Appeal of Mental Illness Dispositions

This page was last substantively updated or reviewed January 2015. (Rev. # 95675)

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General Principles

A review of a disposition for reasonableness asks whether the board's assessment of risk and disposition is supported by reasons that bear "even a somewhat probing examination."

Grounds of Appeal

Appeals

Grounds for appeal

672.72 (1) Any party may appeal against a disposition made by a court or a Review Board, or a placement decision made by a Review Board, to the court of appeal of the province where the disposition or placement decision was made on any ground of appeal that raises a question of law or fact alone or of mixed law and fact.

Limitation period for appeal

(2) An appellant shall give notice of an appeal against a disposition or placement decision in the manner directed by the applicable rules of court within fifteen days after the day on which the appellant receives a copy of the placement decision or disposition and the reasons for it or within any further time that the court of appeal, or a judge of that court, may direct.

Appeal to be heard expeditiously

(3) The court of appeal shall hear an appeal against a disposition or placement decision in or out of the regular sessions of the court, as soon as practicable after the day on which the notice of appeal is given, within any period that may be fixed by the court of appeal, a judge of the court of appeal, or the rules of that court.
1991, c. 43, s. 4; 1997, c. 18, s. 88.

– CCC (CanLII), (DOJ)

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Appeal on the transcript

672.73 (1) An appeal against a disposition by a court or Review Board or placement decision by a Review Board shall be based on a transcript of the proceedings and any other evidence that the court of appeal finds necessary to admit in the interests of justice.

Additional evidence

(2) For the purpose of admitting additional evidence under this section, subsections 683(1) [powers of court of appeal – interests of justice] and (2) [parties entitled to adduce evidence and be heard] apply, with such modifications as the circumstances require.
1991, c. 43, s. 4.
[annotation(s) added]

– CCC (CanLII), (DOJ)

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Transfers of Accused

The decision whether to order an accused to be transferred inter-provincially is does not have a right of appeal under 672.72 as it is not a disposition.

Notice of Appeal

Notice of appeal to be given to court or Review Board

672.74 (1) The clerk of the court of appeal, on receiving notice of an appeal against a disposition or placement decision, shall notify the court or Review Board that made the disposition.

Transmission of records to court of appeal

(2) On receipt of notification under subsection (1) [notice of appeal to be given to court or Review Board], the court or Review Board shall transmit to the court of appeal, before the time that the appeal is to be heard or within any time that the court of appeal or a judge of that court may direct,

(a) a copy of the disposition or placement decision;

(b) all exhibits filed with the court or Review Board or a copy of them; and

(c) all other material in its possession respecting the hearing.

Record to be kept by court of appeal

(3) The clerk of the court of appeal shall keep the material referred to in subsection (2) [transmission of records to court of appeal] with the records of the court of appeal.

Appellant to provide transcript of evidence

(4) Unless it is contrary to an order of the court of appeal or any applicable rules of court, the appellant shall provide the court of appeal and the respondent with a transcript of any evidence taken before a court or Review Board by a stenographer or a sound recording apparatus, certified by the stenographer or in accordance with subsection 540(6) [transcription of record taken by sound recording apparatus], as the case may be.

Saving

(5) An appeal shall not be dismissed by the court of appeal by reason only that a person other than the appellant failed to comply with this section.
1991, c. 43, s. 4; 2005, c. 22, s. 42(F).
[annotation(s) added]

– CCC (CanLII), (DOJ)

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Suspension of Disposition

Automatic suspension of certain dispositions

672.75 The filing of a notice of appeal against a disposition made under section 672.58 [treatment disposition] suspends the application of the disposition pending the determination of the appeal.
1991, c. 43, s. 4; 2014, c. 6, s. 13.
[annotation(s) added]

– CCC (CanLII), (DOJ)

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Application respecting dispositions under appeal

672.76 (1) Any party who gives notice to each of the other parties, within the time and in the manner prescribed, may apply to a judge of the court of appeal for an order under this section respecting a disposition or placement decision that is under appeal.

Discretionary powers respecting suspension of dispositions

(2) On receipt of an application made pursuant to subsection (1) [application respecting dispositions under appeal] a judge of the court of appeal may, if satisfied that the mental condition of the accused justifies it,

(a) by order, direct that a disposition made under section 672.58 [treatment disposition] be carried out pending the determination of the appeal, despite section 672.75 [automatic suspension of certain dispositions];

(a.1) by order, direct that a disposition made under paragraph 672.54(a) [absolute discharge – review board] be suspended pending the determination of the appeal;

(b) by order, direct that the application of a placement decision or a disposition made under paragraph 672.54(b) [conditional discharge – review board] or (c) [order of detention to a hospital] be suspended pending the determination of the appeal;

(c) where the application of a disposition is suspended pursuant to section 672.75 [automatic suspension of certain dispositions] or paragraph (b) [discretionary powers respecting suspension of dispositions – suspending placement], make any other disposition in respect of the accused that is appropriate in the circumstances, other than a disposition under paragraph 672.54(a) [absolute discharge – review board] or section 672.58 [treatment disposition], pending the determination of the appeal;

(d) where the application of a placement decision is suspended pursuant to an order made under paragraph (b), make any other placement decision that is appropriate in the circumstances, pending the determination of the appeal; and

(e) give any directions that the judge considers necessary for expediting the appeal.

Copy of order to parties

(3) A judge of the court of appeal who makes an order under this section shall send a copy of the order to each of the parties without delay.
1991, c. 43, s. 4; 2014, c. 6, s. 14.
[annotation(s) added]

– CCC (CanLII), (DOJ)

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Effect of suspension of disposition

672.77 Where the application of a disposition or placement decision appealed from is suspended, a disposition, or in the absence of a disposition any order for the interim release or detention of the accused, that was in effect immediately before the disposition or placement decision appealed from took effect, shall be in force pending the determination of the appeal, subject to any disposition made under paragraph 672.76(2)(c) [discretionary powers respecting suspension of dispositions – xxx].
1991, c. 43, s. 4.
[annotation(s) added]

– CCC (CanLII), (DOJ)

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Powers of Court of Appeal

Powers of court of appeal

672.78 (1) The court of appeal may allow an appeal against a disposition or placement decision and set aside an order made by the court or Review Board, where the court of appeal is of the opinion that

(a) it is unreasonable or cannot be supported by the evidence;

(b) it is based on a wrong decision on a question of law; or

(c) there was a miscarriage of justice.

Idem

(2) The court of appeal may dismiss an appeal against a disposition or placement decision where the court is of the opinion

(a) that paragraphs (1)(a) [powers of court of appeal – set aside unreasonable order], (b) [powers of court of appeal – set aside error of law] and (c) [powers of court of appeal – set aside miscarriage of justice] do not apply; or

(b) that paragraph (1)(b) [powers of court of appeal – set aside error of law] may apply, but the court finds that no substantial wrong or miscarriage of justice has occurred.

Orders that the court may make

(3) Where the court of appeal allows an appeal against a disposition or placement decision, it may

(a) make any disposition under section 672.54 [available dispositions] or any placement decision that the Review Board could have made;

(b) refer the matter back to the court or Review Board for re-hearing, in whole or in part, in accordance with any directions that the court of appeal considers appropriate; or

(c) make any other order that justice requires.

1991, c. 43, s. 4; 1997, c. 18, s. 89.
[annotation(s) added]

672.79 [Repealed, 2005, c. 22, s. 26]

672.8 [Repealed, 2005, c. 22, s. 26]

– CCC (CanLII), (DOJ)

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