History

While the rudiments of our present scheme can be traced to the writings of Sir Matthew Hale in the seventeenth century, its modern history commences with the case of Rex v. Hadfield (1800), 27 St.tr.1281.

James Hadfield had fired a shot from his horse at King George III and was subsequently found "not guilty"; he being under the influence of insanity at the time the act was committed. The criminal court of the time had two options: (1) release him into the community because he had been acquitted on the charges of attempt murder and treason, or (2) return him from whence he came (i.e. prison). Lord Kenyon, Chief Justice, recognized that prison was not the place for Mr.Hadfield nor was his return to the community the right choice. During the course of giving his judgment he said the following:

"the prisoner, for his own sake, and for the sake of society at large, must not be discharged; for this is a case which concerns every man of every station, from the King upon the Throne to the beggar at the gate; people of both sexes and of all ages may, in an unfortunate frantic hour, fall a sacrifice to this man, who is not under the guidance of sound reason; and therefore it is absolutely necessary for the safety of society that he should be properly disposed of, all mercy and humanity being shown to this most unfortunate creature. But for the sake of the community, undoubtedly he must somehow or other be taken care of, with all the attention and all the relief that can be afforded him... for the present we can only remand him to the confinement he came from..."

Hadfield was returned to prison but as a result of the conundrum presented by his case, the British Parliament passed the Criminal Lunatics Act, 1800, 39 & 40 Geo.III, c.94 (U.K.), which gave the court authority to commit an accused found to be not guilty by reason of insanity to "strict custody, in such place and in such manner as the court shall deem fit, until His Majesty's Pleasure is known..." The Act further gave authority to His Majesty to make an order for the safe custody of such persons during his pleasure. The provisions of that Act were incorporated into the drafts of the British Criminal Code which was never enacted but which was later adopted by Canada as its first Criminal Code of 1892. These provisions remained virtually unchanged in form until the proclamation of Bill C-30 on February 5, 1992. The main part of Bill C-30 formed what is now Part XX.1 of the Criminal Code. Section 672.38 which first appeared in the Criminal Code in 1992 reads as follows:

s. 672.38(1) A Review Board shall be established or designated for each province to make or review dispositions concerning any accused in respect of whom a verdict of not criminally responsible by reason of mental disorder or unfit to stand trial is rendered and shall consist of not fewer than five members appointed by the lieutenant governor in council of the province.

s. 672.38(2) A Review Board shall be treated as having been established under the laws of the province. 1991. c. 43, s. 4.

Prior to 1992, and the mandatory creation of Review Boards under s.672.38 of the Criminal Code, provincial and territorial courts had no discretion but to automatically detain in "strict custody" persons found "not guilty by reason of insanity" or unfit to stand trial on what was known as a "Lieutenant Governor's Warrant". From initial detention the accused could then "cascade" down to lesser levels of security - a process known as the "loosening" of the warrant. That regime had sometimes been referred to as the "L.G.W. system."

Within the statutory provisions of the previous scheme the Lieutenant Governor had custody of the mentally disordered accused, however, those decisions did not require the input from an advisory review board. That part of the scheme was optional for each province. In Ontario, a review board had existed for some time prior to the proclamation of Bill C-30. The board was known as the Lieutenant Governor’s Board of Review. That "advisory" board had no authority or jurisdiction to determine what should happen with a person whose position it had to review, but rather it was restricted to reporting to the Lieutenant Governor its findings, opinions and conclusions. Persons who were subject to a Lieutenant Governor's Warrant were kept in strict custody until the Lieutenant Governor's pleasure was known through Warrants issued in his or her name. The system or scheme then envisaged by the Criminal Code was administered differently in different provinces.

In 1991, in the case of R.v.Swain, [1991] 1 S.C.R. 933, the Supreme Court of Canada struck down the scheme then set out in the Criminal Code for dealing with persons found not guilty by reason of insanity in that it violated the accused rights as defined by the Charter of Rights and Freedoms. The court directed the Federal Government to devise a new scheme for the supervision of the mentally disordered accused within 6 months of its decision. That decision resulted in Bill C-30.

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Present Bill C-30 Provisions [Part XX.1 of the Criminal Code]

The Bill C-30 amendments modernized some of the language which had been used in the Criminal Code for over 100 years. "Not guilty by reason of insanity" was changed to "not criminally responsible". Automatic "strict custody" was eliminated. Instead, the court is now able to hold a disposition hearing immediately following the verdict and make its own disposition for the accused. The role of the Lieutenant Governor has been eliminated. The "advisory" boards which existed prior to 1992 were converted into adjudicative boards whose responsibilities were expanded to the actual making of the order, now referred to as a "Disposition".

The new provisions of the Criminal Code require that a jury or judge may find the accused committed the act or made the omission that formed the basis of the offence charged but was at the time suffering from mental disorder so as to be exempt from criminal responsibility by virtue of s. 16 of the Criminal Code. The jury or judge ... "shall render a verdict that the accused committed the act or made the omission but is not criminally responsible on account of mental disorder". In light of this provision it would now appear to be technically incorrect to say that such an accused has been "acquitted" of the offence with which he was charged.

The common law definition of "unfitness to stand trial" was codified [as set out below] in s.2 of the Criminal Code. An accused is presumed to be fit to stand trial until the contrary is proven on a balance of probabilities. An accused is unfit to stand trial where he or she is unable, on account of mental disorder, to understand the nature or object of the proceedings, the possible consequences of the proceedings, or to communicate with counsel.

If the court returning a verdict that an accused is unfit to stand trial or not criminally responsible ("NCR") does not hold a disposition hearing, or holds a disposition hearing but makes no disposition, the accused then remains subject to whatever order for custody or judicial interim release was in existence at the time of the verdict. That could mean either the existing or varied bail order or an order requiring custody in jail or in hospital pending a first disposition ("initial disposition") by the provincial review board.

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Membership of the Review Board

Members of the Board are appointed by the Lieutenant Governor in Council for each province. An order-in-council is issued for each member appointed to the Board. Although the Board is created pursuant to the provisions of the Criminal Code of Canada, a federal statute, the Code expressly provides that the Board is to be treated as "having been established under the laws of the province".

The Board must consist of no fewer than 5 persons. The Code specifically provides that there must be at least one member of the Board qualified to practice psychiatry, and, in the event there is only one such member, one other who has "training and experience in the field of mental health and is entitled to practice medicine or psychology".

With the proclamation of Bill C-30, a quorum of the Board consists of the Chairperson, a psychiatrist and "any other member". The Chairperson must be a judge of the Federal Court or of a superior, district or county court of a province, or a person who has retired from or is entitled to be appointed to such a judicial office (i.e. a lawyer with 10 years experience). "Chairperson", by definition, includes not only the Chairperson as appointed by Cabinet, but any other qualified member who the Chairperson designates as an "Alternate Chairperson" to act on the Chairperson’s behalf.

Traditionally, the Ontario Review Board has sat in panels of five. While there was a period of experimentation with panels of three, it has now been decided that it is preferable to sit in panels of five.

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The Population

At present, there are approximately 1500 persons over whom the Board has jurisdiction. Those persons are under the Board’s jurisdiction either because they were found to have been unfit to stand trial or not criminally responsible on account of mental disorder. The number of accused subject to the jurisdiction of the Ontario Review Board has been increasing at a rate of approximately 10% per year.   This growth pattern would appear to be disproportionate to provincial population growth as well as to increases in the general arrest rate.

The statutory provisions defining the unfit and N.C.R. accused are set out below:

Criminal Code of Canada

s.2 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

1.       understand the nature or object of the proceedings,

2.       understand the possible consequences of the proceedings,

3.       communicate with counsel.

s.16 Not Criminally Responsible: 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.

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The Parties

The three parties at most hearings are the accused, the person in charge of the hospital, and the Attorney General. Most accused are represented by counsel as is the Attorney General. Persons in charge of hospitals do retain counsel in a small percentage of cases. Others who have a "substantial interest in protecting the interests of the accused" may be designated as parties by the court or Review Board. Where the accused is a "dual status offender" [described below] the Solicitor General of Canada or the Minister of Correctional Services becomes a statutory party for federal and provincial inmates, respectively.

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Hearings

In the year ending March 31, 2010 the Ontario Review Board conducted 1920 hearings.  Hearings are open to the public, subject to the power of the Court or Review Board to exclude the public for all or part of a hearing where it is considered to be in the best interests of the accused and not contrary to the public interest (s.672.5(6))

Annual hearings are scheduled to be heard 4 per day, 5 days a week. With a few exceptions, all such hearings are held in the hospital at which an accused is detained or to which a conditionally discharged accused reports. On some occasions a hearing (particularly an initial hearing) might he held in a court house if the accused is in a jail. For the Greater Toronto Area, most hearings that would otherwise have been held in a jail are being held at the courthouse at College Park.  Old City Hall’s special court for the mentally disordered accused, servicing the Greater Toronto Area, which has been operational since May 1998, also may provide space for the Ontario Review Board to conduct its hearings, ½ day per week. For accused who are living in the community, it is also possible to conduct the annual hearing at the Board's premises at 151 Boor St. W., Toronto.

When a hearing is conducted in a hospital, it is usually held in a boardroom or a similar setting. Hearings before the Ontario Review Board are informal and, while sometimes contentious, are not strictly adversarial in the same sense that a criminal or civil trial is adversarial. Evidence may be, but rarely is, taken under oath. In this respect, the  Chair has the power to call for such evidence to be taken under oath by virtue of being given the powers of a Commissioner as conferred by s.4 and 5 of the Federal Inquiries Act.

If the hearing's purpose is to review an accused who has been found unfit to stand trial the Criminal Code provides that there must be counsel representing him or her present at the hearing. If such an accused appears before the Board unrepresented, arrangements must be made to have counsel appointed before the hearing can continue. The same requirement applies in respect to unrepresented accused who have been found N.C.R. wherever, in the opinion of the Board, the interests of justice so require.

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Unfit Accused

In the case of an accused who has been found unfit to stand trial the court retains residual jurisdiction over the accused who returns to court if and when he becomes fit to stand trial. Therefore, an absolute discharge is not an option for an unfit accused. Jurisdiction is maintained over the unfit accused only so long as he or she remains unfit.

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Dispositions

As mentioned above, with the proclamation of Bill C-30 the Lieutenant Governor’s involvement and the "warrant" system came to an end in 1992. It is the provincial review boards who are the final decision-makers. The final decisions are now referred to as "dispositions". Three disposition options are now available for the accused who has been found N.C.R. and two options for the unfit accused. These are set out below.

672.54.Where a court or Review Board makes a disposition pursuant to subsection 672.45(2) or section 672.47 or 672.83, it shall, taking into consideration 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, make one of the following dispositions that is the least onerous and least restrictive to the accused:

1.       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;

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

3.       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.

A majority vote of the panel determines the Disposition that is to be made.

Absolute Discharge

According to the provisions of Part XX.1 of the Criminal Code, an accused who has been found N.C.R. can be only granted an absolute discharge by the Board where it is satisfied that "the accused is not a significant threat to the safety of the public". With the decision of the Supreme Court of Canada in Winko v. B.C. (Forensic Psychiatric Institute) 135 C.C.C. (3d) 129 (S.C.C.) this test has been clarified. The Supreme Court has indicated that unless there is a positive finding that the accused is a significant threat to the safety of the public an absolute discharge must be granted.

If an accused is not positively found to be a significant threat to the safety of the public and is therefore to be absolutely discharged, the Board will have no further jurisdiction over the accused. The Board considers the future risk to the public in determining the issue of significant threat. It is important to realize that assistance is available to the accused other than by way of an Ontario Review Board Disposition. Relevant civil legislation (e.g. Health Care Consent Act, Substitute Decisions Act, Mental Health Act and reliable supports within the community (e.g. Public Guardian and Trustee, Community and Social Services) must also be factored into the determination of "significant threat". An accused may be connected to a variety of community agencies and services which, together with family support, may attenuate any threat to such an extent that an absolute discharge may be appropriate.

Detention Dispositions

The Board may order a person detained in a hospital. Such a disposition may include conditions specifying the hospital, the level of security and the privileges for access to the community.

Community privileges may include the privilege to live in the community in accommodation approved by the person-in-charge of the hospital.

The Board, in imposing conditions, generally delegates authority to the person-in-charge of the hospital to implement such conditions at his/her discretion.

Conditional Discharge

A disposition which discharges an accused conditionally enables the accused to live in the community subject only to specific conditions set out in the disposition. Such conditions typically require the accused to report to a hospital, refrain from use of alcohol or drugs, report any change of address, or refrain from contact with certain individuals.

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Treatment

The Board has no power to order that the accused submit to treatment over his or her objection. There is only one very narrow window of opportunity for the imposition of involuntary treatment within provisions of the Criminal Code; that is, by a court upon a verdict of unfit to stand trial, and prior to the making of a disposition pursuant to s.672.54. However, terms related to treatment may now be included in a disposition with the accused’s consent. Where consent is withdrawn subsequent to the issuance of such a disposition the term becomes inoperative but may cause one of the parties to seek a review of the disposition.

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Reasons

The Board must give written reasons for each disposition. Generally the disposition is prepared and provided to the parties within ten days. The Reasons are usually provided within 4 weeks.

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Disposition Information

Some two weeks or so prior to the date of a hearing a copy of the Board's record and new disposition information is sent to each member scheduled to preside at an upcoming hearing as well as to all of the parties. That record will include a copy of the current outstanding disposition and reasons, if they exist. Disposition information generally consists of a copy of the hospital's up-dated report and recommendations to be considered at the upcoming hearing.

Normally, evidence before the Board consists of the oral testimony made by the parties’ witnesses and documents filed as exhibits. All witnesses called may be subject to cross-examination. The Criminal Code requires that proceedings be recorded.

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Hospitals

For the purposes of Part XX.1 of the Criminal Code, "hospital" has been defined in s.672.11 as:

a place in a province that is designated by the Minister of Health for the province for the custody, treatment or assessment of an accused in respect of whom an assessment order, a disposition or a placement decision is made.

The names of the designated hospitals in Ontario are found in the Mental Health Act.


The list is as follows:

Brockville, Ontario - Brockville Mental Health Centre - Member of the Royal Ottawa Health Care Group

Hamilton, Ontario - St. Joseph's Healthcare Hamilton West 5th Campus

Kingston, Ontario - Providence Care Centre: Mental Health Services Site

North Bay, Ontario - North Bay Regional Health Centre

Ottawa, Ontario - Royal Ottawa Mental Health Centre - Member of the Royal Ottawa Health Care Group

Penentanguishene, Ontario - Waypoint Centre for Mental Health Care

St. Thomas, Ontario - Southwest Centre for Forensic Mental Health Care, St. Joseph's Health Care London

Thunder Bay, Ontario - Thunder Bay Regional Health Sciences Centre

Toronto, Ontario - Centre for Addiction and Mental Health

Whitby, Ontario - Ontario Shores Centre for Mental Health Sciences

Oakville, Ontario – Syl Apps Youth Centre

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Review of Dispositions

Where the court does not make a disposition, the initial review by the Review Board must take place within 45 days of the verdict of N.C.R. or unfit to stand trial. If, following the disposition hearing, the court does make a disposition, then the Review Board must conduct its initial review within 90 days.

The fact that the Board has not conducted a hearing within 45 or 90 days or 12 months, as the case may be, does not result in the accused becoming free of the Board's jurisdiction. The time limits that have been imposed upon the Board are an attempt by Parliament to overcome the criticism which was levelled at the prior scheme by the Supreme Court of Canada. That scheme was quite "loose" with respect to the responsibility of the predecessor of the Review Board to conduct a review of an accused's "warrant". The fact that the Board fails to conduct a hearing within the required time provides an accused person with grounds for appropriate relief to the appropriate court.

Section 672.81 of the Code requires the Review Board "to hold a hearing not later than 12 months after making a disposition and every 12 months thereafter for as long as the disposition remains in force, to review any disposition it has made in respect of an accused, other than an absolute discharge...". The 12 month hearings, or as they are referred to "the annuals", make up a large part of the work of the Board. In some limited circumstances (section 672.81(1.1 to 1.5)) the time within which to hold a hearing may be extended for up to 24 months.

As mentioned above, if the court or Review Board does not find that an accused is a significant threat to the safety of the public, and as a result absolutely discharges that accused, then he or she is no longer subject to review by the Review Board.

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Other Reviews

In addition to the "initial" and "annual" hearings mentioned above, there are provisions in Part XX.I of the Code to allow for other hearings within the normal time parameters. These ad hoc hearings may be triggered by the hospital administrator's request, the request of one of the other parties (discretionary), or where the accused's liberty has been significantly restricted for a period of more than seven days. The procedures are the same for these hearings as at the others and the Board's jurisdiction is limited to reviewing the operative disposition.

Finally, there are two other sorts of hearings held by the Board: placement hearings and applications for interprovincial transfer. "Placement hearings" are held for all "dual status offenders". "Dual Status Offender” is defined as an offender who is subject to a sentence of imprisonment in respect of one offence and a custodial disposition under paragraph s.672.54 (c) in respect of another offence. The decision to be made at a placement hearing is whether the accused should be detained in prison or in a hospital.

An accused may also apply to the Board if they wish to move to another province. Applications for interprovincial transfer are also heard by the Board; however, the Board's jurisdiction in such cases is limited to making a recommendation regarding transfer. The actual decision to transfer [or not] is made subsequent to the recommendation of the Board by the Attorneys General of the sending and receiving jurisdictions.

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Appeals

The right of appeal from a Board's Disposition is directly to the Court of Appeal for Ontario which is required to hear such an appeal "as soon as practicable," after the day on which the Notice of Appeal is filed and within any period that may be fixed by the Court of Appeal.

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Revisions as at February 25, 2011