Pre-Trial Issues

• Author: Hy Bloom, Richard D Schneider
• Pages: 153-162

153

chapter four

Pre-Trial Issues

It should be noted that while the formal psycho -legal issues of f‌itness to

stand trial and c riminal responsibility a re certainly the most common situ-

ations for psychiatric evidence to be sought or adduced, there are other

junctures at which it can be most impor tant. Psychiatric consultation and

evidence may be of use in a wide variet y of scenarios. The need for psychiat-

ric expert ise can arise in any instance where a mental health, psychological,

or behavioural issue becomes a focus of concern or interest in a proceeding

before a criminal cour t. There is a great deal of room for the creative use of

psychiatry, provided it meets the th reshold test of relevance and reliability.1

A. JUDICIAL INTERIM RELEASE OR “BAIL”

1) Psychiatric Aspects of Bail-Worthiness

Mentally disordered offenders may experience diff‌iculty obtainin g judicial

interim release because their menta l condition may have implications for

both the primar y and secondary grounds. T he bail-worthiness of a mental-

ly disordered accused may depend on whether he has suff‌icient psychi atric

supervision in place. Psychiatric ev aluations with respect to judicial i nter-

im release can raise some strategic concerns for defence counsel. The clin-

ician will often f‌i nd it necessary to review the current al legations against

the accused as they may well have implications for his suitabil ity for re-

lease; however, that information may turn out to be inculpatory or ot herwise

prejudicial.

1 R v Mohan, [1994] 2 SCR 9; R v Olscamp, [1994] OJ No 2926 (Gen D iv).