INTRODUCTION AND BRIEF DESCRIPTION
An accused in custody may be transferred to another location in Canada with the recommendation of the Review Board and consent from the Attorney General.
SECTION WORDING
672.86(1) An accused who is detained in custody or directed to attend at a hospital pursuant to a disposition made by a court or Review Board under paragraph 672.54(c) or a court under section 672.58 may be transferred to any other place in Canada where (a) the Review Board of the province where the accused is detained or directed to attend recommends a transfer for the purpose of the reintegration of the accused into society or the recovery, treatment or custody of the accused; and (b) the Attorney General of the province to which the accused is being transferred, or an officer authorized by that Attorney General, and the Attorney General of the province from which the accused is being transferred, or an officer authorized by that Attorney General, give their consent.
EXPLANATION
Section 672.86(1) of the Criminal Code of Canada provides the legal framework for the transfer of an accused who is detained in custody or directed to attend at a hospital pursuant to a disposition made by a court or Review Board. It allows for such an accused to be transferred to any other place in Canada where the Review Board of the province where the accused is detained or directed to attend recommends a transfer for the purpose of the reintegration of the accused into society or the recovery, treatment or custody of the accused. There are two conditions that must be met for the transfer to occur. Firstly, the Review Board must recommend the transfer for the purpose of the accused's reintegration into society or the recovery, treatment, or custody of the accused. This implies that the transfer must be in the best interest of the accused and that it would aid in their rehabilitation. Secondly, the transfer must only occur with the consent of both the Attorney General of the province to which the accused is being transferred, or an officer authorized by that Attorney General, and the Attorney General of the province from which the accused is being transferred or an officer authorized by that Attorney General. This ensures that the transfer is done legally and with the proper authority. In essence, Section 672.86(1) provides for the transfer of an accused to another location within Canada where their rehabilitation could be more effective while still maintaining the legal process. This legal framework is crucial in ensuring that all accused persons have fair and equal treatment regardless of their location in Canada.
COMMENTARY
Section 672.86(1) of the Criminal Code of Canada allows for the transfer of a detained accused person to another place in Canada if certain conditions are met. The Review Board of the province where the accused is detained or directed to attend must recommend the transfer for the purposes of reintegration into society or treatment, and both the Attorney General of the sending and receiving province must give their consent. This provision recognizes that the needs of accused persons may change over time, and that they may require different levels of treatment or supervision as they progress towards reintegration into society. It provides a framework for the transfer of accused persons to facilities or programs that may better suit their needs and promote their successful reintegration. However, the provision also raises some concerns. First, the requirement for consent from both Attorney Generals could potentially result in delays or refusals, leaving accused persons in limbo. Additionally, the requirement for a recommendation from the Review Board may limit the ability of a court or other authority to make decisions about the transfer based on their own assessment of the accused's needs. There may also be concerns about the availability and quality of facilities in different provinces. Accused persons may be transferred to facilities with different standards of care or different approaches to treatment, which could impact their progress towards reintegration. The provision does not address how to reconcile potential differences in treatment between provinces. Despite these concerns, section 672.86(1) provides an important mechanism for accused persons to receive the treatment and support they need. It recognizes that reintegration and treatment are ongoing processes that may require flexibility and adaptation over time. By providing a framework for inter-provincial transfers, the provision encourages cooperation and collaboration between provinces and adds an important dimension to the justice system's ability to support accused persons.
STRATEGY
Section 672.86(1) of the Criminal Code of Canada provides for the possible transfer of an accused who is being detained in custody or directed to attend a hospital to another facility in Canada, subject to certain conditions being satisfied. Transfers pursuant to this provision can have significant consequences for the accused, the receiving facility, and other stakeholders, and must therefore be approached strategically. One strategic consideration when dealing with section 672.86(1) is whether a transfer is warranted in the first place. The provision requires that the Review Board of the province where the accused is detained or directed to attend recommend the transfer for the purpose of the accused's reintegration into society or recovery, treatment, or custody. The recommendation must be based on an assessment of the accused's needs and the capacity of the receiving facility to meet those needs. Before agreeing to a transfer, the Attorney General of the province to which the accused is being transferred, or an officer authorized by that Attorney General, should carefully consider whether the reasons for the transfer are legitimate and whether the receiving facility is in fact capable of meeting the accused's needs. Another strategic consideration when dealing with section 672.86(1) is the potential impact of the transfer on the accused. Transfers can be disruptive and stressful for accused persons, particularly if they are being moved far from their support network, legal counsel, or community. The attorney for the accused should negotiate with the authorities to ensure that the transfer is as smooth as possible. They should also ensure that the accused's constitutional rights are maintained, including the right to a lawyer, access to bail, and the right to a fair and impartial trial. A third strategic consideration when dealing with section 672.86(1) is the impact of the transfer on the receiving facility. The receiving facility should be appropriately equipped to handle the accused's needs, including mental health treatment if necessary. The facility should have appropriate medical and security personnel, as well as the necessary structural and operational facilities to ensure that the transfer is carried out safely and securely. The receiving facility should also be advised of the accused's security level and any special requirements, such as medication or physical therapy. It is recommended that the transferring province provide the receiving facility with as much information as possible that is relevant about the accused. One strategy that could be employed when dealing with section 672.86 is to negotiate with the Review Board and the relevant Attorney General to ensure that any transfer is based on a solid assessment of the accused's needs and the capacity of the receiving facility to meet those needs. The attorney for the accused could provide the Board and Attorney General with additional information and assessments from other professionals. It is also suggested that the accused's legal counsel remain involved and make sure that they maintain communication with the client. This will reassure their clients that their legal rights are being protected and will also ensure that the legal counsel is advocating strongly on their behalf. Another strategy that could be employed when dealing with section 672.86 is to document all legal and administrative decisions that are made, including the rationale for any transfers. This will help lawyers identify potential vulnerabilities in the transfer process, will keep all parties informed and aware of the transfer process, and will provide a reference to all stakeholders concerned with the accused and the receiving facility to review the details of the transfer. Overall, a strategic approach to dealing with section 672.86(1) must take into consideration the specific circumstances of the accused, the receiving facility, and the legal and administrative requirements of transfer process. This approach will ensure that the rights of the accused are protected, that the transfer is carried out safely and securely, and that the accused is provided with the best chance to reintegrate into society.