Review Board Detention and Bail
| This page was last substantively updated or reviewed January 2020. (Rev. # 95754) |
- < Procedure and Practice
- < Mental Illness
- < Review Board
General Principles
It is a principle of fundamental justice under s. 7 of the Charter that the liberty interests of those found NCR be "taken into account at all stages" of the Board's considerations.[1]
- ↑ Pinet v. St. Thomas Psychiatric Hospital, 2004 SCC 21 (CanLII), [2004] 1 SCR 528, per Binnie J, at para 19
Arrest and Release
- Enforcement of Orders and Regulations
- Execution of warrant anywhere in Canada
672.9 Any warrant or process issued in relation to an assessment order or disposition made in respect of an accused may be executed or served in any place in Canada outside the province where the order or disposition was made as if it had been issued in that province.
1991, c. 43, s. 4; 1997, c. 18, s. 91; 2005, c. 22, s. 35(F).
- Arrest without warrant for contravention of disposition
672.91 A peace officer may arrest an accused without a warrant at any place in Canada if the peace officer has reasonable grounds to believe that the accused has contravened or wilfully failed to comply with the assessment order or disposition or any condition of it, or is about to do so.
1991, c. 43, s. 4; 2005, c. 22, s. 36.
- Release or delivery of accused subject to paragraph 672.54(b) disposition order
672.92 (1) If a peace officer arrests an accused under section 672.91 [arrest without warrant for contravention of disposition] who is subject to a disposition made under paragraph 672.54(b) [conditional discharge – review board] or an assessment order, the peace officer, as soon as practicable, may release the accused from custody and
- (a) issue a summons or appearance notice compelling the accused’s appearance before a justice; and
- (b) deliver the accused to the place specified in the disposition or assessment order.
- No release
(2) A peace officer shall not release an accused under subsection (1) [release or delivery of accused subject to paragraph 672.54(b) disposition order] if the peace officer believes, on reasonable grounds,
- (a) that it is necessary in the public interest that the accused be detained in custody having regard to all the circumstances, including the need to
- (i) establish the identity of the accused,
- (ii) establish the terms and conditions of a disposition made under section 672.54 [available dispositions] or of an assessment order,
- (iii) prevent the commission of an offence, or
- (iv) prevent the accused from contravening or failing to comply with the disposition or assessment order;
- (b) that the accused is subject to a disposition or an assessment order of a court, or Review Board, of another province; or
- (c) that, if the accused is released from custody, the accused will fail to attend, as required, before a justice.
- Accused to be brought before justice
(3) If a peace officer does not release the accused, the accused shall be taken before a justice having jurisdiction in the territorial division in which the accused is arrested, without unreasonable delay and in any event within twenty-four hours after the arrest.
- Accused subject to paragraph 672.54(c) disposition order
(4) If a peace officer arrests an accused under section 672.91 [arrest without warrant for contravention of disposition] who is subject to a disposition under paragraph 672.54(c) [order of detention to a hospital], the accused shall be taken before a justice having jurisdiction in the territorial division in which the accused is arrested without unreasonable delay and, in any event, within twenty-four hours.
- Justice not available
(5) If a justice described in subsection (3) [accused to be brought before justice] or (4) [accused subject to paragraph 672.54(c) disposition order] is not available within twenty-four hours after the arrest, the accused shall be taken before a justice as soon as practicable.
1991, c. 43, s. 4; 2005, c. 22, s. 36.
[annotation(s) added]
- Where justice to release accused
672.93 (1) A justice shall release an accused who is brought before the justice under section 672.92 [release or detention of person subject to s. 672.54(b) disposition order] unless the justice is satisfied that there are reasonable grounds to believe that the accused has contravened or failed to comply with a disposition or an assessment order.
- Notice
(1.1) If the justice releases the accused, notice shall be given to the court or Review Board, as the case may be, that made the disposition or assessment order.
- Order of justice pending decision of Review Board
(2) If the justice is satisfied that there are reasonable grounds to believe that the accused has contravened or failed to comply with a disposition or an assessment order, the justice, pending a hearing of a Review Board with respect to the disposition or a hearing of a court or Review Board with respect to the assessment order, may make an order that is appropriate in the circumstances in relation to the accused, including an order that the accused be returned to a place that is specified in the disposition or assessment order. If the justice makes an order under this subsection, notice shall be given to the court or Review Board, as the case may be, that made the disposition or assessment order.
1991, c. 43, s. 4; 2005, c. 22, s. 36.
- Powers of Review Board
672.94 Where a Review Board receives a notice given under subsection 672.93(1.1) [where justice to release accused — notice] or (2) [order of justice pending decision of review board], it may exercise the powers and shall perform the duties mentioned in sections 672.5 [procedure at disposition hearing] and 672.81 to 672.83 [review and appeal of dispositions and orders] as if the Review Board were reviewing a disposition.
1991, c. 43, s. 4; 2005, c. 22, s. 36.
Attendance
Under s. 672.85 authorizes the Review Board Chair to compel the attendance of an NCR accused person.[1] It does not permit the Chair to put any conditions on the attenance order.[2]
- Power to Compel Appearance
- Bringing accused before Review Board
672.85 For the purpose of bringing the accused in respect of whom a hearing is to be held before the Review Board, including in circumstances in which the accused did not attend a previous hearing in contravention of a summons or warrant, the chairperson
- (a) shall order the person having custody of the accused to bring the accused to the hearing at the time and place fixed for it; or
- (b) may, if the accused is not in custody, issue a summons or warrant to compel the accused to appear at the hearing at the time and place fixed for it.
1991, c. 43, s. 4; 2005, c. 22, ss. 32, 42(F).
- ↑ R v Carlyle, 2019 YKSC 38 (CanLII), per E.M. Campbell J, at para 216 (“Section 672.85 grants the Chairperson of a review board the power to compel the attendance of a NCR accused person to a hearing at the time and place fixed by the YRB. Section 672.85 does not expressly give the Chairperson power to attach conditions to that order other than the time and place of the hearing.)
- ↑ Carlyle, ibid.
Interprovincial Transfers
- Interprovincial Transfers
- Interprovincial transfers
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) [order of detention to a hospital] or a court under section 672.58 [treatment disposition] 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.
- Transfer where accused in custody
(2) Where an accused who is detained in custody is to be transferred, an officer authorized by the Attorney General of the province where the accused is being detained shall sign a warrant specifying the place in Canada to which the accused is to be transferred.
- Transfer if accused not in custody
(2.1) An accused who is not detained in custody may be transferred to any other place in Canada where
- (a) the Review Board of the province from which the accused is being transferred recommends a transfer for the purpose of the reintegration of the accused into society or the recovery or treatment 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.
- Order
(3) Where an accused is being transferred in accordance with subsection (2.1) [interprovincial transfers – transfer if accused not in custody], the Review Board of the province from which the accused is being transferred shall, by order,
- (a) direct that the accused be taken into custody and transferred pursuant to a warrant under subsection (2) [interprovincial transfers – accused in custody]; or
- (b) direct that the accused attend at a specified place in Canada, subject to any conditions that the Review Board of the province to or from which the accused is being transferred considers appropriate.
1991, c. 43, s. 4; 2005, c. 22, s. 34.
- Delivery and detention of accused
672.87 A warrant described in subsection 672.86(2) [interprovincial transfers – accused in custody] is sufficient authority
- (a) for any person who is responsible for the custody of an accused to have the accused taken into custody and conveyed to the person in charge of the place specified in the warrant; and
- (b) for the person specified in the warrant to detain the accused in accordance with any disposition made in respect of the accused under paragraph 672.54(c) [order of detention to a hospital].
1991, c. 43, s. 4.
- Review Board of receiving province
672.88 (1) The Review Board of the province to which an accused is transferred under section 672.86 [interprovincial transfers] has exclusive jurisdiction over the accused, and may exercise the powers and shall perform the duties mentioned in sections 672.5 [procedure at disposition hearing] and 672.81 to 672.84 [review and appeal of dispositions and orders] as if that Review Board had made the disposition in respect of the accused.
- Agreement
(2) Notwithstanding subsection (1) [review board of receiving province – powers], the Attorney General of the province to which an accused is transferred may enter into an agreement subject to this Act with the Attorney General of the province from which the accused is transferred, enabling the Review Board of that province to exercise the powers and perform the duties referred to in subsection (1) [review board of receiving province – powers] in respect of the accused, in the circumstances and subject to the terms and conditions set out in the agreement.
1991, c. 43, s. 4; 2014, c. 6, s. 17.
- Other interprovincial transfers
672.89 (1) If an accused who is detained in custody under a disposition made by a Review Board is transferred to another province otherwise than under section 672.86 [interprovincial transfers], the Review Board of the province from which the accused is transferred has exclusive jurisdiction over the accused and may continue to exercise the powers and shall continue to perform the duties mentioned in sections 672.5 [procedure at disposition hearing] and 672.81 to 672.84 [review and appeal of dispositions and orders].
- Agreement
(2) Notwithstanding subsection (1) [other interprovincial transfers – powers], the Attorneys General of the provinces to and from which the accused is to be transferred as described in that subsection may, after the transfer is made, enter into an agreement subject to this Act, enabling the Review Board of the province to which an accused is transferred to exercise the powers and perform the duties referred to in subsection (1) [other interprovincial transfers – powers] in respect of the accused, subject to the terms and conditions and in the circumstances set out in the agreement.
1991, c. 43, s. 4; 2014, c. 6, s. 18.