Review Board Disposition Hearings

Legislation

Disposition Hearings

Status quo pending Review Board hearing

672.46 (1) If the court does not make a disposition in respect of the accused at a disposition hearing, any order for the detention of the accused or any release order, appearance notice, summons or undertaking in respect of the accused that is in force at the time the verdict of not criminally responsible on account of mental disorder or unfit to stand trial is rendered continues in force, subject to its terms, until the Review Board makes a disposition.

Variation

(2) Despite subsection (1) [status quo pending Review Board hearing], a court may, pending a disposition by the Review Board in respect of the accused, on cause being shown, vacate the detention order, release order, appearance notice, summons or undertaking referred to in that subsection, and make any other order for the detention of the accused or any other release order that the court considers to be appropriate in the circumstances, including an order directing that the accused be detained in custody in a hospital.
1991, c. 43, s. 4; 2005, c. 22, s. 42(F); 2019, c. 25, s. 276.
[annotation(s) added]

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Note up: 672.46 (1) and (2)

Review Board to make disposition where court does not

672.47 (1) Where a verdict of not criminally responsible on account of mental disorder or unfit to stand trial is rendered and the court makes no disposition in respect of an accused, the Review Board shall, as soon as is practicable but not later than forty-five days after the verdict was rendered, hold a hearing and make a disposition.

Extension of time for hearing

(2) Where the court is satisfied that there are exceptional circumstances that warrant it, the court may extend the time for holding a hearing under subsection (1) [review board to make disposition where court does not] to a maximum of ninety days after the verdict was rendered.

Disposition made by court

(3) Where a court makes a disposition under section 672.54 [available dispositions] other than an absolute discharge in respect of an accused, the Review Board shall, not later than ninety days after the disposition was made, hold a hearing and make a disposition in respect of the accused.

Exception — high-risk accused

(4) Despite subsections (1) to (3) [certain provisions re board disposition where court does not], if the court makes a disposition under subsection 672.64(3) [detention of high-risk accused], the Review Board shall, not later than 45 days after the day on which the disposition is made, hold a hearing and make a disposition under paragraph 672.54(c) [order of detention to a hospital], subject to the restrictions set out in that subsection.

Extension of time for hearing

(5) If the court is satisfied that there are exceptional circumstances that warrant it, the court may extend the time for holding a hearing under subsection (4) [exception – high-risk accused] to a maximum of 90 days after the day on which the disposition is made.
1991, c. 43, s. 4; 2005, c. 22, ss. 15, 42(F); 2014, c. 6, s. 6.
[annotation(s) added]

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Note up: 672.47 (1), (2), (3), (4), and (5)

Review Board to determine fitness

672.48 (1) Where a Review Board holds a hearing to make or review a disposition in respect of an accused who has been found unfit to stand trial, it shall determine whether in its opinion the accused is fit to stand trial at the time of the hearing.

Review Board shall send accused to court

(2) If a Review Board determines that the accused is fit to stand trial, it shall order that the accused be sent back to court, and the court shall try the issue and render a verdict.

Chairperson may send accused to court

(3) The chairperson of a Review Board may, with the consent of the accused and the person in charge of the hospital where an accused is being detained, order that the accused be sent back to court for trial of the issue of whether the accused is unfit to stand trial, where the chairperson is of the opinion that

(a) the accused is fit to stand trial; and

(b) the Review Board will not hold a hearing to make or review a disposition in respect of the accused within a reasonable period.

1991, c. 43, s. 4; 2005, c. 22, s. 42(F).

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Note up: 672.48 (1), (2) and (3)

Appellate Review

There is no right of appeal for any finding made under s. 672.48 for fitness.^[1]

↑ R v Paré, 2001 CanLII 19270 (ON CA), per curiam (3:0)

Dispositions by Courts or Review Boards

Dispositions by a Court or Review Board

Terms of Dispositions

Dispositions that may be made

672.54 When a court or Review Board makes a disposition under subsection 672.45(2) [disposition hearings – obligation to make disposition], section 672.47 [disposition hearing where court does not], subsection 672.64(3) [detention of high-risk accused] or section 672.83 [disposition by Review Board] or 672.84 [review of finding – high-risk accused], it shall, taking into account the safety of the public, which is the paramount consideration, the mental condition of the accused, the reintegration of the accused into society and the other needs of the accused, make one of the following dispositions that is necessary and appropriate in the circumstances:

(a) where a verdict of not criminally responsible on account of mental disorder has been rendered in respect of the accused and, in the opinion of the court or Review Board, the accused is not a significant threat to the safety of the public, by order, direct that the accused be discharged absolutely;

(b) by order, direct that the accused be discharged subject to such conditions as the court or Review Board considers appropriate; or

(c) by order, direct that the accused be detained in custody in a hospital, subject to such conditions as the court or Review Board considers appropriate.

1991, c. 43, s. 4; 2005, c. 22, s. 20; 2014, c. 6, s. 9.
[annotation(s) added]

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Note up: 672.54

There is no presumption of dangerousness under s. 672.54.^[1]

Before an NCR accused can be denied liberty, the Crown must show that the person is a "significant risk to the public".^[2]

Analysis

The reviewing board must determine the risk to the public by considering whether at the time of the review, based on the evidence, is there "some certainty" that the NCR accused poses a "significant threat to the safety of the public".^[3]

A "significant threat" means a "risk of serious physical or psychological harm" from criminal conduct, whether violent or not.^[4] It is not enough to speculate or be uncertain of the probability of the risk. It must be based on evidence.^[5]

Where a "significant risk" is found, the board must choose the "least onerous and restrictive disposition" that maintains public safety.^[6]

Under s. 672.54(a), where the evidence does not support "with some certainty" that the NCR accused is a significant threat to the public, the NCR accused must be discharged absolutely.^[7]

Significant threat to safety of public

672.5401 For the purposes of section 672.54 [available dispositions], a significant threat to the safety of the public means a risk of serious physical or psychological harm to members of the public — including any victim of or witness to the offence, or any person under the age of 18 years — resulting from conduct that is criminal in nature but not necessarily violent.
2014, c. 6, s. 10.

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Note up: 672.5401

Appellate Review

On appeal, the reviewing court should not "quickly" overturn the board's "expert opinion" on how to manage a risk to the public.^[8]

↑ Winko v British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 SCR 625, per McLachlin J, at para 49
↑ Winko, ibid., at para 49 ("There must be evidence of a significant risk to the public before the court or Review Board can restrict the NCR accused’s liberty.")
↑ Winko, ibid., at para 62.3
R v Rackel, 2019 ABCA 170 (CanLII), per curiam, at para 6
↑ Rackel, supra, at para 6
Winko, supra, at paras 62.2, 62.3
↑ Rackel, supra, at para 6
↑ Rackel, supra, at para 6
Winko, supra, at paras 43, 62.9
↑ Rackel, supra, at para 6
↑ R v Conway, 2010 SCC 22 (CanLII), per Abella J, at para 95

Victims

Victim impact statement

672.541 If a verdict of not criminally responsible on account of mental disorder has been rendered in respect of an accused, the court or Review Board shall

(a) at a hearing held under section 672.45 [disposition hearings], 672.47 [disposition hearing where court does not], 672.64 [finding re high-risk accused], 672.81 [mandatory 12 month review of dispositions] or 672.82 [discretionary review of dispositions] or subsection 672.84(5) [high-risk accused – review of conditions], take into consideration any statement filed by a victim in accordance with subsection 672.5(14) [procedure at disposition hearing – victim impact statements] in determining the appropriate disposition or conditions under section 672.54 [available dispositions], to the extent that the statement is relevant to its consideration of the criteria set out in section 672.54 [available dispositions];

(b) at a hearing held under section 672.64 [finding re high-risk accused] or subsection 672.84(3) [high-risk accused – review], take into consideration any statement filed by a victim in accordance with subsection 672.5(14) [procedure at disposition hearing – victim impact statements], to the extent that the statement is relevant to its consideration of the criteria set out in subsection 672.64(1) [finding re high-risk accused – requirements] or 672.84(3) [high-risk accused – review], as the case may be, in deciding whether to find that the accused is a high-risk accused, or to revoke such a finding; and

(c) at a hearing held under section 672.81 [mandatory 12 month review of dispositions] or 672.82 [discretionary review of dispositions] in respect of a high-risk accused, take into consideration any statement filed by a victim in accordance with subsection 672.5(14) [procedure at disposition hearing – victim impact statements] in determining whether to refer to the court for review the finding that the accused is a high-risk accused, to the extent that the statement is relevant to its consideration of the criteria set out in subsection 672.84(1) [review of finding – high-risk accused – requirements].

1999, c. 25, s. 12(Preamble); 2005, c. 22, s. 21; 2014, c. 6, s. 10.
[annotation(s) added]

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Note up: 672.541

Conditions re Protected Persons

Additional conditions — safety and security

672.542 When a court or Review Board holds a hearing referred to in section 672.5 [procedure at disposition hearing], the court or Review Board shall consider whether it is desirable, in the interests of the safety and security of any person, particularly a victim of or witness to the offence or a justice system participant, to include as a condition of the disposition that the accused

(a) abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the disposition, or refrain from going to any place specified in the disposition; or

(b) comply with any other condition specified in the disposition that the court or Review Board considers necessary to ensure the safety and security of those persons.

2014, c. 6, s. 10.
[annotation(s) added]

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Note up: 672.542

Other Conditions

Treatment not a condition

672.55 (1) No disposition made under section 672.54 [available dispositions] shall direct that any psychiatric or other treatment of the accused be carried out or that the accused submit to such treatment except that the disposition may include a condition regarding psychiatric or other treatment where the accused has consented to the condition and the court or Review Board considers the condition to be reasonable and necessary in the interests of the accused.
(2) [Repealed, 2005, c. 22, s. 22]
1991, c. 43, s. 4; 1997, c. 18, s. 86; 2005, c. 22, s. 22.
[annotation(s) added]

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Note up: 672.55 (1)

Section 672.55 does "require that an accused.. [to] have the capacity to consent ... to the treatment referred to in the condition." It presumes "valid consent to treatment has been, or will be, otherwise obtained".^[1]

For consent to be given, the accused must be "must understand all information relevant to the operation of the condition, and appreciate the reasonably foreseeable consequences of agreeing to the condition". It does not require that they have insight into their medical condition.^[2]

Section 672.56(1) provides a method of varying conditions placed upon an NCR accused.

Section 672.56(1.1) addresses the category of high-risk offenders which places the added requirements set out in s. 672.64.

Delegated authority to vary restrictions on liberty of accused

672.56 (1) A Review Board that makes a disposition in respect of an accused under paragraph 672.54(b) [conditional discharge – review board] or (c) [order of detention to a hospital] may delegate to the person in charge of the hospital authority to direct that the restrictions on the liberty of the accused be increased or decreased within any limits and subject to any conditions set out in that disposition, and any direction so made is deemed for the purposes of this Act to be a disposition made by the Review Board.

Exception — high-risk accused

(1.1) If the accused is a high-risk accused, any direction is subject to the restrictions set out in subsection 672.64(3) [detention of high-risk accused].

Notice to accused and Review Board of increase in restrictions

(2) A person who increases the restrictions on the liberty of the accused significantly pursuant to authority delegated to the person by a Review Board shall

(a) make a record of the increased restrictions on the file of the accused; and

(b) give notice of the increase as soon as is practicable to the accused and, if the increased restrictions remain in force for a period exceeding seven days, to the Review Board.

1991, c. 43, s. 4; 2014, c. 6, s. 11.
[annotation(s) added]

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Note up: 672.56 (1), (1.1) and (2)

Section 672.56(2) acts as a "final liberty safeguard, allowing for a second-look at those hospital decisions that have such serious ramifications for the liberty of the NCR accused".^[3] This notice requirement is invoked only where the liberty status "clearly deviates from the NCR accused's liberty norm". The change must be so significant that a reasonable person would think the Board should be called to consider a change in circumstances.^[4]

↑ Ohenhen (Re), 2018 ONCA 65 (CanLII), per Tulloch JA, at para 57
↑ Ohenhen (Re), ibid., at para 58
↑ Campbell (Re), 2018 ONCA 140 (CanLII), per Fairburn JA, at para 64
↑ Campbell, ibid., at para 67(notice is required "where the change in liberty status clearly deviates from the NCR accused’s liberty norm must the hospital notify the Board. The change in liberty status must be so significant that a reasonable person, considering all of the circumstances, would think that the Board should be called on to consider whether the hospital properly applied the least onerous and least restrictive test ahead of the next annual review.")

Warrant of Committal

Warrant of committal

672.57 Where the court or Review Board makes a disposition under paragraph 672.54(c) [order of detention to a hospital], it shall issue a warrant of committal of the accused, which may be in Form 49 [forms].
1991, c. 43, s. 4.
[annotation(s) added]

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Note up: 672.57

Treatment Disposition

Treatment disposition

672.58 Where a verdict of unfit to stand trial is rendered and the court has not made a disposition under section 672.54 [available dispositions] in respect of an accused, the court may, on application by the prosecutor, by order, direct that treatment of the accused be carried out for a specified period not exceeding sixty days, subject to such conditions as the court considers appropriate and, where the accused is not detained in custody, direct that the accused submit to that treatment by the person or at the hospital specified.
1991, c. 43, s. 4.
[annotation(s) added]

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Note up: 672.58

Criteria for disposition

672.59 (1) No disposition may be made under section 672.58 [treatment disposition] unless the court is satisfied, on the basis of the testimony of a medical practitioner, that a specific treatment should be administered to the accused for the purpose of making the accused fit to stand trial.

Evidence required

(2) The testimony required by the court for the purposes of subsection (1) [criteria for disposition for treatment re fitness] shall include a statement that the medical practitioner has made an assessment of the accused and is of the opinion, based on the grounds specified, that

(a) the accused, at the time of the assessment, was unfit to stand trial;

(b) the psychiatric treatment and any other related medical treatment specified by the medical practitioner will likely make the accused fit to stand trial within a period not exceeding sixty days and that without that treatment the accused is likely to remain unfit to stand trial;

(c) the risk of harm to the accused from the psychiatric and other related medical treatment specified is not disproportionate to the benefit anticipated to be derived from it; and

(d) the psychiatric and other related medical treatment specified is the least restrictive and least intrusive treatment that could, in the circumstances, be specified for the purpose referred to in subsection (1) [criteria for disposition for treatment re fitness], considering the opinions referred to in paragraphs (b) and (c).

1991, c. 43, s. 4.
[annotation(s) added]

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Note up: 672.59 (1) and (2)

Notice

Notice required

672.6 (1) The court shall not make a disposition under section 672.58 [treatment disposition] unless the prosecutor notifies the accused, in writing and as soon as practicable, of the application.

Challenge by accused

(2) On receiving the notice referred to in subsection (1) [notice required before treatment order permitted], the accused may challenge the application and adduce evidence for that purpose.
1991, c. 43, s. 4; 1997, c. 18, s. 87.
[annotation(s) added]

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Note up: 672.6 (1) and (2)

No Lobotomies or Electro-shock

Exception

672.61 (1) The court shall not direct, and no disposition made under section 672.58 [treatment disposition] shall include, the performance of psychosurgery or electro-convulsive therapy or any other prohibited treatment that is prescribed.

Definitions

(2) In this section,
"electro-convulsive therapy" means a procedure for the treatment of certain mental disorders that induces, by electrical stimulation of the brain, a series of generalized convulsions; (sismothérapie)
"psychosurgery" means any procedure that by direct or indirect access to the brain removes, destroys or interrupts the continuity of histologically normal brain tissue, or inserts indwelling electrodes for pulsed electrical stimulation for the purpose of altering behaviour or treating psychiatric illness, but does not include neurological procedures used to diagnose or treat intractable physical pain, organic brain conditions, or epilepsy, where any of those conditions is clearly demonstrable. (psychochirurgie)
1991, c. 43, s. 4.
[annotation(s) added]

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Note up: 672.61 (1) and (2)

Hospital Must Agree to Treatement

Consent of hospital required for treatment

672.62 (1) No court shall make a disposition under section 672.58 [treatment disposition] without the consent of

(a) the person in charge of the hospital where the accused is to be treated; or

(b) the person to whom responsibility for the treatment of the accused is assigned by the court.

Consent of accused not required for treatment

(2) The court may direct that treatment of an accused be carried out pursuant to a disposition made under section 672.58 [treatment disposition] without the consent of the accused or a person who, according to the laws of the province where the disposition is made, is authorized to consent for the accused.
1991, c. 43, s. 4.
[annotation(s) added]

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Note up: 672.62 (1) and (2)

Date of Disposition

Effective date of disposition

672.63 A disposition shall come into force on the day on which it is made or on any later day that the court or Review Board specifies in it, and shall remain in force until the Review Board holds a hearing to review the disposition and makes another disposition.
1991, c. 43, s. 4; 2005, c. 22, s. 23.

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Note up: 672.63

Custody

Continued detention in hospital

672.49 (1) In a disposition made pursuant to section 672.47 [disposition hearing where court does not] the Review Board or chairperson may require the accused to continue to be detained in a hospital until the court determines whether the accused is fit to stand trial, if the Review Board or chairperson has reasonable grounds to believe that the accused would become unfit to stand trial if released.

Copy of disposition to be sent to court

(2) The Review Board or chairperson shall send a copy of a disposition made pursuant to section 672.47 [disposition hearing where court does not] without delay to the court having jurisdiction over the accused and to the Attorney General of the province where the accused is to be tried.
1991, c. 43, s. 4.

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Note up: 672.49 (1) and (2)

Stay of Proceedings

Stay of Proceedings

Recommendation by Review Board

672.851 (1) The Review Board may, of its own motion, make a recommendation to the court that has jurisdiction in respect of the offence charged against an accused found unfit to stand trial to hold an inquiry to determine whether a stay of proceedings should be ordered if

(a) the Review Board has held a hearing under section 672.81 [mandatory 12 month review of dispositions] or 672.82 [discretionary review of dispositions] in respect of the accused; and

(b) on the basis of any relevant information, including disposition information within the meaning of subsection 672.51(1) [definition of disposition information] and an assessment report made under an assessment ordered under paragraph 672.121(a) [review board may order assessment – make recommendations], the Review Board is of the opinion that
(i) the accused remains unfit to stand trial and is not likely to ever become fit to stand trial, and

(ii) the accused does not pose a significant threat to the safety of the public.

Notice

(2) If the Review Board makes a recommendation to the court to hold an inquiry, the Review Board shall provide notice to the accused, the prosecutor and any party who, in the opinion of the Review Board, has a substantial interest in protecting the interests of the accused.

Inquiry

(3) As soon as practicable after receiving the recommendation referred to in subsection (1) [recommendation by review board – requirements], the court may hold an inquiry to determine whether a stay of proceedings should be ordered.

Court may act on own motion

(4) A court may, of its own motion, conduct an inquiry to determine whether a stay of proceedings should be ordered if the court is of the opinion, on the basis of any relevant information, that

(a) the accused remains unfit to stand trial and is not likely to ever become fit to stand trial; and

(b) the accused does not pose a significant threat to the safety of the public.

Assessment order

(5) If the court holds an inquiry under subsection (3) [recommendation by review board – inquiry of recommendation by court] or (4) [recommendation by review board – inquiry of recommendation by court – grounds], it shall order an assessment of the accused.

Application

(6) Section 672.51 [issuing disposition] applies to an inquiry of the court under this section.

Stay

(7) The court may, on completion of an inquiry under this section, order a stay of proceedings if it is satisfied

(a) on the basis of clear information, that the accused remains unfit to stand trial and is not likely to ever become fit to stand trial;

(b) that the accused does not pose a significant threat to the safety of the public; and

(c) that a stay is in the interests of the proper administration of justice.

Proper administration of justice

(8) In order to determine whether a stay of proceedings is in the interests of the proper administration of justice, the court shall consider any submissions of the prosecutor, the accused and all other parties and the following factors:

(a) the nature and seriousness of the alleged offence;

(b) the salutary and deleterious effects of the order for a stay of proceedings, including any effect on public confidence in the administration of justice;

(c) the time that has elapsed since the commission of the alleged offence and whether an inquiry has been held under section 672.33 [review of prima facie case] to decide whether sufficient evidence can be adduced to put the accused on trial; and

(d) any other factor that the court considers relevant.

Effect of stay

(9) If a stay of proceedings is ordered by the court, any disposition made in respect of the accused ceases to have effect. If a stay of proceedings is not ordered, the finding of unfit to stand trial and any disposition made in respect of the accused remain in force, until the Review Board holds a disposition hearing and makes a disposition in respect of the accused under section 672.83 [disposition by Review Board].
2005, c. 22, s. 33.
[annotation(s) added]

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Note up: 672.851 (1), (2), (3), (4), (5), (6), (7), (8), and (9)

Appeal

672.852 (1) The Court of Appeal may allow an appeal against an order made under subsection 672.851(7) [recommendation by review board – judicial stay] for a stay of proceedings, if the Court of Appeal is of the opinion that the order is unreasonable or cannot be supported by the evidence.

Effect

(2) If the Court of Appeal allows the appeal, it may set aside the order for a stay of proceedings and restore the finding that the accused is unfit to stand trial and the disposition made in respect of the accused.
2005, c. 22, s. 33.
[annotation(s) added]

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Note up: 672.852 (1) and (2)

Topics

[1] R v Paré, 2001 CanLII 19270 (ON CA), per curiam (3:0)

[2] Winko v British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 SCR 625, per McLachlin J, at para 49

[3] Winko, ibid., at para 49 ("There must be evidence of a significant risk to the public before the court or Review Board can restrict the NCR accused’s liberty.")

[4] Winko, ibid., at para 62.3
R v Rackel, 2019 ABCA 170 (CanLII), per curiam, at para 6

[5] Rackel, supra, at para 6
Winko, supra, at paras 62.2, 62.3

[6] Rackel, supra, at para 6

[7] Rackel, supra, at para 6
Winko, supra, at paras 43, 62.9

[8] Rackel, supra, at para 6

[9] R v Conway, 2010 SCC 22 (CanLII), per Abella J, at para 95

[10] Ohenhen (Re), 2018 ONCA 65 (CanLII), per Tulloch JA, at para 57

[11] Ohenhen (Re), ibid., at para 58

[12] Campbell (Re), 2018 ONCA 140 (CanLII), per Fairburn JA, at para 64

[13] Campbell, ibid., at para 67(notice is required "where the change in liberty status clearly deviates from the NCR accused’s liberty norm must the hospital notify the Board. The change in liberty status must be so significant that a reasonable person, considering all of the circumstances, would think that the Board should be called on to consider whether the hospital properly applied the least onerous and least restrictive test ahead of the next annual review.")

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