THE RELEVANCE OF THE FITNESS TO STAND TRIAL PROVISIONS TO PERSONS WITH MENTAL HANDICAP

Authors

  • HARVEY S SAVAGE

Abstract

This article scrutinizes the tests under provisions governing fitness to stand Ttrial, attempting to expose how the utterly confused state of the law allows infringement of civil liberties. It illustrates provisions containing a lack of clearly defined criteria, little or no due process, arbitrariness of detention, the unsettled nature of authorized treatments and illogical review criteria. It uses Emerson Bonnar, detained indefinitely on a finding that he was unfit to stand trial, as an example of the provision’s unfair effect. It considers the injustice created by the nature of the process for determining fitness, the roles of the Board of Review and Lieutenant Governor, the nature of review and review criteria, lack of statutory right of review, authority for treatment and the applicability of the Bill of Rights. He concludes that poor legislative drafting has imposed judicial restraint and allowed administrative abuse, and recommends provincial health legislation protecting detainees with procedural safeguards.

Keywords:

Criminal Law, Insanity

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Published

1981-06-01

Issue

Section

Legal Commentary

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