Powers of the Review Board

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2020. (Rev. # 89508)

Order Assessment

Review Board may order assessment

672.121 The Review Board that has jurisdiction over an accused found not criminally responsible on account of mental disorder or unfit to stand trial may order an assessment of the mental condition of the accused of its own motion or on application of the prosecutor or the accused, if it has reasonable grounds to believe that such evidence is necessary to

(a) make a recommendation to the court under subsection 672.851(1) [recommendation by review board – requirements];
(b) make a disposition under section 672.54 [available dispositions] in one of the following circumstances:
(i) no assessment report on the mental condition of the accused is available,
(ii) no assessment of the mental condition of the accused has been conducted in the last twelve months, or
(iii) the accused has been transferred from another province under section 672.86 [interprovincial transfers]; or
(c) determine whether to refer to the court for review under subsection 672.84(1) [review of finding – high-risk accused – requirements] a finding that an accused is a high-risk accused.

2005, c. 22, s. 3; 2014, c. 6, s. 4.
[annotation(s) added]

CCC (CanLII), (DOJ)


Note up: 672.121


Defined terms: "accused" (s. 672.1(1)), "disposition" (s. 672.1(1)), "high-risk accused" (s. 672.1(1)), "mental disorder" (s. 2), "prosecutor" (s. 2), "Review Board" (s. 672.1(1)), and "verdict of not criminally responsible on account of mental disorder" (s. 672.1(1))

Composition of Board

Review Boards
Review Boards to be established

672.38 (1) A Review Board shall be established or designated for each province to make or review dispositions concerning any accused in respect of whom a verdict of not criminally responsible by reason of mental disorder or unfit to stand trial is rendered, and shall consist of not fewer than five members appointed by the lieutenant governor in council of the province.

Treated as provincial Board

(2) A Review Board shall be treated as having been established under the laws of the province.

Personal liability

(3) No member of a Review Board is personally liable for any act done in good faith in the exercise of the member’s powers or the performance of the member’s duties and functions or for any default or neglect in good faith in the exercise of those powers or the performance of those duties and functions.
1991, c. 43, s. 4; 1997, c. 18, s. 83.

CCC (CanLII), (DOJ)


Note up: 672.38(1), (2) and (3)

Right to Silence

The board has no authority to compel an accused to testify.[1]

Attendance

The board may compel the accused to attend any hearing that concerns him.[2]

Members of Review Board

672.39 A Review Board must have at least one member who is entitled under the laws of a province to practise psychiatry and, where only one member is so entitled, at least one other member must have training and experience in the field of mental health, and be entitled under the laws of a province to practise medicine or psychology.

1991, c. 43, s. 4.

CCC (CanLII), (DOJ)


Note up: 672.39

Chairperson of a Review Board

672.4 (1) Subject to subsection (2) [chairperson of Review Board – transitional], the chairperson of a Review Board shall be a judge of the Federal Court or of a superior, district or county court of a province, or a person who is qualified for appointment to, or has retired from, such a judicial office.

Transitional

(2) Where the chairperson of a Review Board that was established before the coming into force of subsection (1) [chairperson of Review Board] is not a judge or other person referred to therein, the chairperson may continue to act until the expiration of his or her term of office if at least one other member of the Review Board is a judge or other person referred to in subsection (1) [chairperson of Review Board] or is a member of the bar of the province.
1991, c. 43, s. 4.

CCC (CanLII), (DOJ)


Note up: 672.4(1) and (2)

Quorum of Review Board

672.41 (1) Subject to subsection (2) [quorum of Review Board – transitional], the quorum of a Review Board is constituted by the chairperson, a member who is entitled under the laws of a province to practise psychiatry, and any other member.

Transitional

(2) Where the chairperson of a Review Board that was established before the coming into force of this section is not a judge or other person referred to in subsection 672.4(1) [chairperson of Review Board], the quorum of the Review Board is constituted by the chairperson, a member who is entitled under the laws of a province to practise psychiatry, and a member who is a person referred to in that subsection or a member of the bar of the province.
1991, c. 43, s. 4.

CCC (CanLII), (DOJ)


Note up: 672.41(1) and (2)

Majority vote

672.42 A decision of a majority of the members present and voting is the decision of a Review Board.
1991, c. 43, s. 4.

CCC (CanLII), (DOJ)


Note up: 672.42

  1. New Brunswick Review Board v Boucher, 1999 CanLII 14744 (NB CA), 141 CCC (3d) 221, per Drapeau JA (3:0)
  2. New Brunswick Review Board v Boucher, ibid.

Powers and Rules of Board

Powers of Review Boards

672.43 At a hearing held by a Review Board to make a disposition or review a disposition in respect of an accused, the chairperson has all the powers that are conferred by sections 4 and 5 of the Inquiries Act on persons appointed as commissioners under Part I of that Act.
1991, c. 43, s. 4; 2005, c. 22, s. 42(F).

CCC (CanLII), (DOJ)


Note up: 672.43

Compel Testimony

The authority to compel testimony under s. 672.43 does not permit the board to compel the accused to testify.[1]

Rules of Review Board

672.44 (1) A Review Board may, subject to the approval of the lieutenant governor in council of the province, make rules providing for the practice and procedure before the Review Board.

Application and publication of rules

(2) The rules made by a Review Board under subsection (1) [power to make rules for review board] apply to any proceeding within its jurisdiction, and shall be published in the Canada Gazette.

Regulations

(3) Notwithstanding anything in this section, the Governor in Council may make regulations to provide for the practice and procedure before Review Boards, in particular to make the rules of Review Boards uniform, and all regulations made under this subsection prevail over any rules made under subsection (1) [power to make rules for review board].
1991, c. 43, s. 4.

CCC (CanLII), (DOJ)


Note up: 672.44(1), (2) and (3)

  1. R v Boucher v. New Brunswick (Review Board), 1999 CanLII 14744 (NB CA), 141 CCC (3d) 221, 218 N.B.R. (2d) 194, per Drapeau JA
    W(C) v Manitoba (Mental Health Review Board), 1994 CanLII 16690 (MB CA), 23 CRR (2d) 376, per Twaddle JA, at para 35

Regulations

Regulations

672.95 The Governor in Council may make regulations

(a) prescribing anything that may be prescribed under this Part; and
(b) generally to carry out the purposes and provisions of this Part.

1991, c. 43, s. 4.

CCC (CanLII), (DOJ)


Note up: 672.95

Recording of Proceedings

Record of proceedings

672.52 (1) The court or Review Board shall cause a record of the proceedings of its disposition hearings to be kept, and include in the record any assessment report submitted.

Transmittal of transcript to Review Board

(2) If a court holds a disposition hearing under subsection 672.45(1) [disposition hearings – power to start hearing], whether or not it makes a disposition, it shall send without delay to the Review Board that has jurisdiction in respect of the matter, in original or copied form, a transcript of the hearing, any other document or information related to the hearing, and all exhibits filed with it, if the transcript, document, information or exhibits are in its possession.

Reasons for disposition and copies to be provided

(3) The court or Review Board shall state its reasons for making a disposition in the record of the proceedings, and shall provide every party with a copy of the disposition and those reasons.
1991, c. 43, s. 4; 2005, c. 22, ss. 19, 42(F).

CCC (CanLII), (DOJ)


Note up: 672.52(1), (2) and (3)

Section 672.52(3) requires the board to give reasons for their decisions.[1] A mere conclusory statement adopting the recommendation of the treatment team without explanation of what test was applied is not sufficient.[2]

The sufficiency of reasons is the same as judicial decisions. The reasons should be "read as a whole, in the context of the evidence, the issues and the arguments at trial, together with ‘an appreciation of the purposes or functions for which they are delivered’."[3] The question is whether "when read in light of the evidence before it and the nature of its statutory task, the Tribunal’s reasons adequately explain the bases of its decision."[4]

Proceedings not invalid

672.53 Any procedural irregularity in relation to a disposition hearing does not affect the validity of the hearing unless it causes the accused substantial prejudice.
1991, c. 43, s. 4.

CCC (CanLII), (DOJ)


Note up: 672.53

  1. R v Thome, 2018 ABCA 385 (CanLII), per curiam, at paras 18 to 19
    R v Sehmbi, 2019 ABCA 117 (CanLII), at para 20
  2. R v Rackel, 2019 ABCA 170 (CanLII), per curiam, at para 5 ("Merely reciting the recommendations of the treatment team, and then accepting them, will not be sufficient if it is unclear if the team applied the right legal test, or whether the Board has actually turned its mind to that test. A conclusory statement that the appellant represents a significant risk to the safety of the public is insufficient.")
  3. Sehmbi, supra, at para 20
  4. Sehmbi, supra, at para 20

See Also