The Review Board Systems in Canada: An Overview of Results from the Mentally Disordered Accused Data Collection Study

1. Introduction

1. Introduction

Mental disorder, within the Canadian criminal justice system, is defined in the Criminal Code as a disease of the mind.[1] An individual charged with a criminal offence who has been found to suffer from a mental disorder by a mental health professional, however, is not necessarily exempt from criminal responsibility. Such a determination is based upon a strict legal test administered by a judge. Many accused who suffer from a mental disorder are therefore tried and convicted within the criminal justice system. In addition, an accused or counsel may decide that raising issues of mental illness during criminal proceedings may not even be in their best interests. Although it may avoid a criminal conviction, it can also lead to indeterminate involvement with the system responsible for managing mentally disordered accused. Thus, only a small group of accused actually raise the issue of mental illness and/or meet the legal threshold in Canada. These accused can be found not criminally responsible on account of mental disorder (NCRMD) or they can be found unfit to stand trial (UST).

1.1 Not Criminally Responsible on Account of Mental Disorder

…people who commit criminal acts under the influence of mental illnesses should not be held criminally responsible for their acts or omissions in the same way that sane responsible people are. No person should be convicted of a crime if he or she was legally insane at the time of the offence … Criminally responsibility is appropriate only where the actor is a discerning moral agent, capable of making choices between right and wrong.[2]

It is a fundamental principle of the Canadian criminal justice system that an accused must posses the capacity to understand that his or her behaviour was wrong in order to be found guilty of an offence. According to section 16 of the Criminal Code:

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.[3]

While an accused found not criminally responsible on account of mental disorder by a court is not convicted in the usual sense, the verdict does not constitute an acquittal; it represents a unique third option. An accused that is found NCRMD is diverted to a provincial or territorial Review Board established pursuant to section 672.38 of the Criminal Code. Review Boards are specialized tribunals chaired by a judge, or an individual qualified for a judicial appointment, and comprised of at least four other members, one of which must be entitled under the laws of the particular province to practice psychiatry.

The rationale for this separate stream is that, while the accused is not criminally responsible for his or her behaviour, the public may still require protection from future dangerous behaviour. Therefore, the goal of a Review Board is to conduct an individual assessment of the accused and subsequently craft a disposition that both protects the public and attempts to provide opportunities to treat the underlying mental disorder.

While most NCRMD cases are diverted to a Review Board, the court which renders the verdict also has the authority to order a disposition if it is satisfied that it could readily do so and that a disposition should be made without delay. Under section 672.54 of the Criminal Code, there are three dispositions available to a court or Review Board:

If the court orders a conditional discharge or detention, however, the provincial or territorial Review Board is still obligated to hold a hearing and order a new disposition within 90 days. Therefore, with the exception of cases that receive an absolute discharge by the courts, Review Boards are generally responsible for determining the appropriate disposition of an accused found NCRMD.

Under section 672.54, the court or Review Board must order the disposition that is the least onerous and least restrictive to the accused. In determining such a disposition, the court or Review Board must balance the dual roles of protecting the public and treating the accused in a fair and humane manner that respects his or her rights. Section 672.54 states that the court or Review Board shall take into account "the need to protect the public from dangerous persons, the mental condition of the accused, the reintegration of the accused into society and the other needs of the accused."

In 1999, the Supreme Court of Canada, in R. v. Winko,provided guidance on section 672.54 and ruled that if the accused does not pose a significant threat to the safety of the public, the court or Review Board must order an absolute discharge. This decision reflects the basic principle that the only rationale for using the state's criminal law power to impose restraints on an individual who has been found not criminally responsible for his or her actions is the need to secure the safety of the public.[4]

The Supreme Court of Canada further clarified in R. v. Winko that Section 672.54 does not create a presumption of dangerousness. In other words, while the protection of society is paramount, there must be clear evidence of a significant risk to the public before a court or Review Board can maintain control over an accused through the imposition of a conditional discharge or detention order.

If the court or Review Board orders an absolute discharge, the NCRMD accused is released from further involvement with the system for the specific offence that led to the NCRMD verdict.

If the court or Review Board orders a conditional discharge, the accused is supervised in the community through the imposition of restrictions on his or her liberty. Typical conditions ordered by a court or Review Board during a conditional discharge specify that the NCRMD accused must:

Although these represent some of the most common conditions, Section 672.54 (b) states that the accused may be discharged subject to any conditions the court or Review Board considers appropriate.

If the court or Review Board orders detention, the accused will be placed in custody within a hospital. There are still times, however, when he or she will be managed within the community under conditions. The court or Review Board can delegate authority to manage the accused to the hospital where the accused has been detained. As such, the hospital administrator has the power to increase or decrease the restrictions on the NCRMD accused. Therefore, it is possible for an accused to leave hospital grounds with permission from the hospital administrator.

Until an NCRMD accused is given an absolute discharge, he or she will remain under the authority of the Review Board. In general, the Supreme Court of Canada has ruled that the indeterminate nature of this scheme does not violate an NCRMD accused's liberties protected under the Charter of Rights and Freedoms. However, the disposition is also not considered to be punitive in nature. As stated in R. v. Winko:

…it has been determined that the NCR offender is not morally responsible for his or her criminal act. Punishment is morally inappropriate and ineffective in such a case because the NCR accused was incapable of making meaningful choice upon which the punishment model is premised. Because the NCR accused's liberty is not restricted for the purpose of punishment, there is no corresponding reason for finitude. The purposes of restriction on his liberty are to protect society and to allow the NCR accused to seek treatment. This requires a flexible approach that treats the length of the restriction as a function of these dual aims and renders a mechanistic comparison of the duration of confinement inappropriate. [5]

Therefore, the principle of proportionality, which is important in the sentencing of offenders in the criminal justice system, is not a factor in determining an appropriate disposition for an NCRMD accused. That is not to say, however, that the seriousness of the offence committed by an NCRMD accused does not factor into an assessment of his or her dangerousness and ultimately the disposition. Simply, there is no legal requirement for the disposition to be proportionate to the harm caused by the particular offence. So does this imply that disposition length is not related to the seriousness of the criminal act? While there is little Canadian research to answer this question, one study from British Columbia did find that there appeared to be a relationship between the number of days hospitalized and the seriousness of offence committed by NCRMD accused.[6] For example, the study found that accused who had committed murder spent, on average, 1165 days hospitalised prior to release while accused who had committed theft had only spent an average of 48 days hospitalised.

Under Section 672.81, the Review Boards must hold a hearing every year in order to review the disposition. During these annual reviews, Review Boards can impose any of the three available dispositions (i.e., absolute discharge, conditional discharge, detention) and alter any of the conditions previously imposed on the accused. In addition to these annual reviews, additional mandatory reviews do occur within the year if, for example, restrictions on the liberty of an accused have been significantly increased for a period exceeding seven days or if a hospital administrator requests a review. Finally, discretionary reviews are possible upon the request of the accused or any other party.

1.2 Unfit to Stand Trial

While an accused deemed NCRMD has been found to have committed the act that formed the basis of the offence for which he or she has been charged, it is also possible that an accused is not able to participate in his or her full answer and defence on account of mental disorder. In such cases, it is considered inconsistent with the principles of fundamental justice to determine if he or she has actually committed the offence in question through a trial. Section 2 of the Criminal Code defines an accused as unfit to stand trial if he or she is:

…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:

  1. understand the nature or object of proceedings;
  2. understand the possible consequences of the proceedings; or
  3. communicate with counsel.[7]

As with an individual found NCRMD, an accused found UST by a court is also diverted to the Review Board stream. Neither the courts nor Review Boards currently have the authority, however, to order an absolute discharge for an accused found UST – they can only order a conditional discharge or detention order. Therefore, until the UST accused is deemed fit or until the charges are stayed or withdrawn, he or she will remain under the purview of the Review Board with one notable exception. The courts must review the case of a UST accused every two years in order to determine whether sufficient evidence still exists to bring the individual to trial. If the court is satisfied upon review that a prima facie case no longer exists, the accused is entitled to an acquittal. For youth found UST, the court must review the case every year rather than every two years according to section 141(10) of the Youth Criminal Justice Act.

The Supreme Court of Canada ruled in R. v. Demers, however, that the inability of the court or Review Board to absolutely discharge a "permanently" unfit accused who does not pose a significant threat to society infringes liberties guaranteed under section 7 of the Charter of Rights and Freedoms. This issue has been addressed through a recent amendment to the Criminal Code introduced with the proclamation of Bill C-10 on June 30, 2005. Following the implementation of Bill C-10 on January 1, 2006, a court will be authorized to order a stay of proceedings for an accused deemed UST if:

Bill C–10 still does not provide Review Boards with the ability to absolutely discharge an accused found UST; this power will only be given to the courts.

1.3 Present Study

The goal of this present study is to provide basic information on Review Board systems in Canada and the people who have passed through their control. Currently, there is little information on the nature of NCRMD and UST cases that are processed through Review Board systems, including the type of offences for which accused have been charged, the psychiatric diagnoses of accused, the range of conditions imposed on accused, or the average length of time NCRMD or UST accused spend under the purview of Review Boards. In fact, since 1992, there has been no systematic or extensive data collected on the Review Board systems. In 2002, following a parliamentary review of the mental disorder provisions of the Criminal Code (Part XX.1), the Standing Committee on Justice and Human Rights recommended that:

The Department of Justice and other relevant departments and agencies, in collaboration with their provincial counterparts, collect, process, and analyze the data necessary to facilitate a further parliamentary review of Part XX.1 of the Criminal Code…[9]

In order to fill this gap, the Department of Justice Canada introduced a data collection strategy in cooperation with Review Boards in seven provinces and territories. This report represents the results of this data collection strategy and provides information on the nature of cases that have been processed through the Review Board systems in Canada between 1992 and 2004.