Criminal Code (R.S.C., 1985, c. C-46)

Marginal note:Postponing trial of issue

• 672.25 (1) The court shall postpone directing the trial of the issue of fitness of an accused in proceedings for an offence for which the accused may be prosecuted by indictment or that is punishable on summary conviction, until the prosecutor has elected to proceed by way of indictment or summary conviction.

• Marginal note:Idem

  (2) The court may postpone directing the trial of the issue of fitness of an accused

  • (a) where the issue arises before the close of the case for the prosecution at a preliminary inquiry, until a time that is not later than the time the accused is called on to answer to the charge; or

  • (b) where the issue arises before the close of the case for the prosecution at trial, until a time not later than the opening of the case for the defence or, on motion of the accused, any later time that the court may direct.

Marginal note:Trial of issue by judge and jury

672.26 Where an accused is tried or is to be tried before a court composed of a judge and jury,

• (a) if the judge directs that the issue of fitness of the accused be tried before the accused is given in charge to a jury for trial on the indictment, a jury composed of the number of jurors required in respect of the indictment in the province where the trial is to be held shall be sworn to try that issue and, with the consent of the accused, the issues to be tried on the indictment; and

• (b) if the judge directs that the issue of fitness of the accused be tried after the accused has been given in charge to a jury for trial on the indictment, the jury shall be sworn to try that issue in addition to the issues in respect of which it is already sworn.

Marginal note:Trial of issue by court

672.27 The court shall try the issue of fitness of an accused and render a verdict where the issue arises

• (a) in respect of an accused who is tried or is to be tried before a court other than a court composed of a judge and jury; or

• (b) before a court at a preliminary inquiry or at any other stage of the proceedings.

Marginal note:Proceeding continues where accused is fit

672.28 Where the verdict on trial of the issue is that an accused is fit to stand trial, the arraignment, preliminary inquiry, trial or other stage of the proceeding shall continue as if the issue of fitness of the accused had never arisen.

Marginal note:Where continued detention in custody

672.29 Where an accused is detained in custody on delivery of a verdict that the accused is fit to stand trial, the court may order the accused to be detained in a hospital until the completion of the trial, if the court has reasonable grounds to believe that the accused would become unfit to stand trial if released.

Marginal note:Acquittal

672.3 Where the court has postponed directing the trial of the issue of fitness of an accused pursuant to subsection 672.25(2) and the accused is discharged or acquitted before the issue is tried, it shall not be tried.

Marginal note:Verdict of unfit to stand trial

672.31 Where the verdict on trial of the issue is that an accused is unfit to stand trial, any plea that has been made shall be set aside and any jury shall be discharged.

Marginal note:Subsequent proceedings

• 672.32 (1) A verdict of unfit to stand trial shall not prevent the accused from being tried subsequently where the accused becomes fit to stand trial.

• Marginal note:Burden of proof

  (2) The burden of proof that the accused has subsequently become fit to stand trial is on the party who asserts it, and is discharged by proof on the balance of probabilities.

Marginal note:Prima facie case to be made every two years

• 672.33 (1) The court that has jurisdiction in respect of the offence charged against an accused who is found unfit to stand trial shall hold an inquiry, not later than two years after the verdict is rendered and every two years thereafter until the accused is acquitted pursuant to subsection (6) or tried, to decide whether sufficient evidence can be adduced at that time to put the accused on trial.

• Marginal note:Extension of time for holding inquiry

  (1.1) Despite subsection (1), the court may extend the period for holding an inquiry where it is satisfied on the basis of an application by the prosecutor or the accused that the extension is necessary for the proper administration of justice.

• Marginal note:Court may order inquiry to be held

  (2) On application of the accused, the court may order an inquiry under this section to be held at any time if it is satisfied, on the basis of the application and any written material submitted by the accused, that there is reason to doubt that there is a prima facie case against the accused.

• Marginal note:Burden of proof

  (3) At an inquiry under this section, the burden of proof that sufficient evidence can be adduced to put the accused on trial is on the prosecutor.

• Marginal note:Admissible evidence at an inquiry

  (4) In an inquiry under this section, the court shall admit as evidence

  • (a) any affidavit containing evidence that would be admissible if given by the person making the affidavit as a witness in court; or

  • (b) any certified copy of the oral testimony given at a previous inquiry or hearing held before a court in respect of the offence with which the accused is charged.

• Marginal note:Conduct of inquiry

  (5) The court may determine the manner in which an inquiry under this section is conducted and may follow the practices and procedures in respect of a preliminary inquiry under Part XVIII where it concludes that the interests of justice so require.

• Marginal note:Where prima facie case not made

  (6) Where, on the completion of an inquiry under this section, the court is satisfied that sufficient evidence cannot be adduced to put the accused on trial, the court shall acquit the accused.

Verdict of Not Criminally Responsible on Account of Mental Disorder

Marginal note:Verdict of not criminally responsible on account of mental disorder

672.34 Where the jury, or the judge or provincial court judge where there is no jury, finds that an 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 subsection 16(1), the jury or the 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.

Marginal note:Effect of verdict of not criminally responsible on account of mental disorder

672.35 Where a verdict of not criminally responsible on account of mental disorder is rendered, the accused shall not be found guilty or convicted of the offence, but

• (a) the accused may plead autrefois acquit in respect of any subsequent charge relating to that offence;

• (b) any court may take the verdict into account in considering an application for judicial interim release or in considering what dispositions to make or sentence to impose for any other offence; and

• (c) the Parole Board of Canada or any provincial parole board may take the verdict into account in considering an application by the accused for parole or for a record suspension under the Criminal Records Act in respect of any other offence.

Marginal note:Verdict not a previous conviction

672.36 A verdict of not criminally responsible on account of mental disorder is not a previous conviction for the purposes of any offence under any Act of Parliament for which a greater punishment is provided by reason of previous convictions.

Marginal note:Definition of application for federal employment

• 672.37 (1) In this section, application for federal employment means an application form relating to

  • (a) employment in any department, as defined in section 2 of the Financial Administration Act;

  • (b) employment by any Crown corporation as defined in subsection 83(1) of the Financial Administration Act;

  • (c) enrolment in the Canadian Forces; or

  • (d) employment in connection with the operation of any work, undertaking or business that is within the legislative authority of Parliament.

• Marginal note:Application for federal employment

  (2) No application for federal employment shall contain any question that requires the applicant to disclose any charge or finding that the applicant committed an offence that resulted in a finding or a verdict of not criminally responsible on account of mental disorder if the applicant was discharged absolutely or is no longer subject to any disposition in respect of that offence.

• Marginal note:Punishment

  (3) Any person who uses or authorizes the use of an application for federal employment that contravenes subsection (2) is guilty of an offence punishable on summary conviction.

Review Boards

Marginal note:Review Boards to be established

• 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.

• Marginal note:Treated as provincial Board

  (2) A Review Board shall be treated as having been established under the laws of the province.

• Marginal note:Personal liability

  (3) No member of a Review Board is personally liable for any act done in good faith in the exercise of the member’s powers or the performance of the member’s duties and functions or for any default or neglect in good faith in the exercise of those powers or the performance of those duties and functions.

Marginal note:Members of Review Board

672.39 A Review Board must have at least one member who is entitled under the laws of a province to practise psychiatry and, where only one member is so entitled, at least one other member must have training and experience in the field of mental health, and be entitled under the laws of a province to practise medicine or psychology.

Marginal note:Chairperson of a Review Board

• 672.4 (1) Subject to subsection (2), the chairperson of a Review Board shall be a judge of the Federal Court or of a superior, district or county court of a province, or a person who is qualified for appointment to, or has retired from, such a judicial office.

• Marginal note:Transitional

  (2) Where the chairperson of a Review Board that was established before the coming into force of subsection (1) is not a judge or other person referred to therein, the chairperson may continue to act until the expiration of his or her term of office if at least one other member of the Review Board is a judge or other person referred to in subsection (1) or is a member of the bar of the province.

Marginal note:Quorum of Review Board

• 672.41 (1) Subject to subsection (2), the quorum of a Review Board is constituted by the chairperson, a member who is entitled under the laws of a province to practise psychiatry, and any other member.

• Marginal note:Transitional

  (2) Where the chairperson of a Review Board that was established before the coming into force of this section is not a judge or other person referred to in subsection 672.4(1), the quorum of the Review Board is constituted by the chairperson, a member who is entitled under the laws of a province to practise psychiatry, and a member who is a person referred to in that subsection or a member of the bar of the province.

Marginal note:Majority vote

672.42 A decision of a majority of the members present and voting is the decision of a Review Board.

Marginal note:Powers of Review Boards

672.43 At a hearing held by a Review Board to make a disposition or review a disposition in respect of an accused, the chairperson has all the powers that are conferred by sections 4 and 5 of the Inquiries Act on persons appointed as commissioners under Part I of that Act.

Marginal note:Rules of Review Board

• 672.44 (1) A Review Board may, subject to the approval of the lieutenant governor in council of the province, make rules providing for the practice and procedure before the Review Board.

• Marginal note:Application and publication of rules

  (2) The rules made by a Review Board under subsection (1) apply to any proceeding within its jurisdiction, and shall be published in the Canada Gazette.

• Marginal note:Regulations

  (3) Notwithstanding anything in this section, the Governor in Council may make regulations to provide for the practice and procedure before Review Boards, in particular to make the rules of Review Boards uniform, and all regulations made under this subsection prevail over any rules made under subsection (1).

Disposition Hearings

Marginal note:Hearing to be held by a court

• 672.45 (1) Where a verdict of not criminally responsible on account of mental disorder or unfit to stand trial is rendered in respect of an accused, the court may of its own motion, and shall on application by the accused or the prosecutor, hold a disposition hearing.

• Marginal note:Transmittal of transcript to Review Board

  (1.1) If the court does not hold a hearing under subsection (1), it shall send without delay, following the verdict, in original or copied form, any transcript of the court proceedings in respect of the accused, any other document or information related to the proceedings, and all exhibits filed with it, to the Review Board that has jurisdiction in respect of the matter, if the transcript, document, information or exhibits are in its possession.

• Marginal note:Disposition to be made

  (2) At a disposition hearing, the court shall make a disposition in respect of the accused, if it is satisfied that it can readily do so and that a disposition should be made without delay.