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Criminal Code (R.S.C., 1985, c. C-46)

Full Document:  

Act current to 2022-06-20 and last amended on 2022-06-20. Previous Versions

PART XX.1Mental Disorder (continued)

Disposition Hearings (continued)

Marginal note:Status quo pending Review Board hearing

  •  (1) If the court does not make a disposition in respect of the accused at a disposition hearing, any order for the detention of the accused or any release order, appearance notice, summons or undertaking in respect of the accused that is in force at the time the verdict of not criminally responsible on account of mental disorder or unfit to stand trial is rendered continues in force, subject to its terms, until the Review Board makes a disposition.

  • Marginal note:Variation

    (2) Despite subsection (1), a court may, pending a disposition by the Review Board in respect of the accused, on cause being shown, vacate the detention order, release order, appearance notice, summons or undertaking referred to in that subsection, and make any other order for the detention of the accused or any other release order that the court considers to be appropriate in the circumstances, including an order directing that the accused be detained in custody in a hospital.

Marginal note:Review Board to make disposition where court does not

  •  (1) Where a verdict of not criminally responsible on account of mental disorder or unfit to stand trial is rendered and the court makes no disposition in respect of an accused, the Review Board shall, as soon as is practicable but not later than forty-five days after the verdict was rendered, hold a hearing and make a disposition.

  • Marginal note:Extension of time for hearing

    (2) Where the court is satisfied that there are exceptional circumstances that warrant it, the court may extend the time for holding a hearing under subsection (1) to a maximum of ninety days after the verdict was rendered.

  • Marginal note:Disposition made by court

    (3) Where a court makes a disposition under section 672.54 other than an absolute discharge in respect of an accused, the Review Board shall, not later than ninety days after the disposition was made, hold a hearing and make a disposition in respect of the accused.

  • Marginal note:Exception — high-risk accused

    (4) Despite subsections (1) to (3), if the court makes a disposition under subsection 672.64(3), the Review Board shall, not later than 45 days after the day on which the disposition is made, hold a hearing and make a disposition under paragraph 672.54(c), subject to the restrictions set out in that subsection.

  • Marginal note:Extension of time for hearing

    (5) If the court is satisfied that there are exceptional circumstances that warrant it, the court may extend the time for holding a hearing under subsection (4) to a maximum of 90 days after the day on which the disposition is made.

  • 1991, c. 43, s. 4
  • 2005, c. 22, ss. 15, 42(F)
  • 2014, c. 6, s. 6

Marginal note:Review Board to determine fitness

  •  (1) Where a Review Board holds a hearing to make or review a disposition in respect of an accused who has been found unfit to stand trial, it shall determine whether in its opinion the accused is fit to stand trial at the time of the hearing.

  • Marginal note:Review Board shall send accused to court

    (2) If a Review Board determines that the accused is fit to stand trial, it shall order that the accused be sent back to court, and the court shall try the issue and render a verdict.

  • Marginal note:Chairperson may send accused to court

    (3) The chairperson of a Review Board may, with the consent of the accused and the person in charge of the hospital where an accused is being detained, order that the accused be sent back to court for trial of the issue of whether the accused is unfit to stand trial, where the chairperson is of the opinion that

    • (a) the accused is fit to stand trial; and

    • (b) the Review Board will not hold a hearing to make or review a disposition in respect of the accused within a reasonable period.

  • 1991, c. 43, s. 4
  • 2005, c. 22, s. 42(F)

Marginal note:Continued detention in hospital

  •  (1) In a disposition made pursuant to section 672.47 the Review Board or chairperson may require the accused to continue to be detained in a hospital until the court determines whether the accused is fit to stand trial, if the Review Board or chairperson has reasonable grounds to believe that the accused would become unfit to stand trial if released.

  • Marginal note:Copy of disposition to be sent to court

    (2) The Review Board or chairperson shall send a copy of a disposition made pursuant to section 672.47 without delay to the court having jurisdiction over the accused and to the Attorney General of the province where the accused is to be tried.

  • 1991, c. 43, s. 4

Marginal note:Procedure at disposition hearing

  •  (1) A hearing held by a court or Review Board to make or review a disposition in respect of an accused, including a hearing referred to in subsection 672.84(1) or (3), shall be held in accordance with this section.

  • 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:Attorneys General may be parties

    (3) On application, the court or Review Board shall designate as a party the Attorney General of the province where the disposition is to be made and, where an accused is transferred from another province, the Attorney General of the province from which the accused is transferred.

  • Marginal note:Interested person may be a party

    (4) The court or Review Board may designate as a party any person who has a substantial interest in protecting the interests of the accused, if the court or Review Board is of the opinion that it is just to do so.

  • Marginal note:Notice of hearing

    (5) Notice of the hearing shall be given to the parties, the Attorney General of the province where the disposition is to be made and, where the accused is transferred to another province, the Attorney General of the province from which the accused is transferred, within the time and in the manner prescribed, or within the time and in the manner fixed by the rules of the court or Review Board.

  • Marginal note:Notice

    (5.1) At the victim’s request, notice of the hearing and of the relevant provisions of the Act shall be given to the victim within the time and in the manner fixed by the rules of the court or Review Board.

  • Marginal note:Notice of discharge and intended place of residence

    (5.2) If the accused is discharged absolutely under paragraph 672.54(a) or conditionally under paragraph 672.54(b), a notice of the discharge and accused’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 the rules of the court or Review Board.

  • Marginal note:Order excluding the public

    (6) Where the court or Review Board considers it to be in the best interests of the accused and not contrary to the public interest, the court or Review Board may order the public or any members of the public to be excluded from the hearing or any part of the hearing.

  • Marginal note:Right to counsel

    (7) The accused or any other party has the right to be represented by counsel.

  • Marginal note:Assigning counsel

    (8) If an accused is not represented by counsel, the court or Review Board shall, either before or at the time of the hearing, assign counsel to act for any accused

    • (a) who has been found unfit to stand trial; or

    • (b) wherever the interests of justice so require.

  • Marginal note:Counsel fees and disbursements

    (8.1) Where counsel is assigned pursuant to subsection (8) and legal aid is not granted to the accused pursuant to a provincial legal aid program, the fees and disbursements of counsel shall be paid by the Attorney General to the extent that the accused is unable to pay them.

  • Marginal note:Taxation of fees and disbursements

    (8.2) Where counsel and the Attorney General cannot agree on the fees or disbursements of counsel, the Attorney General or the counsel may apply to the registrar of the court and the registrar may tax the disputed fees and disbursements.

  • Marginal note:Right of accused to be present

    (9) Subject to subsection (10), the accused has the right to be present during the whole of the hearing.

  • Marginal note:Removal or absence of accused

    (10) The court or the chairperson of the Review Board may

    • (a) permit the accused to be absent during the whole or any part of the hearing on such conditions as the court or chairperson considers proper; or

    • (b) cause the accused to be removed and barred from re-entry for the whole or any part of the hearing

      • (i) where the accused interrupts the hearing so that to continue in the presence of the accused would not be feasible,

      • (ii) on being satisfied that failure to do so would likely endanger the life or safety of another person or would seriously impair the treatment or recovery of the accused, or

      • (iii) in order to hear, in the absence of the accused, evidence, oral or written submissions, or the cross-examination of any witness concerning whether grounds exist for removing the accused pursuant to subparagraph (ii).

  • Marginal note:Rights of parties at hearing

    (11) 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 to the court or Review Board in writing.

  • Marginal note:Request to compel attendance of witnesses

    (12) A party may not compel the attendance of witnesses, but may request the court or the chairperson of the Review Board to do so.

  • Marginal note:Video links

    (13) If the accused so agrees, the court or the chairperson of the Review Board may permit the accused to appear by closed-circuit television or videoconference for any part of the hearing.

  • Marginal note:Adjournment

    (13.1) The Review Board may adjourn the hearing for a period not exceeding thirty days if necessary for the purpose of ensuring that relevant information is available to permit it to make or review a disposition or for any other sufficient reason.

  • Marginal note:Determination of mental condition of the accused

    (13.2) On receiving an assessment report, the court or Review Board shall determine whether, since the last time the disposition in respect of the accused was made or reviewed there has been any change in the mental condition of the accused that may provide grounds for the discharge of the accused under paragraph 672.54(a) or (b) and, if there has been such a change, the court or Review Board shall notify every victim of the offence that they are entitled to file a statement in accordance with subsection (14).

  • Marginal note:Notice to victims — referral of finding to court

    (13.3) If the Review Board refers to the court for review under subsection 672.84(1) a finding that an accused is a high-risk accused, it shall notify every victim of the offence that they are entitled to file a statement with the court in accordance with subsection (14).

  • Marginal note:Victim impact statement

    (14) A victim of the offence may prepare and file with the court or Review Board a written statement describing the physical or emotional harm, property damage or economic loss suffered by the victim as the result of the commission of the offence and the impact of the offence on the victim. Form 48.2 in Part XXVIII, or a form approved by the lieutenant governor in council of the province in which the court or Review Board is exercising its jurisdiction, must be used for this purpose.

  • Marginal note:Copy of statement

    (15) The court or Review Board shall ensure that a copy of any statement filed in accordance with subsection (14) is provided to the accused or counsel for the accused, and the prosecutor, as soon as practicable after a verdict of not criminally responsible on account of mental disorder is rendered in respect of the offence.

  • Marginal note:Presentation of victim statement

    (15.1) The court or Review Board shall, at the request of a victim, permit the victim to read a statement prepared and filed in accordance with subsection (14), or to present the statement in any other manner that the court or Review Board considers appropriate, unless the court or Review Board is of the opinion that the reading or presentation of the statement would interfere with the proper administration of justice.

  • Marginal note:Inquiry by court or Review Board

    (15.2) The court or Review Board shall, as soon as practicable after a verdict of not criminally responsible on account of mental disorder is rendered in respect of an offence and before making a disposition under section 672.45, 672.47 or 672.64, 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 of the opportunity to prepare a statement referred to in subsection (14).

  • Marginal note:Adjournment

    (15.3) On application of the prosecutor or a victim or of its own motion, the court or Review Board may adjourn the hearing held under section 672.45, 672.47 or 672.64 to permit the victim to prepare a statement referred to in subsection (14) if the court or Review Board is satisfied that the adjournment would not interfere with the proper administration of justice.

  • (16) [Repealed, 2015, c. 13, s. 22]

  • 1991, c. 43, s. 4
  • 1997, c. 18, s. 84
  • 1999, c. 25, s. 11(Preamble)
  • 2005, c. 22, ss. 16, 42(F)
  • 2014, c. 6, s. 7
  • 2015, c. 13, s. 22
  • 2019, c. 25, s. 277

Marginal note:Order restricting publication — sexual offences

  •  (1) Where a Review Board holds a hearing referred to in section 672.5 in respect of an accused who has been declared not crimi­nally responsible on account of mental disorder or unfit to stand trial for an offence referred to in subsection 486.4(1), the Review Board shall make an order directing that any information that could identify a victim, or a witness who is under the age of eighteen years, shall not be published in any document or broadcast or transmitted in any way.

  • Marginal note:Order restricting publication — child pornography

    (2) Where a Review Board holds a hearing referred to in section 672.5 in respect of an accused who has been declared not criminally responsible on account of mental disorder or unfit to stand trial for an offence referred to in section 163.1, a Review Board shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of section 163.1, shall not be published in any document or broadcast or transmitted in any way.

  • Marginal note:Order restricting publication — other offences

    (3) Where a Review Board holds a hearing referred to in section 672.5 in respect of an accused who has been declared not criminally responsible on account of mental disorder or unfit to stand trial for an offence other than the offences referred to in subsection (1) or (2), on application of the prosecutor, a victim or a witness, the Review Board may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the Review Board is satisfied that the order is necessary for the proper administration of justice.

  • Marginal note:Order restricting publication

    (4) An order made under any of subsections (1) to (3) does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.

  • Marginal note:Application and notice

    (5) An applicant for an order under subsection (3) shall

    • (a) apply in writing to the Review Board; and

    • (b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the Review Board specifies.

  • Marginal note:Grounds

    (6) An applicant for an order under subsection (3) shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.

  • Marginal note:Hearing may be held

    (7) The Review Board may hold a hearing to determine whether an order under subsection (3) should be made, and the hearing may be in private.

  • Marginal note:Factors to be considered

    (8) In determining whether to make an order under subsection (3), the Review Board shall consider

    • (a) the right to a fair and public hearing;

    • (b) whether there is a real and substantial risk that the victim or witness would suffer significant harm if their identity were disclosed;

    • (c) whether the victim or witness needs the order for their security or to protect them from intimidation or retaliation;

    • (d) society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process;

    • (e) whether effective alternatives are available to protect the identity of the victim or witness;

    • (f) the salutary and deleterious effects of the proposed order;

    • (g) the impact of the proposed order on the freedom of expression of those affected by it; and

    • (h) any other factor that the Review Board considers relevant.

  • Marginal note:Conditions

    (9) An order made under subsection (3) may be subject to any conditions that the Review Board thinks fit.

  • Marginal note:Publication of application prohibited

    (10) Unless the Review Board refuses to make an order under subsection (3), no person shall publish in any document or broadcast or transmit in any way

    • (a) the contents of an application;

    • (b) any evidence taken, information given or submissions made at a hearing under subsection (7); or

    • (c) any other information that could identify the person to whom the application relates as a victim or witness in the proceedings.

  • Marginal note:Offence

    (11) Every person who fails to comply with an order made under any of subsections (1) to (3) is guilty of an offence punishable on summary conviction.

  • Marginal note:Application of order

    (12) For greater certainty, an order referred to in subsection (11) also prohibits, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim or witness whose identity is protected by the order.

  • 2005, c. 22, ss. 17, 64
 
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