Response to the 14th Report of the Standing Committee on Justice and Human Rights

Review of the Mental Disorder Provisions of the Criminal Code

November 2002

COURT AND REVIEW BOARD POWERS

Fitness to be Sentenced

RECOMMENDATION 4

The Committee recommends that the definition of "unfit to stand trial" in section 2 of the Criminal Code be amended by adding the words "and to be sentenced" to the title and the words "or sentence imposed" after the words "verdict is rendered" in the definition itself. As well, section 672.11(a) of the Code should be amended to allow the court to order an assessment in such cases. Finally, subsection 672.38(1) of the Code should be amended to give the Review Board jurisdiction in such cases.

COMMENTS

The Committee's recommendation is in essence three separate but related recommendations which must each be carefully considered. The Committee has proposed a new concept – fitness to be sentenced. They have also proposed that assessments be permitted at sentencing. In addition, they propose that the Review Board should assume jurisdiction over this new category of offender.

In the Government's view, the Committee's recommendation that the definition of "unfit to stand trial" in section 2 be expanded to include "unfit to be sentenced" and that complementary amendments be made to permit an assessment to determine fitness to be sentenced requires a great deal more consideration and consultation.

The Committee suggests that there is a "gap" in the present law, and proposes a remedy. However, the perceived gap cannot be addressed simply by adding words to the existing provisions without careful analysis of the rationale for the current assessment provisions, the scope and application of Part XX.1, the purposes and principles of sentencing, and the cost and operational implications of any reforms to include a requirement of fitness to be sentenced.

Those accused who have been found fit to stand trial and found criminally responsible and convicted but who become "unfit" in the sense that their mental condition deteriorates to the extent that they do not appreciate the purposes or consequences of the sentencing hearing will represent a minority of offenders. The notion of "fitness to be sentenced" is a new concept not currently recognized by our law. The Criminal Code sets out the purposes and principles of sentencing and prescribes maximum penalties for specific offences. There is considerable flexibility in our law to ensure that the sentence respects the purposes and principles of sentencing. An offender who may be "unfit to be sentenced" is not in the same category as an accused who is unfit to stand trial or not criminally responsible, and cannot therefore be subject to the Part XX.1 regime. A careful analysis of the meaning of "unfit to be sentenced" is necessary, along with consideration of the consequences of such a finding.

The related issue of assessment to assist courts in making an appropriate sentence, perhaps with a therapeutic or treatment objective, also requires careful consideration. Currently, courts have a limited ability to conduct assessments for the purpose of sentencing. The issue is broader than the offender's "fitness"; in essence, it concerns the appropriate sentence given the mental condition of the accused. Criminal Code amendments to permit a court to order an assessment for sentencing would have major cost and resource implications for provinces and territories. The criteria or considerations justifying an assessment order must be limited to prevent assessments being ordered in all cases. While it is recognized that many offenders may be suffering from mental illnesses or organic brain damage which will be relevant to the effect of the sentence and their future behaviour, the issue of sentencing assessments should be thoroughly canvassed with provincial and territorial officials through the Federal-Provincial-Territorial Working Group on Sentencing and the Federal-Provincial-Territorial Working Group on Mental Disorder.

As explained above in relation to Recommendation 3, sections 672.22 to 672.33 set out the presumption of fitness and the procedure for determining unfitness, as well as the roles and responsibilities of the Review Board and the Crown.

An accused is presumed fit to stand trial unless the court is satisfied on a balance of probabilities that the accused is unfit to stand trial.

Section 2 of the Code defines "unfit to stand trial" as:

unable on account of mental disorder to conduct a defence at any stage of the proceedings before verdict is rendered or to instruct counsel to do so and, in particular, unable on account of mental disorder to

  • understand the nature or object of the proceedings,
  • understand the possible consequences of the proceedings, or
  • communicate with counsel.

Where fitness is an issue, it is the accused's capacity at the time of trial that is in question. Section 672.23 provides that the court may address the issue of fitness, on its own motion or on application of the accused or prosecutor at any stage of the proceedings before a verdict is rendered, if it has "reasonable grounds … to believe that the accused is unfit to stand trial". The burden of proof is on the party raising the issue.

As indicated in the response to Recommendation 3, where a verdict of unfit to stand trial is rendered, the court may direct that treatment of the accused be carried out for the purpose of making the accused fit to stand trial for a specified period not to exceed 60 days.

Where a person is found to be unfit to stand trial, any plea that has been taken is set aside. The court must hold an inquiry not later than two years after the verdict of unfitness was rendered and every two years thereafter until the accused is acquitted or tried, to decide whether there is sufficient evidence to put the accused on trial. The burden of proving that there is sufficient evidence to put the accused on trial is on the prosecution and if it fails to satisfy the court, the court shall enter an acquittal. The Review Board will also hold annual or more frequent hearings to review the disposition in respect of a person found unfit to stand trial and where they determine that the accused is fit they are required to order the accused be sent back to court for a trial of the issue of fitness.

With respect to assessments of the mental condition of an accused, section 672.11 governs when and for what purposes such assessments may be ordered.

Section 672.11 provides that:

a court having jurisdiction over an accused in respect of an offence may order an assessment of the mental condition of the accused, if it has reasonable grounds to believe that such evidence is necessary to determine

  1. whether the accused is unfit to stand trial;
  2. whether the accused was, at the time of the commission of the alleged offence, suffering from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection 16 (l);
  3. whether the balance of the mind of the accused was disturbed at the time of the commission of the alleged offence where the accused is a female person charged with an offence arising out of the death of her newly-born child;
  4. the appropriate disposition to be made, where a verdict of not criminally responsible on account of mental disorder or unfit to stand trial has been rendered in respect of the accused; or
  5. whether an order should be made under subsection 747.1 (l) to detain the accused in a treatment facility, where the accused has been convicted of the offence.

Section 672.11 does not permit assessment of an offender's mental condition for the purpose of determining sentence.

The court may order an assessment at any stage of the proceedings, on its own motion or on application of the accused or the prosecutor. However, the prosecutor may request an assessment regarding criminal responsibility only where the accused has put mental capacity into issue or the prosecutor satisfies the court that there are reasonable grounds to doubt the accused is criminally responsible on account of mental disorder.

Assessment orders must specify who is to conduct the assessment, or the hospital where it is to be conducted, whether the accused will be detained for the assessment, and the period that the order is in force. The assessment order may not direct any treatment.

The Committee's recommendation to address the issue of "fitness to be sentenced" stems from the submissions of witnesses with valuable experience dealing with offenders suffering from mental disorders. While the Government is aware that many convicted offenders may have serious mental health problems, a distinction is made in our criminal law between those found unfit or not criminally responsible and those convicted i.e. criminally responsible. Part XX.1 governs the unfit and not criminally responsible. It is not a gap, in the sense of an oversight, that the assessment provisions are tailored to the issues of unfitness to stand trial, criminal responsibility and the disposition for an accused found unfit or not criminally responsible.

The final part of the Committee's recommendation is that convicted offenders found "unfit to be sentenced" would be placed under the jurisdiction of the Review Board. As indicated above, the Government does not think this proposed solution is feasible. The Review Board assumes responsibility for an unfit accused (not yet prosecuted) and for accused persons found not criminally responsible on account of mental disorder. The powers of Review Boards and the applicable procedural provisions set out in Part XX.1 are tailored to this group and not to convicted offenders. For example, the disposition-making powers that include an absolute discharge and conditional discharge, which cannot require treatment, would be inappropriate for a convicted offender who is "unfit" to be sentenced. Moreover, the interpretation of the disposition-making power of courts and Review Boards requires that an absolute discharge be ordered unless the accused poses a significant threat to public safety. Such a discharge would usurp the ultimate role of the sentencing court. Other significant reforms would be required if the concept of fitness to be sentenced is recognized and if the Review Board's jurisdiction is expanded. For example, the nature of the review hearing, the transfer provisions, appeal provisions and enforcement provisions would have to be carefully reviewed and modified to address a new category of offender with very different characteristics.

In summary, the issues raised by all three parts of the Committee's recommendations related to fitness at the time of sentencing are complex and worthy of more thorough consideration. The Government proposes that the Minister of Justice explore these issues with provincial and territorial Attorneys General and through joint consultation with the Federal-Provincial-Territorial Working Groups on Sentencing and Mental Disorder.

Permanently Unfit Accused

RECOMMENDATION 5

The Committee recommends that section 672.54 of the Criminal Code be amended to allow the courts to absolutely discharge a permanently unfit accused either on its own volition or following the recommendation of a Review Board.

COMMENTS

The Government is aware of the concerns expressed by the witnesses who appeared before the Committee, including Review Boards and mental health system professionals, regarding the potential for a person found unfit to stand trial to remain under the supervision of the Review Board and criminal law for long periods of time. The concerns are heightened where the accused is unfit with little prospect of becoming fit, because no treatment is available. In addition, when the offence which brings the person into the criminal justice system is less serious, reliance on the system may seem inappropriate.

However, the regime in the Code governing fitness must be flexible enough to address situations where the accused commits a minor offence yet poses a significant threat. It cannot be assumed that the predicate offence is an indicator of future behaviour.

Currently the Review Board cannot absolutely discharge an unfit person where there is no significant threat. While some witnesses advocate for an expansion of the Review Board's authority to discharge an unfit accused, several factors must be taken into account:

  1. It is the Crown's responsibility to prosecute, to stay or to withdraw charges.
  2. The Review Board can order a conditional disposition permitting the accused to live in the community with very little supervision, where appropriate.
  3. The Review Board may, at a disposition or review hearing, determine whether, in its opinion, the accused is fit to stand trial; and if so, the Board shall order the accused to be sent back to court.
  4. The Crown is required to bring a prima facie case against the accused every two years. This is an inquiry to determine whether there is sufficient evidence to put the accused on trial. If the Crown is unable to do so, the accused will be acquitted.

It should be noted that the Code includes many safeguards for an accused found unfit to stand trial. Although the court or Review Board cannot order an absolute discharge for an unfit accused, section 672.54 sets out the governing principles for the appropriate disposition, which must be the least onerous and least restrictive having regard to the stated criteria. The Review Board may, where appropriate, order a conditional disposition, permitting the unfit accused to live in the community. There is therefore no risk that an unfit accused will be forgotten in the system.

Despite these provisions, the Government acknowledges that some unfit accused may never be fit to stand trial, and the ongoing supervision by the Review Board and outstanding criminal charges may not be necessary in the public interest or in the interest of the accused. As the Government proposes to repeal the capping provisions, it is essential that the situation of the long-term unfit accused be addressed.

The Government will, therefore, propose amendments to address the situation of the long-term unfit accused. The Review Board should have a statutory mechanism to order that the accused be returned to court where they are satisfied that

  • (1) the accused is a long-term unfit person with no reasonable expectation that they will become fit, and

  • (2) the accused does not pose a significant threat (Winko interpretation) to the safety of the public.

At the court hearing, the Crown would have the opportunity to demonstrate whether evidence is available to prosecute the accused, if and when fit, in a manner similar to the prima facie case required to be made every two years, and make submissions about the public interest in prosecuting the accused and about the risk posed by the accused. The court should also consider the length of time the accused has been under the supervision of the Review Board. The court would then determine whether a judicial stay of proceedings should be ordered.

As the Standing Committee noted in its report, some witnesses called for the Review Board to have the power to enter an absolute discharge. The Government agrees with the Standing Committee that it would be inappropriate to permit the Review Boards to absolutely discharge an unfit accused. The public interest requires that this decision, along with other final determinations of an accused's status, should ultimately be made by a court.

The Government will table specific amendments to the Criminal Code to permit the Review Board to make a recommendation to the court that the status of the unfit accused be addressed, and to ensure that the court has before it all the evidence it needs to balance the interests of the accused and the public.

Victim Participation – Notification of Rights

RECOMMENDATION 6

The Committee recommends that subsection 672.5(5) of the Criminal Code be amended to require a court or Review Board conducting a hearing to so notify a victim, if an interest in being notified is given by that person. As well, the Code should be amended to require that victims be notified of their rights and entitlements.

COMMENTS

As the Committee notes, the federal government has taken significant measures within areas of federal jurisdiction to improve the experience of victims of crime in the criminal justice system. For example, amendments to the Criminal Code in 1988 introduced the notion of the victim impact statement as a mechanism for victims of crime to describe the harm or loss suffered because of the crime. Publication bans to protect the identity of sexual assault victims were also enacted in 1988. Subsequent amendments to the Criminal Code over the last 15 years have enhanced the role of victims of crime while respecting the rights of accused persons. In response to the 1998 report of the Standing Committee on Justice and Human Rights, Victims' Rights, A Voice Not A Veto, the Government enacted a package of reforms to the Criminal Code in 1999 to, among other things, ensure that victims were made aware of the opportunity to submit a victim impact statement; ensure that the safety of the victim was considered in judicial interim release decisions; fix the amount and clarify the automatic imposition of a victim surcharge; and, allow judges a discretion to order a publication ban on the identity of any victim or witness where necessary for the proper administration of justice.

The 1999 amendments also provided for a victim impact statement to be prepared and submitted to the court or Review Board at a disposition hearing (s. 672.541) for an accused found not criminally responsible on account of mental disorder. The court or Review Board is required to consider the statement in determining the appropriate disposition or conditions of a disposition "to the extent the statement is relevant to its consideration of the criteria set out in section 672.54."

The victim impact statement is provided for in subsection 672.5(14), which states:

A victim of the offence may prepare and file with the court or Review Board a written statement describing the harm done to, or loss suffered by, the victim arising from the commission of the offence.

A copy of the statement must be provided to the accused or his or her counsel and the prosecutor.

Comparison with provisions of the Corrections and Conditional Release Act, which ensure notice to victims of essential dates, etc. are useful examples, but it must be remembered that the administration of the Corrections and Conditional Release Act is a solely federal responsibility whereas the criminal justice system, including the administration of Part XX.1 of the Criminal Code governing persons found not criminally responsible on account of mental disorder or unfit, is a shared, federal and provincial/territorial responsibility.

There are both similarities and differences between victim impact statements at sentencing (for convicted offenders) and at the initial disposition hearing for accused persons found not criminally responsible on account of mental disorder. Providing victims with an opportunity to prepare and submit a victim impact statement where the accused is found not criminally responsible on account of mental disorder recognizes that the impact of the crime upon them is the same regardless of the accused's mental disorder.

However, the accused found not criminally responsible on account of mental disorder is not held accountable for his or her conduct, and the appropriate disposition (s. 672.54) must take into account several factors, including the need to protect the public, the mental condition of the accused, and the reintegration of the accused into society. The impact of the crime on the victim may be relevant only to some of the criteria. Where the court or Review Board is considering a conditional discharge, the victim's statement may be relevant to the crafting of particular conditions – for example, that the accused not contact the victim or that the accused not go to certain places.

The victim impact statement provisions applicable to convicted offenders (s. 722) require the statement to be prepared in accordance with a program designated by the Lieutenant Governor-in-Council of the province.

The victim impact statement provided for in subsection 672.5(14) does not refer to the designated program, so there is some latitude about the form and procedure.

It should be noted again that the administration of justice is a matter of provincial responsibility. The provision of victim services, as part of the administration of justice, is also a matter of provincial responsibility. The provision of victim impact statement forms, assistance in preparing the statements and the collection and submission of the statements to the Crown or the court are generally handled by the provinces' victim services program, whether police-based, court-based or community-based. Victim services are essential services but they are overburdened, and therefore further amendments that may increase the burden on victim services must be preceded by consultation with the provinces and territories.

The Committee notes that if victims are to avail themselves of the opportunity to prepare and submit a victim impact statement, they must be informed of their right to do so and of the date of the disposition hearing

Amendments to the Criminal Code in 1999 imposed a requirement on the judge to inquire of the Crown, victim, or any person representing a victim whether the victim had been advised of the opportunity to prepare a statement. The judge may adjourn the sentence hearing to permit the victim to prepare a victim impact statement.

The amendment has been both praised by victims and criticized by Crown and victim services which have had to increase their efforts to inform all victims about victim impact statements. While there is a wide agreement that victims require this information in a timely manner, available victim services are overburdened and in some cases, more direct services to victims of serious personal violence offences take priority over informing every victim of every offence about the opportunity to prepare a victim impact statement. Other ways of informing victims about victim impact statements include pamphlets, posters, and provision by police of the forms at first contact.

The Committee's recommendation that courts or Review Boards conducting a review hearing notify the victim where the victim has indicated interest in receiving such notification may not be feasible. It should be noted that after the initial disposition, a review hearing will be held at least every 12 months. Review Board administration varies from jurisdiction to jurisdiction, and their capacity to advise victims of the dates of Review Board hearings, locations, adjournments and outcomes will vary. While a similar provision to section 722.2 could be crafted to require a court conducting a disposition hearing pursuant to section 672.45 or a Review Board conducting the initial disposition hearing pursuant to section 672.47 to inquire of the Crown or the victim whether the victim has been advised of the opportunity to prepare a statement, other non-legislative initiatives are required to inform victims of crime about the provisions of the Code which apply to them and about relevant dates of proceedings, the terms of a disposition and other essential information. The Department of Justice has prepared several fact sheets and a Victim's Guide to the Criminal Justice System. Additional fact sheets, focussing on the victim's role where an accused is found not criminally responsible on account of mental disorder, will be developed to provide general information. However, case-specific information can only be provided by the Crown or Review Board.

Provincial and territorial victim services may also be encouraged to develop additional public legal education materials focussing on assistance and services available to victims, and particularly on the assistance and support which may be available to victims at Review Board proceedings.

While the Government continues to support all initiatives to enhance the role of victims in the criminal justice system, it would be premature to place the onus on Review Boards to notify victims of all hearings without first canvassing provincial colleagues, who are responsible for the administration of justice and the delivery of victim services and Review Boards to determine if and how this can be accomplished in a manner consistent with the services and assistance offered to victims of crime in general.

The Government will pursue a Criminal Code amendment similar to section 722.2 to require the Review Board to inquire whether the victim has been advised of the opportunity to prepare a victim impact statement for the initial disposition hearing and to permit an adjournment for this purpose.

Publication Bans to Protect Third Party (Victim) Privacy Interests

RECOMMENDATION 7

The Committee recommends that subsection 672.51(7) and (11) of the Criminal Code be amended to allow the court or Review Board conducting a disposition hearing to issue a publication ban for the benefit of third parties.

COMMENTS

The Committee notes that the Review Board has the power, under sub- section 672.51(11), to prohibit publication of any part of the record of the proceedings where the accused was excluded or any disposition information that is prohibited from being disclosed (i.e. under subsection 672.5(3), where disclosure would be likely to endanger the life or safety of another person or would seriously impair the treatment or recovery of the accused, or under subsection 672.5(5), where disclosure is not necessary to the proceedings and may be prejudicial to the accused and under paragraph 672.5(7)(b) where the court or Review Board is of the opinion that disclosure would be seriously prejudicial to the accused and where, in the circumstances, protection takes precedence over the public interest in disclosure).

The Committee notes that privacy interests of parties other than the accused may be at stake in Review Board proceedings, yet there is no authority for a Review Board to make an order prohibiting the publication or broadcast of the identity of such third parties (e.g., victims or witnesses) or other prejudicial information.

Amendments made to the Criminal Code in 1999, in response to the report of the Standing Committee on Justice and Human Rights, Victims' Rights, A Voice Not A Veto, included a discretionary publication ban provision to permit a judge to make an order that the identity of a victim or witness, or information that could disclose their identity, not be published in any document or broadcast in any way, "if the judge is satisfied that the order is necessary for the proper administration of justice." The factors the judge must consider in making the determination are set out in the provisions. The factors closely mirror the prevailing common law governing publication bans established by the Supreme Court of Canada which emphasizes the need to ensure the Charter rights of all affected parties are protected and balanced.

Subsections 486(4.1) to (4.9) set out the law and procedure, which apply to discretionary publication bans on identity.

The Criminal Code also provides for a ban on the identity of a sexual assault victim in subsection 486(3). While such a ban will usually be made at the opening of the trial or preliminary inquiry or at the accused's first appearance and continue to protect the identity of the victim, the Review Board should have a similar authority to ensure protection for sexual assault victims.

The Government agrees that Review Boards should have the same power as the court to protect the identity of victims and witnesses in appropriate circumstances.

Amendments to the Code to include provisions similar to subsections 486(3) and (3.1) and 486(4.1) in Part XX.1 to permit the Review Board to order a publication ban on the identity of a victim or other third party will be pursued. However, broader powers (e.g. to prohibit publication of other information) may not conform with the prevailing common law, which requires a careful balancing of competing Charter rights; further consideration of this issue is required.

Oral Presentation of Victim Impact Statement

RECOMMENDATION 8

The Committee recommends that section 672.541 of the Criminal Code be amended to allow for the oral or other form of presentation of Victim Impact Statements at disposition hearings held by the court or Review Board.

COMMENTS

The Committee notes that the 1999 reforms to the Criminal Code clarified the victim's right to present (i.e. read aloud) the victim impact statement prepared in accordance with section 722 at the time the offender is sentenced. The victim is entitled to read the written statement that has been prepared in advance in the form and procedure established by the designated program in the province/territory. The Code also requires that a copy of the written statement be provided to the accused or counsel for the accused and the Crown. The oral presentation is therefore not a spontaneous statement, nor is it a reaction to other submissions or evidence presented at sentencing. The victim impact statement is a thoughtful and carefully prepared description of the harm or loss suffered by the victim as a result of the offence.

The Criminal Code (s. 722.21) also provides that the victim can present the statement in any other manner that the court considers appropriate. Where, for example, the victim wishes to send an audiotape or requests that another person read the victim impact statement, the court will determine whether it will accept the statement in this manner.

There is no obligation on a victim to prepare and submit a victim impact statement or to present a statement. Where a written victim impact statement is submitted, the Code requires it to be read and considered by the judge, whether or not the statement is read by the victim or presented by the victim in another manner.

The National Parole Board adopted a policy in July 2001 to permit victims to present the written victim impact statement orally at Parole Board hearings. Again, the statement must first be prepared in writing and a copy provided to the offender. The victim may present the statement at the beginning of the hearing or at the end of the hearing. Where the victim does not chose to attend and present the statement, the written statement will be considered by the Parole Board.

The Committee has recommended that where an accused is found not criminally responsible on account of mental disorder the victim should be entitled to present, orally or otherwise, a victim impact statement to the Review Board. In their narrative, though, the Committee notes that the statement should be limited to the risk posed by the accused; i.e. the victim's statement should address safety concerns and release conditions to address these concerns.

The Government agrees that similar rights for victims should be offered whether the accused is convicted or found not criminally responsible on account of mental disorder, but that modifications are necessary to acknowledge that an accused found not criminally responsible on account of mental disorder has unique needs that must be considered and is not held responsible or punished. It should be noted that, as described above, the Code currently provides for victim impact statements to be considered by the court or Review Board in making a disposition.

The Government proposes to amend the Criminal Code to permit the victim to read or present the statement provided for in subsection 672.5(14) on the request of the victim. The court or Review Board would have the discretion to deny a request for oral or other presentation where it would not in the circumstances be in the interests of the proper administration of justice. For example, if the oral presentation may cause the accused to react and further traumatize the victim, it may not be appropriate.

It would not be consistent with the current Code provisions in subsection 672.5(14) to further limit the oral statement to safety concerns, although the court or Review Board would have the discretion to do so where circumstances warrant. As noted above, the court or Review Board is required, under section 672.541, to consider the statement only to the extent it is relevant to the criteria set out in section 674.54 for making the appropriate disposition (the need to protect the public, the mental condition of the accused, the reintegration of the accused into society and the other needs of the accused) and/or to the conditions to be imposed.

A word of caution is necessary with respect to the victim's attendance at Review Board hearings. As noted above, the accused's disposition will be reviewed by the Review Board at least every 12 months. Where the accused is under supervision or detained in custody in a hospital, the Review Board will generally hold the hearing where the accused resides. Victims may therefore incur expense and inconvenience to attend. Although the provinces are responsible for the administration of justice and the provision of victim services, the proposed Code amendment cannot impose additional cost burdens on provinces. While the Government intends to amend the Code to permit victims to present victim impact statements orally at Review Board hearings, the Government cannot offer financial assistance to help them participate.

Enforcement of Dispositions – Detention and Creation of Offence for Breach

RECOMMENDATION 9

The Committee recommends that sections 672.85 and 672.91 of the Criminal Code be amended to allow for interim temporary detention until appearance respectively before a disposition hearing or a justice as the case may be. The Committee further recommends that the Criminal Code be amended to establish an offence of failing to comply with a disposition order made by a court or Review Board.

COMMENTS

The Committee's recommendation and the witnesses' description of the problems and concerns raise two separate issues.

The first issue relates to the concerns expressed by Review Boards regarding compelling accused persons, particularly those not in custody, to attend Review Board hearings. Section 672.85 provides the Review Board with power to issue a summons or warrant, but the effectiveness of the provision has been criticized.

The Review Boards have noted that where an accused is not in custody, it may be necessary to detain him or her to ensure attendance at the disposition or review hearing. Where the verdict is rendered by the court but the court does not make a disposition, the Review Board is required to hold a review hearing within forty-five days. The accused may not attend, however, resulting in a warrant or summons being issued with further delays.

While the Government acknowledges that the accused's attendance at the disposition or review hearing is essential for the proper administration of the law, for the accused's treatment, and for public safety, caution must be exercised in moving forward with amendments which would permit the detention of the accused for the purpose of ensuring attendance. The Charter rights of the accused must be carefully considered.

As indicated above, the Government proposes both to pursue a package of amendments to the Code in the near future and to embark on additional consultations with provincial Attorneys General and other stakeholders to explore the need for further reforms. Amendments to clarify the Review Boards' power to compel attendance and detain the accused would benefit from this further consultation.

The second issue addressed in Recommendation 9 proposes the creation of a new offence for failing to comply with a disposition order.

Some evidence before the Committee suggested that Part XX.1 provides little ability to effectively compel the offender to follow court or Review Board disposition orders. Some witnesses held the view that a new offence is needed to ensure offenders understand the seriousness of complying with dispositions.

Other witnesses noted a need to clarify the provisions governing the arrest of an accused for breach of a disposition to provide the same options upon arrest as exist for other accused.

Neither the submissions to the Committee nor the testimony of witnesses demonstrated clear or strong support for the creation of a new offence. While Review Boards have good reason to advocate for reforms to ensure their orders are enforceable for both the benefit of the accused and public safety, the implications of the recommendation need further consideration.

A charge of breach of a condition of a disposition against an accused would bring him or her back before the court for a new criminal prosecution or additional assessments to determine fitness and/or criminal responsibility, and could result in significant delays.

Charging the accused with a new offence of breach of a disposition order could result in the accused being convicted (i.e. found criminally responsible) for the breach offence or being found again not criminally responsible on account of mental disorder for the breach offence. If convicted, the accused would both be subject to criminal sanctions for the breach and continue to be supervised as a not criminally responsible accused for the predicate offence.

The Code currently provides for "dual status offenders" in sections 672.67 to 672.71 to address situations where an offender is subject to a sentence of imprisonment in respect of one offence and a custodial disposition under Part XX.1 (not criminally responsible) for another offence. These provisions do not address the issue of breach of a disposition order, but they do highlight the complexity of the situation where the same person is subject to two differently focussed regimes.

It is necessary to consider whether charging a not criminally responsible accused with a new offence is an effective way to ensure compliance with a disposition order or whether it might be detrimental to their continued treatment and supervision.

The Government proposes that the Minister of Justice explore the issue of creating a new criminal offence for failure to comply with a disposition order in consultation with provincial Attorneys General and the Federal-Provincial-Territorial Working Group on Mental Disorder. The need for specific Criminal Code amendments will be reconsidered following these consultations.

The Government will, however, pursue amendments to clarify the provisions governing arrest for breach of a disposition to provide more guidance to the police and more consistency with Part XVI.

Date modified: