Measures to Modernize the Mental Disorder Provisions of the Criminal Code

Why is the Government of Canada introducing this legislation?

This package of reforms responds to commitments made in the Government's response to a report and recommendations of the House of Commons Standing Committee on Justice and Human Rights, which was released in June 2002. The Standing Committee had reviewed, as part of a statutory requirement, the mental disorder provisions in the Criminal Code.

Following a comprehensive review, the Standing Committee issued 19 recommendations calling for specific legislative reforms, as well as further consultation and research. The Department of Justice has consulted with key stakeholders since the last major reforms to the mental disorder provisions in 1992, resulting in conclusions consistent with those of the Standing Committee.

To whom does the legislation apply?

These Criminal Code provisions apply to the mentally disordered accused: persons who are not criminally responsible on account of mental disorder or found unfit to stand trial due to their mental disorder.

In order for an accused to be found not criminally responsible by reason of mental disorder, it must be shown that the accused was incapable of either appreciating the nature and quality of the act or omission, or of knowing that it was wrong, as a result of suffering from a mental disorder at the time of the offence.

If tried for an offence and found not criminally responsible, the accused is neither convicted nor acquitted and, as a result, is not sentenced. Instead, a court or Review Board determines the appropriate disposition - an absolute discharge, a discharge with conditions or detention in hospital based on several criteria set out in the Criminal Code. The Review Board will continue to monitor and review the disposition, making any necessary changes, until such time as the accused is absolutely discharged.

"Unfit to stand trial" is defined in the Criminal Code as 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. The accused is also unable to understand the nature, object or possible consequences of the proceedings, or to communicate with counsel.

Where a person is found to be unfit to stand trial, the prosecution cannot proceed and the accused will be dealt with by the Review Board until found fit and tried. In addition, an inquiry will be held by the court two years after the verdict of unfitness 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 court may also order treatment not exceeding 60 days, if satisfied on the basis of medical evidence, that the proposed treatment will make the accused fit to stand trial without significant risk of harm. It must also be determined that without this treatment the accused is likely to remain unfit to stand trial.

What does the legislation include?

The amendments build on the existing framework to safeguard the rights of persons found unfit to stand trial or not criminally responsible on account of mental disorder and protect public safety by focussing on several areas:

1) Review Board Powers

Review Boards are made up of officials appointed by each provincial and territorial government to administer Criminal Code provisions governing persons found unfit to stand trial or not criminally responsible on account of mental disorder. Guided by several criteria set out in the Code, Review Boards determine how the accused should be supervised - for example, being housed in a psychiatric hospital, living in the community with conditions, or absolutely discharged.

Several amendments will clarify and expand the authority of Review Boards, allowing them to:

i. adjourn a hearing for up to 30 days

ii. convene a hearing on their own initiative;

iii. issue a summons or warrant to require the accused's attendance at a hearing;

iv. order a psychiatric assessment of the mental condition of the accused to assist in determining a disposition. There are various scenarios when this order can be made - for example, if no previous assessment exists or one has not be completed within the last 12 months, as well as when the accused has been transferred from another province.
The order can also be issued when determining whether to recommend to the court that an inquiry be held on the status of a long-term unfit accused person.

v. extend the time-period between annual reviews of the disposition for the mentally disordered accused, up to an additional 12 months in certain circumstances or with the consent of the legally represented accused and the Crown. Circumstances include cases involving those found not criminally responsible on account of mental disorder for acts involving serious personal injury, including sexual assault. The Review Board must have already determined that the accused should be detained in the custody of a hospital, and also concluded that the condition of the accused is not likely to improve over the extended period and that detention remains necessary over such time.

When the review hearing is extended to the full 24 months, either the accused or the hospital may still request an earlier review.

2) Permanently Unfit Accused

Some accused persons found unfit to stand trial may never be fit to stand trial due to, for example, an organic brain injury or the unavailability of treatment for their mental disorder.
The permanently unfit accused currently require ongoing supervision and indefinite reviews by the Review Board.

The amendments will enhance the safeguards already in the Criminal Code for the unfit accused by allowing the Review Board to recommend to the court that an inquiry be held on the status of the permanently unfit accused. This recommendation would be made when the Review Board finds that the accused is unfit and unlikely to ever become fit, and does not pose a risk to the safety of the public. The court would then have the discretion to hold an inquiry to determine whether a judicial stay of proceedings is in the interests of the proper administration of justice. The court may hear from the parties, including the Crown, with respect to whether the stay should be ordered. If a stay is not ordered, the unfit accused will remain governed by the disposition set by the Review Board.

3) Victims

The amendments will permit a victim to read a victim impact statement at a Review Board hearing, unless the Review Board decides there are compelling reasons why this would be inappropriate. Following the verdict, the court or Review Board would also be required to advise a victim of the right to submit a victim impact statement at the initial disposition hearing for the accused. Publication bans could also be ordered by the Review Board to protect the identity of a victim or witness.

4) Repeal of Unproclaimed Provisions

The Standing Committee and a majority of stakeholders recommended the repeal of unproclaimed provisions from the 1992 reforms to the mental disorder provisions of the Criminal Code. Capping was originally proposed to place a maximum limit or cap on the period for which a mentally disordered accused would be detained or under conditions of supervision. However, recent court rulings confirm that, even without the capping provisions, the law already includes sufficient safeguards and that only those who pose a danger to public safety should remain under a disposition. As a result, the capping provisions and the related dangerous mentally disordered accused provisions would be repealed under the proposed changes.

5) Transfer Provisions

A person found not criminally responsible on account of mental disorder may be transferred from one province or territory to another if the transfer promotes the recovery, treatment or reintegration of the accused and provided consent is obtained from the applicable Attorneys General and Review Boards. Amendments will clarify that transfers can be made when an accused is either in custody (e.g. in a psychiatric hospital) or out of custody (e.g. living in the community under strict conditions). In both cases, the sending and receiving jurisdictions must give their consent.
6) Police Powers to Enforce Dispositions and Assessment Orders

Amendments will expand the options available to police when arresting a person found unfit to stand trial or not criminally responsible on account of mental disorder for failure to comply with a disposition. For example, the police could issue a summons or appearance notice to help ensure the presence of the accused at a court or Review Board hearing, rather than use detention. The police may also return the accused to the place they are required to reside - rather than keep them under custody - while awaiting an appearance before the court. Police will detain an accused only when necessary, for example, to establish personal identity or prevent the commission of an offence.

Complementary changes to the Youth Criminal Justice Act and the National Defence Act are also included in the proposed legislation to ensure consistency with the Criminal Code reforms on mental disorder provisions.

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March 2004