The Criminal Code requires Review Boards to be appointed in every province and territory by the Lieutenant Governor in Council (the Cabinet) of each province. Each Review Board must consist of at least five persons. The Chair of the Review Board must be either a judge or a person qualified to be a judge (at least 10 years’ call to the Bar). At least one member of the Review Board must be qualified to practice psychiatry. Each Review Board panel also includes other members, often referred to as “public members”, whose qualifications are not specified in the Criminal Code. Typically, in BC these are individuals with experience in mental health, medicine, psychology, social work, or criminology. All members other than the Chair are part-time members.
A “quorum” (a panel of members designated to conduct a hearing) of the Review Board must consist of at least the Review Board Chair or a designated alternate chair, a psychiatrist, and any other member. The British Columbia Review Board generally sits in panels of three.
Review Board hearings are usually open to the public. However, the Review Board may close the hearing to the public if it is in the best interests of the accused and not contrary to the public interest. It is recommended that you contact the Review Board Registry should you wish to attend a particular hearing.
The courts and Parliament have long held that it would not be fair to hold mentally ill persons to the same standard of culpability as those without mental illness. However, they have also recognized that it is important to protect the public from mentally ill persons who are dangerous. In 1992, Part XX.1 of the Criminal Code was enacted and created Review Boards as they are known today.
Their mandate is described in s. 672.38 (1) of the Criminal Code:
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.
Persons under Review Board jurisdiction are referred to as “accused”, as they have been charged with a criminal offence but have not been convicted.
Part XX.1 replaced the verdict “not guilty by reason of insanity” (NGRI) with a new verdict: “not criminally responsible on account of mental disorder” (NCRMD), defined in s. 16 (1) of the Criminal Code:
16 (1) 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.
A verdict of NCRMD is a final verdict. Unlike the verdict of “unfit to stand trial”, this verdict can only be reached after a trial on the charges. The NCRMD verdict is distinct from the other criminal law verdicts of “guilty” and “acquitted”. To issue an NCRMD verdict, a court must:
- be satisfied beyond a reasonable doubt that the accused person committed the acts alleged to constitute the offence, and
- be satisfied on a “balance of probabilities” (i.e., more likely than not) that the accused committed the act while suffering from a mental disorder that rendered him or her incapable of appreciating the nature or quality of the act or of knowing that it was wrong.
The NCRMD verdict means that the accused has, beyond a reasonable doubt, committed the acts alleged in the charge (for example, that the accused struck a blow causing bodily harm to another person), but was not legally or morally responsible for those acts on account of “mental disorder”, that is, a criminal act was proven, but there was no criminal intent.
The Criminal Code diverts those receiving the NCRMD verdict – known as “NCR accused” – to a special stream, designed to achieve the twin goals of protecting the public and treating mentally disordered offenders fairly and appropriately. It recognizes that some persons who receive NCRMD verdicts may, by virtue of their illness, be dangerous after the verdict, while others will not. Part XX.1 recognizes that the only way a fair and just decision can properly be made about the liberty of a person receiving an NCRMD verdict is after an individualized assessment of their dangerousness. This assessment process is the core of the Review Board’s mandate.
“Unfit to stand trial” is defined in Section 2 of the Criminal Code:
“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:
- understand the nature and object of the proceedings,
- understand the possible consequences of the proceedings, or
- communicate with counsel.
The law recognizes that it would be unfair to force an unfit accused person to stand trial while they remain too ill to understand what the trial is about or to be able to communicate with legal counsel. At the same time, if an unfit accused subsequently becomes fit to stand trial, both the accused and society have a strong interest in ensuring that charges are dealt with.
The Review Board’s role is triggered once a court issues a verdict that an accused person is unfit. There is then a specialized, periodic, and independent review to ensure that unfit accused are returned to court as soon as possible.
If the Review Board is of the opinion that, at the time of its hearing, an accused is fit to stand trial, the accused is returned to court for trial. If the Review Board determines that the person remains unfit, the person is not returned to court. Instead, the person is either detained in custody or discharged into the community under conditions imposed by the Board.
Section 672.54 of the Criminal Code articulates the Review Board’s responsibilities to balance the interests of public safety and individual liberty:
672.54 When a court or Review Board makes a disposition under subsection 672.45(2), section 672.47, subsection 672.64(3) or section 672.83 or 672.84, it shall, taking into account the safety of the public, which is the paramount consideration, 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 necessary and appropriate in the circumstances:
- (a) 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;
- (b) by order, direct that the accused be discharged subject to such conditions as the court or Review Board considers appropriate; or
- (c) 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.
Every NCR accused is entitled to a consideration of the full range of possible dispositions (absolute discharge, conditional discharge and custody) at every hearing. Persons who are unfit to stand trial are not entitled to an absolute discharge, because they have not yet been tried for their offences.
A “significant threat to the safety of the public” means a real risk of physical or psychological harm to members of the public that is serious in the sense of going beyond the merely trifling or annoying. The conduct giving rise to the harm must be criminal in nature.
There is no presumption that NCR accused pose a significant threat to the safety of the public. Restrictions on their liberty can only be justified if, at the time of the hearing, the evidence before the Review Board shows that the NCR accused actually constitutes such a threat.
If the Review Board concludes that the NCR accused is not a significant threat to the safety of the public, it must order an absolute discharge.
If the Review Board concludes that the NCR accused is a significant threat to the safety of the public, it has two alternatives. It may order that they be discharged subject to conditions that the Board considers necessary, or it may direct that they be detained in custody in a hospital, again subject to appropriate conditions.
In making this decision, the Review Board must again consider the need to protect the public from dangerous persons, as well as the mental condition of the NCR accused, the reintegration of the accused into society, and the other needs of the NCR accused, and make the order that is “necessary and appropriate”. This phrase has been interpreted by the courts as being the disposition that is the least onerous and least restrictive to the accused. The Review Board process is intended to be rehabilitative, not punitive, and so the dispositions are intended to safely reintroduce an accused to the community.
In all cases, the Review Board is required to make the disposition that is the least restrictive and onerous, consistent with public safety. When considering the appropriate disposition for Indigenous accused, the Review Board is required to consider the accused’s unique circumstances.
There may be situations where the Review Board panel, defence counsel or Crown counsel is of the view that it would be helpful to have more information about an Indigenous accused’s background and circumstances, as well as potential culturally appropriate dispositions.
This information may best be provided through a Gladue report. In British Columbia, Gladue reports are now being prepared by the First Nations Justice Council. Their website describes Gladue reports as follows:
“Gladue reports are a specialized pre-sentence report prepared by a Gladue report writer that helps the court fulfill the requirements of R. v. Gladue and subsequent jurisprudence. A Gladue report writer provides the court information about an Indigenous person accused of a crime and their relevant Gladue factors through a series of interviews with the offender and those closest to them. Gladue reports also include information on sentencing options, including those that are culturally appropriate, and a healing and restorative justice plan unique to the individual.”
Review Board accused are also able to benefit from Gladue reports, and defence counsel can request a Gladue report through the First Nations Justice Council.
1. NCRMD Accused
In NCRMD cases the Criminal Code gives the Review Board exclusive responsibility for periodically assessing each accused where the court has not absolutely discharged the accused immediately after the NCRMD verdict. At the conclusion of each NCRMD disposition review hearing, the Review Board must decide whether the accused poses a significant risk to the safety of the public. If the evidence does not show that they are a significant risk to the safety of the public, they must be absolutely discharged. If the Review Board concludes that the accused is a significant risk to the safety of the public, the Review Board must issue either a “conditional discharge”, or a “custody” disposition.
At the end of each Review Board hearing involving an NCRMD accused the Review Board must issue one of three possible dispositions:
- Absolute discharge (accused is totally free to go)
- Conditional discharge (accused may live in the community subject to the conditions or restrictions determined by the Review Board)
- Custody (accused is detained in a hospital subject to the conditions or restrictions determined by the Review Board)
2. Unfit Accused
While the Review Board must consider all three disposition options for every NCRMD accused, the Board is not permitted to absolutely discharge an unfit accused, as they have been charged with a crime but have not yet had a trial. The Criminal Code therefore only allows the Review Board to make a conditional discharge or custody disposition for an unfit accused.
The Criminal Code provides a safeguard to protect the liberty of accused persons who remain “unfit” for long periods of time by requiring the court to hold an inquiry at least once every two years (or yearly for youth), to determine whether the Crown still has sufficient evidence (called a “prima facie case”) to put the accused on trial. If the Crown does not produce sufficient evidence to make out a prima facie case, the court must acquit the accused. Alternatively, the Crown may decide at this point to stay the charges. If the Crown continues to have sufficient evidence, the Review Board retains jurisdiction over the accused.
Where charges have not been stayed by the Crown and where the Board is of the opinion that an accused is:
- unfit to stand trial and unlikely to ever become fit, and
- not a significant risk to the public;
the Board may choose to refer the matter back to court, and recommend that the court hold an inquiry to determine whether a stay of proceedings should be ordered under section 672.851 (1). Following an inquiry, the court may then choose to stay the charges against the accused.