Not Criminally Responsible Reform Act (S.C. 2014, c. 6)
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Assented to 2014-04-11
R.S., c. C-46CRIMINAL CODE
Marginal note:1991, c. 43, s. 4
17. Subsection 672.88(1) of the Act is replaced by the following:
Marginal note:Review Board of receiving province
672.88 (1) The Review Board of the prov-ince to which an accused is transferred under section 672.86 has exclusive jurisdiction over the accused, and may exercise the powers and shall perform the duties mentioned in sections 672.5 and 672.81 to 672.84 as if that Review Board had made the disposition in respect of the accused.
Marginal note:1991, c. 43, s. 4
18. Subsection 672.89(1) of the Act is replaced by the following:
Marginal note:Other interprovincial transfers
672.89 (1) If an accused who is detained in custody under a disposition made by a Review Board is transferred to another province otherwise than under section 672.86, the Review Board of the province from which the accused is transferred has exclusive jurisdiction over the accused and may continue to exercise the powers and shall continue to perform the duties mentioned in sections 672.5 and 672.81 to 672.84.
Marginal note:2005, c. 22, s. 40
19. Form 48 in Part XXVIII of the Act is amended by replacing “pursuant to section 672.54 or 672.58 of the Criminal Code” with “under section 672.54, 672.58 or 672.64 of the Criminal Code or whether the court should, under subsection 672.84(3) of that Act, revoke a finding that the accused is a high-risk accused”.
Marginal note:2005, c. 22, s. 40
20. Form 48.1 in Part XXVIII of the Act is amended by replacing “section 672.54 of the Criminal Code” with “section 672.54 of the Criminal Code or determine whether the Review Board should, under subsection 672.84(1) of that Act, refer to the superior court of criminal jurisdiction for review a finding that the accused is a high-risk accused”.
REVIEW
Marginal note:Review
20.1 (1) Within five years after sections 2 to 20 come into force, a comprehensive review of the operation of sections 672.1 to 672.89 of the Criminal Code is to be undertaken by a committee of the Senate, of the House of Commons or of both Houses of Parliament that may be designated or established by the Senate, the House of Commons or both Houses of Parliament, as the case may be, for that purpose.
Marginal note:Report
(2) Within a year, or such further time as authorized by the Senate, the House of Commons or both Houses of Parliament, as the case may be, after the review is undertaken, the Committee referred to in subsection (1) must submit a report on that review to the Senate, the House of Commons or both Houses of Parliament, as the case may be, including a statement of any changes recommended by the Committee.
R.S., c. N-5NATIONAL DEFENCE ACT
21. Section 197 of the National Defence Act is amended by adding the following in alphabetical order:
“disposition”
« décision »
“disposition” means an order made by a court martial under section 201, 202 or 202.16 or a finding made by a court martial under subsection 202.161(4);
“significant threat to the safety of the public”
« risque important pour la sécurité du public »
“significant threat to the safety of the public” means a risk of serious physical or psychological harm to members of the public — including any victim of or witness to the offence, or any person under the age of 18 years — resulting from conduct that is criminal in nature but not necessarily violent.
Marginal note:1991, c. 43, s. 18
22. The portion of subsection 201(1) of the Act before paragraph (a) is replaced by the following:
Marginal note:Disposition
201. (1) When a court martial makes a disposition by virtue of subsection 200(2), it shall, taking into account the safety of the public, which is the paramount consideration, the mental condition of the accused person, the reintegration of the accused person into society and the other needs of the accused person, make one of the following dispositions that is necessary and appropriate in the circumstances:
Marginal note:2005, c. 22, s. 49
23. (1) Subparagraph 202.121(1)(b)(ii) of the French version of the Act is replaced by the following:
(ii) d’autre part, il ne présente aucun risque important pour la sécurité du public.
Marginal note:2005, c. 22, s. 49
(2) Paragraph 202.121(4)(b) of the French version of the Act is replaced by the following:
b) d’autre part, il ne présente aucun risque important pour la sécurité du public.
Marginal note:2005, c. 22, s. 49
(3) Paragraph 202.121(7)(b) of the French version of the Act is replaced by the following:
b) qu’il ne présente aucun risque important pour la sécurité du public;
Marginal note:1991, c. 43, s. 18
24. (1) The portion of subsection 202.16(1) of the Act before paragraph (b) is replaced by the following:
Marginal note:Disposition
202.16 (1) When a court martial makes a disposition by virtue of subsection 202.15(1), it shall, taking into account the safety of the public, which is the paramount consideration, the mental condition of the accused person, the reintegration of the accused person into society and the other needs of the accused person, make one of the following dispositions that is necessary and appropriate in the circumstances:
(a) by order, direct that the accused person be released from custody without conditions if, in the opinion of the court martial, the accused person is not a significant threat to the safety of the public;
Marginal note:1991, c. 43, s. 18
(2) Paragraph 202.16(1)(c) of the French version of the Act is replaced by the following:
c) la détention de l’accusé dans un hôpital ou un autre lieu approprié choisi par elle, sous réserve des modalités qu’elle estime indiquées.
25. The Act is amended by adding the following after section 202.16:
High-Risk Accused
Marginal note:Application to court martial
202.161 (1) If a court martial makes a finding under subsection 202.14(1) that an accused person is not responsible on account of mental disorder and it has not terminated its proceedings in respect of the accused person, the Director of Military Prosecutions may make an application to the court martial for a finding that the accused person is a high-risk accused.
Marginal note:Application to Chief Military Judge
(2) If the court martial has terminated its proceedings in respect of the accused person, the Director of Military Prosecutions may make the application to the Chief Military Judge. On receipt of the application, the Chief Military Judge shall cause the Court Martial Administrator to convene a Standing Court Martial.
Marginal note:Restriction
(3) No application shall be made under subsection (1) or (2) if a disposition has been made to release the accused person from custody without conditions or to discharge the accused person absolutely.
Marginal note:Finding
(4) The court martial referred to in subsection (1) or (2) may, at the conclusion of a hearing, find the accused person to be a high-risk accused if the accused person has been found not responsible on account of mental disorder for a serious personal injury offence, the accused person was 18 years of age or more at the time of the commission of the offence and
(a) the court martial is satisfied that there is a substantial likelihood that the accused person will use violence that could endanger the life or safety of another person; or
(b) the court martial is of the opinion that the acts that constitute the offence were of such a brutal nature as to indicate a risk of grave physical or psychological harm to another person.
Definition of “serious personal injury offence”
(5) For the purposes of subsection (4), “serious personal injury offence” means
(a) a serious offence, or an offence referred to in section 77, 86, 87, 92, 95, 113, 120, 124 or 127, involving
(i) the use or attempted use of violence against another person, or
(ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage upon another person; or
(b) an offence referred to in section 151, 152, 153, 153.1, 155, 160, 170, 171, 172, 271, 272 or 273 of the Criminal Code that is punishable under section 130 or an attempt to commit such an offence.
Marginal note:Factors to consider
(6) In deciding whether to find that the accused person is a high-risk accused, the court martial shall consider all relevant evidence, including
(a) the nature and circumstances of the offence;
(b) any pattern of repetitive behaviour of which the offence forms a part;
(c) the accused person’s current mental condition;
(d) the past and expected course of the accused person’s treatment, including the accused person’s willingness to follow treatment; and
(e) the opinions of experts who have examined the accused person.
Marginal note:Detention of high-risk accused person
(7) If the court martial finds the accused person to be a high-risk accused, the court martial shall make a disposition under paragraph 202.16(1)(c), but the accused person’s detention must not be subject to any condition that would permit the accused person to be absent from the hospital or other appropriate place unless
(a) it is appropriate, in the opinion of the person in charge of the hospital or other appropriate place, for the accused person to be absent from the hospital or place for medical reasons or for any purpose that is necessary for the accused person’s treatment, if the accused person is escorted by a person who is authorized by the person in charge of the hospital or place; and
(b) a structured plan has been prepared to address any risk related to the accused person’s absence and, as a result, that absence will not present an undue risk to the public.
Marginal note:Assessment order
(8) Subject to regulations, if the court martial has reasonable grounds to believe that evidence of the mental condition of an accused person is necessary for the purpose of determining the appropriate disposition to be made under this section, the court martial may make an order for an assessment of the accused person.
Marginal note:Referral to court martial for review
202.162 (1) If a Review Board, in exercising a power under section 202.25, decides to refer to a court martial for review under subsection 672.84(1) of the Criminal Code a finding that an accused person is a high-risk accused, the Review Board shall, immediately after making the decision, cause a copy of it to be sent to the Chief Military Judge.
Marginal note:Convening court martial
(2) On receipt of a copy of the decision, the Chief Military Judge shall cause the Court Martial Administrator to convene a Standing Court Martial to review the finding.
Marginal note:Review of finding by court martial
(3) The court martial shall, at the conclusion of a hearing, revoke the finding if the court martial is satisfied that there is not a substantial likelihood that the accused person will use violence that could endanger the life or safety of another person, in which case sections 202.15 and 202.21 apply as if the court martial has made a finding of not responsible on account of mental disorder.
Marginal note:Finding not revoked
(4) If the court martial does not revoke the finding, it shall immediately send to the Review Board, in original or copied form, a transcript of the hearing, any other document or information related to the hearing, and all exhibits filed with it, if the transcript, document, information or exhibits are in its possession.
Marginal note:Assessment order
(5) Subject to regulations, if the court martial has reasonable grounds to believe that evidence of the mental condition of the accused person is necessary for the purpose of determining whether to revoke the finding, the court martial may make an order for an assessment of the accused person.
26. The Act is amended by adding the following after section 202.2:
Marginal note:Procedure at disposition hearing
202.201 (1) A hearing by a court martial to make or review a disposition in respect of an accused person shall be held in accordance with this section and the regulations.
Marginal note:Hearing to be informal
(2) The hearing may be conducted in as informal a manner as is appropriate in the circumstances.
Marginal note:Interested person may be party
(3) The court martial may designate as a party any person who has a substantial interest in protecting the accused person’s interests, if the court martial is of the opinion that it is just to do so.
Marginal note:Notice of hearing — parties
(4) The court martial shall give notice of the hearing to the parties.
Marginal note:Notice of hearing — victim
(5) The court martial shall, at the request of a victim of the offence, give the victim notice of the hearing and of the relevant provisions of this Act.
Marginal note:Notice of release from custody and intended place of residence
(6) If the accused person is released from custody without conditions under paragraph 202.16(1)(a) or with conditions under paragraph 201(1)(a) or 202.16(1)(b), a notice of the release and the accused person’s intended place of residence shall, at the victim’s request, be given to the victim within the time and in the manner fixed by regulations.
Marginal note:Order excluding public
(7) If the court martial considers it to be in the accused person’s best interests and not contrary to the public interest, it may order the public or any members of the public to be excluded from the hearing or any part of it.
Marginal note:Right to counsel
(8) The accused person or any other party has the right to be represented by counsel.
Marginal note:Assigning counsel
(9) A court martial shall, either before or at the time of the hearing of an accused person who is not represented by counsel, direct that counsel be provided by the Director of Defence Counsel Services if the accused person has been found unfit to stand trial or the interests of military justice require that counsel be provided.
Marginal note:Right of accused person to be present
(10) Subject to subsection (11), the accused person has the right to be present during the entire hearing.
Marginal note:Removal or absence of accused person
(11) The court martial may permit the accused person to be absent during the entire hearing or any part of it on any conditions that the court martial considers appropriate. The court martial may also cause the accused person to be removed and barred from re-entry for the entire hearing or any part of it for any of the following reasons:
(a) the accused person is interrupting the hearing and it is not feasible to continue it in the accused person’s presence;
(b) the court martial is satisfied that the accused person’s presence would likely endanger the life or safety of another person or would seriously impair the treatment or recovery of the accused person; or
(c) the court martial is satisfied that the accused person should not be present for the hearing of evidence, oral or written submissions, or the cross-examination of any witness respecting the existence of grounds for removing the accused person under paragraph (b).
Marginal note:Rights of parties at hearing
(12) Any party may adduce evidence, make oral or written submissions, call witnesses and cross-examine any witness called by any other party and, on application, cross-examine any person who made an assessment report that was submitted in writing to the court martial.
Marginal note:Witnesses
(13) A party may not compel the attendance of witnesses, but may request the court martial to do so.
Marginal note:Video links
(14) If the accused person agrees, the court martial may permit them to appear by closed-circuit television or any other means that allows the court martial and the accused person to engage in simultaneous visual and oral communication, for any part of the hearing, so long as the accused person is given the opportunity to communicate privately with counsel if they are represented by counsel.
Marginal note:Determination of mental condition of accused person
(15) A court martial that reviews a disposition shall, on receipt of an assessment report, determine if there has been any change in the accused person’s mental condition since the disposition was made or last reviewed that may provide grounds for the accused person’s release from custody under section 202.16. If the court martial determines that there has been such a change, it shall notify every victim of the offence that they may prepare a statement.
Marginal note:Victim impact statement
(16) For the purpose of making or reviewing a disposition in respect of an accused person, a court martial shall consider the statement of any victim of the offence describing the harm done to, or loss suffered by, the victim arising from the commission of the offence.
Marginal note:Procedure
(17) A victim’s statement must be prepared in the form, and filed in accordance with the procedures, provided for by regulations made by the Governor in Council.
Marginal note:Presentation of victim statement
(18) Unless the court martial considers that it would not be in the best interests of the administration of military justice, the court martial shall, at the victim’s request, permit the victim to read their statement or to present the statement in any other manner that the court martial considers appropriate.
Marginal note:Consideration by court martial
(19) Whether or not a statement has been prepared and filed, the court martial may consider any other evidence concerning any victim of the offence for the purpose of making or reviewing the disposition.
Marginal note:Copy of statement
(20) The Court Martial Administrator shall, as soon as feasible after receiving a victim’s statement, ensure that a copy is provided to the prosecutor and to the accused person or their counsel.
Marginal note:Inquiry by court martial
(21) As soon as feasible after a finding of not responsible on account of mental disorder is made and before making a disposition, the court martial shall inquire of the prosecutor or a victim of the offence, or any person representing a victim of the offence, whether the victim has been advised that they may prepare a statement.
Marginal note:Adjournment
(22) On application of the prosecutor or a victim or on its own motion, the court martial may adjourn the hearing to permit a victim to prepare a statement or to present evidence referred to in subsection (19) if it is satisfied that the adjournment would not interfere with the proper administration of military justice.
Marginal note:Definitions
(23) The following definitions apply in this section.
“common-law partner”
« conjoint de fait »
“common-law partner” means, in relation to an individual, a person who is cohabiting with the individual in a conjugal relationship, having so cohabited for a period of at least one year.
“victim”
« victime »
“victim”, in relation to an offence, means
(a) a person to whom harm was done or who suffered loss as a direct result of the commission of the offence; and
(b) if the person described in paragraph (a) is dead, ill or otherwise incapable of making a statement describing the harm done to, or loss suffered by, the person arising from the commission of the offence, the spouse or common-law partner or any relative of that person, anyone who has in law or fact the custody of that person or is responsible for the care or support of that person or any of their dependants.
Marginal note:Additional conditions — safety and security
202.202 If a court martial holds a hearing referred to in section 202.201, the court martial shall consider whether it is desirable, in the interests of the safety and security of any person, particularly a victim of or witness to the offence or a justice system participant, to include as a condition of the disposition that the accused
(a) abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the disposition, or refrain from going to any place specified in the disposition; or
(b) comply with any other condition specified in the disposition that the court martial considers necessary to ensure the safety and security of those persons.
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