Overview & Background | Membership | Hearing Schedules | Rules of Practice | Disposition
Criminal law is a matter of federal jurisdiction pursuant to subsection 91(27) of the Constitution Act, 1867. Part XX.1 of the federal Criminal Code addresses how persons who suffer from a mental disorder are dealt with in the criminal justice system and the Review Board system that is charged with making or reviewing dispositions concerning any accused found not criminally responsible by reason of mental disorder (“NCR”) or unfit to stand trial (“UST”).
Section 2 of the Criminal Code defines “mental disorder” as a disease of the mind. Subject to the legal requirements set out in the Criminal Code, an accused person may be found by a court to be NCR or UST.
In order to be found guilty of an offence, an accused person has to have the capacity to appreciate and understand that their behaviour was wrong. Section 16 of the Criminal Code states:
No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.
Persons found to be NCR by a court are directed to a provincial or territorial Review Board established under Section 672.38 of the Criminal Code.
For accused found to be NCR, under section 672.54 of the Criminal Code there are three dispositions available to a court or Review Board:
Section 672.54 of the Criminal Code requires that the Review Board make a disposition that is the least onerous and least restrictive to the accused considering the following factors:
If an accused person who suffers from a mental disorder is not able to take part in the legal proceedings, they may be determined UST. Section 2 of the Criminal Code defines UST as:
“unfit to stand trial” means unable on account of mental disorder to conduct a defence at any stage of the proceedings before a verdict is rendered or to instruct counsel to do so, and, in particular, unable on account of mental disorder to
Accused persons found UST by a court are also directed to a provincial or territorial Review Board established under Section 672.38 of the Criminal Code.
The dispositions available for an accused found UST are:
It is not an option for a Review Board to order an absolute discharge for a person found UST, and, as a result, those found UST remain under the jurisdiction of the Review Board until the accused is deemed fit to stand trial or until the charges are stayed or withdrawn.
Each province and territory must establish a Review Board under Section 672.38 of the Criminal Code. Review Boards must have no less than 5 members, who are appointed by the Governor in Council of each province and territory. Each Review Board must have at least one member who is practicing psychiatry in the province/territory and the chairperson of the Board must be a judge or a person who is qualified to be a judge. Review Boards are expert tribunals that make and review dispositions concerning any accused that has been found NCR or UST.
Review Boards must follow the processes and requirements set out in the Criminal Code. The Criminal Code does not establish Rules of Practice; however it does allow either the Federal or Provincial/Territorial governments to make rules and procedures. With the approval of the lieutenant governor in council of Nova Scotia, and pursuant to clause 672.44 (1) of the Criminal Code, the Nova Scotia Review Board introduced Rules of Practice in October 2013.
A court can make an Assessment Order at any time to assess the mental condition of an accused. If a person is determined to be NCR or UST, the court can either make a disposition at that time and refer the matter to the Review Board for monitoring, or send the matter to the provincial/territorial Review Board for a disposition.
Once a person is found NCR or UST, the Review Board must have a disposition hearing within 45 days, unless the person has been released into the community on a conditional discharge by the court, in which case a disposition hearing must be held by the Review Board within 90 days. Parties to a Review Board proceeding normally include the accused and defence counsel, the Crown, and the hospital responsible for the person’s treatment.
Once a disposition has been made for those found NCR or UST, Section 672.72 of the Criminal Code creates a right of appeal of a Review Board decision for any party on questions of law, fact, or mixed fact and law to the court of appeal of the province. This must be filed within 15 days of the disposition decision.
The Review Board must conduct a review hearing every 12 months after making a disposition other than an absolute discharge. This takes place every year for as long as the person is subject to the jurisdiction of the Review Board, to review any disposition that has been made in respect of an accused, and modify the disposition or conditions if warranted. The Review Board may conduct a review hearing at any time on its own motion, or at the request of the accused or any other party.
A review hearing must also be held if requested by the hospital, if the person in charge of the hospital has increased the restrictions on the liberty of the accused for longer than seven days. The Review Board must also conduct a hearing if an accused person has failed to comply with the disposition or a condition of the disposition (breach hearing).
If a person receives a conditional discharge or is detained in hospital, Section 672.56 of the Criminal Code authorizes the Review Board to delegate to the person in charge of the hospital the 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 the Review Board disposition. Any direction made by the person in charge of the hospital is deemed to be a disposition made by the
If a restriction on the liberty of the accused by the person in charge of the hospital lasts for more than seven days, notice must be given to the Review Board.