlog in the court system, ensuring that cases are resolved in a timely and efficient manner. In conclusion, Section 672.48(3) of the Criminal Code of Canada is an important provision that protects the rights of individuals who are accused of crimes but deemed unfit to stand trial, ensures that they receive timely and appropriate treatment and care, and protects their right to a fair and timely trial. It is an important tool for promoting judicial efficiency and ensuring that Canada's justice system operates fairly and efficiently.

STRATEGY

Section 672.48(3) of the Criminal Code of Canada provides a potential avenue for an accused who has been found unfit to stand trial to be returned to court for a trial on the issue of fitness. This section raises a number of strategic considerations for all involved parties, including the accused, the Crown, defense counsel, and the Review Board. One of the key considerations for the accused is whether to consent to an order under s. 672.48(3). If the accused consents, they run the risk of being found fit to stand trial and being ordered to proceed to trial on the underlying charges. On the other hand, if they refuse to consent, they may continue to be detained without trial for an indefinite period if the Review Board is unable to make a disposition within a reasonable time. Defense counsel will need to carefully weigh these factors in order to advise their clients effectively. For the Crown, a decision to seek an order under s. 672.48(3) may be driven by a number of factors. For example, if the accused's fitness has improved since the initial finding, the Crown may believe that there is a substantial likelihood of a successful trial on the issue of fitness. Furthermore, if the Crown is concerned that the Review Board will not be able to make a disposition within a reasonable period, they may be motivated to seek a court order to avoid ongoing detention without trial. However, the Crown must consider the potential risks of returning the accused to court, including the possibility that they may be acquitted if found unfit. Defense counsel may take a number of strategic approaches in dealing with s. 672.48(3). For example, counsel may seek to negotiate an agreement with the Crown and the Review Board to secure a disposition within a reasonable period, thereby avoiding the need for a trial on fitness. Alternatively, counsel may seek to challenge the initial finding of unfitness or argue that the accused's fitness has deteriorated since the initial assessment. Counsel may also use the possibility of a trial on fitness as leverage to negotiate a more favorable plea deal. Finally, the Review Board itself will need to consider the potential impact of an order under s. 672.48(3) on its own operations. If it appears that the Board will not be able to make a disposition in a timely manner, it may agree to the order to avoid ongoing detention, but this may put a strain on its resources. Conversely, if the Board is confident that it can make a timely disposition, it may resist the order and attempt to resolve the matter through its own processes. In summary, s. 672.48(3) raises a number of strategic considerations for all parties involved in the fitness to stand trial process. Counsel, the Crown, and the Review Board will need to carefully weigh the potential risks and benefits of returning an accused to court for a trial on fitness, and may need to employ a variety of strategic approaches depending on the circumstances of the case.