Bail and Mentally Disordered Accused: The Expert's Role

• Author: Gary Chaimowitz
• Pages: 201-210

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CH APTER 11

Bail and Mentally Disordered Accused:

The Expert’s Role

Gary Chaimowitz

I. INTRODUCTION

Bail is an “ancient institution,” promulgated initially by the common law and then encoded in statute

(Freiberg & Morgan, 2004). e rationale for bail rests on the core criminal law principle of innocence

until proven guilty.

As noted, in Chapter 9: Mental Health Courts and Diversion, police have considerable discretion

in deciding whether to charge an individual, or informally divert him by, for example, taking him to

hospital. Police also have considerable discretion when it comes to pre-trial release. Regardless of the

charge, and based primarily on the accused’s presentation and any information the ocer has about the

accused regarding the likelihood he will attend court or act in a manner dangerous to himself or the

public, the ocer may choose not to detain the accused, and instead deal with t he accused in several

ways, described below.

An accused charged with a crimina l oence may be detained by the state until her guilt is established

in court by way of a criminal trial. Because Canadian law recognizes the principle that a person accused

of a crime is innocent until proven guilty, detention until such proof is established must be done only in

specic and limited situations. An accused charged with a criminal oence, who is not released by the

arresting ocer, will be brought before a justice of the peace for a bail hearing, more properly named a

judicial interim release hea ring.

e general rule under the Criminal Code of Canada (s. 515(10)) is that an accused is entitled to be

released from jail pending the disposition of her criminal charges. e accused can be detained (i.e., not

be granted bail) only if the Crown can prove one of three things:

• that detention is necessary to ensure the accused’s attendance in court (called the “primary ground”

for detention).

• that the detention is necessary for the protection or safety of the public, having regard to all the

circumstances, including any substantial likelihood that the accused will, if released from custody,

commit criminal oences or interfere with the administration of justice — for example, threaten a

witness (called the “secondary ground” for detention).

• that the detention is necessary in order to maintain condence in the administration of justice, hav-

ing regard to all the circumstances, including the apparent strength of the prosecution’s case, the

gravity of the oence, the circumstances surrounding its commission and the potential for a lengthy

term of imprisonment (called the “tertiary ground” for detention).

Apart from the better-known purposes for psychiatric expertise in criminal matters, li ke tness to

stand trial and criminal responsibility, a psychiatric assessment and report may also be sought to sup-

port an accused’s application for bail. is may occur in cases where the accused in fact suers from

a mental illness but psychiatric expertise may also be sought in cases where the circumstances of the

oence suggests some type of derangement in mental functioning, however transient, which, without