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COMMON QUESTIONS ABOUT THE BRITISH COLUMBIA REVIEW BOARD

Q.    What is the British Columbia Review Board?

The British Columbia Review Board is an administrative tribunal, established by the Criminal Code of Canada. Its purpose is to make decisions and orders concerning the liberty of individuals whom courts have found to be not criminally responsible for acts committed while they were suffering from a mental disorder, or whose mental disorder makes them unfit to stand trial on criminal charges.

Federal and provincial legislatures create administrative tribunals such as the Review Board when there is a need for an adjudicative body, rather than a court or a government department, to make independent decisions, in areas requiring specialized expertise.

Administrative tribunals, and the subjects they adjudicate, vary according to the statutes that create them. Some administrative tribunals, like Commissions of Inquiry, only investigate and make recommendations. Others, like provincial utilities commissions or the federal CRTC, are called “regulatory tribunals”; their decisions focus on socio-economic activities and they address matters such as licensing and fixing consumer rates. Yet other administrative tribunals, like Human Rights Tribunals, are called “adjudicative” because they determine specific disputes in a way that most people would recognize as being similar to court adjudication (though usually more informal). In each case, the administrative tribunal is established to provide an independent, effective, informal and efficient forum for investigation and/or decision-making in a specialized subject area.

The British Columbia Review Board is a specialized adjudicative administrative tribunal.

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. The Review Board also customarily includes “other” members whose qualifications are unspecified, typically (in B.C.) individuals with experience in mental health, medicine, psychology, social work or criminology.

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. Review Board panels are not limited to the three persons just listed, but the British Columbia Review Board generally convenes in panels of three.

Q.     May I attend a Review Board hearing?

A.     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 phone number for the Registry is shown in the Contact Numbers page.

Q.     Where are Review Board hearings held?

A.     Generally, hearings are held in the community where the accused resides. If the accused is in custody at the Forensic Psychiatric Hospital, the hearing will be held at the Hospital. If the accused resides in the Lower Mainland, the hearings will be held at the Review Board hearing room. The location for both of these hearing rooms is shown in the Contact Numbers page.

     The Review Board will hold hearings in various locations throughout the province if the accused does not reside in the Lower Mainland. It is best to contact the Registry should you wish to attend a hearing outside the Lower Mainland.

Q.     Want to know more?

To understand the Review Board’s role in how the criminal law treats mentally ill offenders, it is important to briefly trace its historical origins and development. The modern history of Part XX.1 of the Criminal Code commences with the English case of Rex v. Hadfield (1800).

James Hadfield fired a shot at King George III. He was subsequently found “not guilty” due to insanity at the time the act was committed. The criminal court of the day had two options: (1) release him to be free in the community because he had been “acquitted”, by reason of insanity, on charges of attempted murder and treason, or (2) return him whence he came (i.e., prison). Lord Kenyon, Chief Justice, in the following passage recognized that both options were undesirable:

…the prisoner for his own sake, and for the sake of society at large, must not be discharged; for this is a case which concerns every man of every station, from the King upon the throne to the beggar at the gate; people of both sexes and all ages may, in an unfortunate frantic hour, fall a sacrifice to this man, who is not under the guidance of sound reason; and therefore it is absolutely necessary for the safety of society that he should be properly disposed of, all mercy and humanity being shown to this most unfortunate creature. But for the sake of the community, undoubtedly he must somehow or other be taken care of, with all the attention and all the relief that can be afforded him…. For the present we can only remand him to the confinement he came from.

Hadfield was returned to prison, but as a result of the dilemma his case presented, the British Parliament passed the Criminal Lunatics Act (1800). This statute gave the Court the authority to commit an accused receiving the verdict “not guilty by reason of insanity” (NGRI) to “strict custody, in such place and in such manner as the court shall deem fit, until His Majesty’s Pleasure is known…”

The Criminal Lunatics Act enabled the hospitalization and treatment, rather than the punishment, of persons convicted of a crime while mentally ill. However, beyond the reference to the period of “strict custody” ending according to the Monarch’s “pleasure”, there were no time limits for the review of any individual’s case, and no criteria for his or her eventual release from the hospital or asylum.

The provisions of the Criminal LunaticsAct were incorporated into the first Canadian Criminal Code, passed in 1892. For the next 100 years, the verdict of “not guilty by reason of insanity”, the requirement for automatic “strict custody” following the verdict, and release according to “the pleasure of the lieutenant governor of the province”, remained virtually unchanged.

In 1969, Parliament added provisions to the Criminal Code encouraging the lieutenant governors to receive expert recommendations before making decisions about whether “NGRI acquittees” should remain in custody. The 10 lieutenant governors were given the power to appoint “boards of review” to periodically review the cases of patients in custody, and to make non-binding recommendations to the lieutenant governor about whether a patient should be released, and whether any release should be with or without conditions. Provinces such as British Columbia and Ontario , independently created their own “patients review boards” for the same purpose, described by one Ontario court as follows:

The whole purpose of the establishment of an advisory review board was to create an independent body, bringing to its task a considerable and varied expertise of its own, and likely to develop quickly an even greater expertise with the kind of problem assigned to it, with the hoped-for result that no one would be kept indefinitely in a mental institution, half-forgotten, and with his situation unreviewed except by the staff of the institution.

The “boards of review” were advisory only. They had no decision-making power. They could only make recommendations. Also, none of this changed the legal requirement that all persons found not guilty by reason of insanity (NGRI) were automatically placed in strict custody, and that any release ultimately depended on the discretion of the lieutenant governor, who was also free to take advice from other sources, most often the province’s Attorney General.

R. V. SWAIN

Mr. Swain, who had been found NGRI, challenged the Criminal Code provisions requiring automatic custody after an NGRI verdict, and release from such custody based on the lieutenant governor’s “pleasure”. He argued that this system was unjust and arbitrary, and breached ss. 7 and 9 of the Canadian Charter of Rights and Freedoms (“the Charter”):

7. Everyone has the right to life, liberty and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

9. Everyone has the right not to be arbitrarily detained or imprisoned.

The Supreme Court of Canada agreed with Swain’s arguments. The Court recognized that it is important to protect the public by preventing dangerous people from being discharged into society, but stated that the Criminal Code must do so in a way that respects the Charter rights of all persons who commit crimes due to mental disorder. The Court held that the then existing Criminal Code scheme breached the Charter in two fundamental ways.

First, the rules were “arbitrary” because they required judges to automatically place all persons found NGRI into strict custody. This failed to take account of individual circumstances, including those of persons who were no longer dangerous at the time of the verdict. As stated by the Court: “This detention order is automatic, without any rational standard for determining which individual insanity acquittees should be detained and which should be released”.

Second, for detention to be “indeterminate” – i.e., to depend on the unfettered discretion of the lieutenant governor was not consistent with “fundamental justice”. As noted by the Court: “There is no time limit within which the Lieutenant Governor must act ….In fact, the wording of the section does not require the Lieutenant Governor to ever make an order.”

The Supreme Court of Canada directed the federal Government to devise a new scheme to address the deficiencies identified in Swain. Parliament responded to the judgment in Swain by enacting Part XX.1 of the Criminal Code.

PART XX.1 OF THE CRIMINAL CODE : THE MENTAL DISORDER PROVISIONS

Part XX.1 of the Criminal Code came into force on February 5, 1992 . It enacted sweeping changes to the system for dealing with mentally disordered persons who break the criminal law. The main elements of Part XX.1 (Mental Disorder), which also apply (with minor modification) to youth under the Youth Criminal Justice Act, are described below.

A. The Review Board’s Mandate

Every administrative tribunal has a specific area of legal jurisdiction. A tribunal’s jurisdiction consists of the subject matter assigned by legislation as its mandate and the procedural rules and criteria to be applied in making its decisions.

The Review Board has been given the mandate to make decisions about one of the most important interests or values in our society: the liberty of an individual. Part XX.1 of the Criminal Code gives the Review Board the responsibility to make decisions about the liberty of a particular group of individuals – those charged with crimes who have been found by a court to be (a) unfit to stand trial, or (b) not criminally responsible by reason of mental disorder.

This 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.

B. Unfit to Stand Trial (U.S.T.)

Section 2 of the Criminal Code describes persons who are “unfit to stand trial”:

“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, if 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 he or she remains too ill to understand what the trial is about or to communicate with legal counsel. At the same time, the law recognizes that if an unfit accused subsequently becomes fit to stand trial, both the accused, and society, have a strong interest in ensuring that charges are disposed of finally and without delay.

The Review Board’s role is triggered once a court issues a verdict that an accused person is unfit to stand trial. The Review Board serves the purpose of ensuring that there is a specialized, periodic and independent review of all persons who have been found by a court to be unfit to stand trial.

If the Review Board concludes, at the time of its hearing, that 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 to stand trial, the person is not returned to Court. Instead, the person is either detained in custody or discharged into the community under certain conditions imposed by the Board.

C. Not Criminally Responsible by Reason of Mental Disorder (NCRMD)

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 “not criminally responsible by reason of mental disorder” (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”. The Criminal Code defines “mental disorder” as “a disease of the mind”. In the NCRMD verdict, the law is stating that 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. As the Supreme Court of Canada stated in R. v. Owen:

It is of central importance to the constitutional validity of this statutory arrangement that the individual, who by definition did not at the time of the offence appreciate what he or she was doing, or that it was wrong, be confined only for reasons of public protection, not punishment .

Part XX.1 of the Criminal Code recognizes that some persons who receive NCRMD verdicts may, by virtue of their illness, be dangerous after the verdict, while others will not. It addresses the Supreme Court of Canada’s criticism of the former law in R. v. Swain that because of the great variation in individual circumstances, it would be arbitrary to adopt an automatic rule that all such persons should either be released, or detained indefinitely. 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 his/her dangerousness. This assessment process is the core of the Review Board’s mandate.

D. Types of Review Board Hearings

The Review Board’s role lies at the heart of Part XX.1. The Review Board has replaced the Lieutenant Governor as the key legal decision-maker concerning mentally disordered persons in conflict with the criminal law. The Review Board has shared jurisdiction with the Court to make initial dispositions following the verdict; and exclusive power to conduct all further reviews thereafter until such time as the Review Board either absolutely discharges an NCR accused, or finds that a previously unfit accused is now fit to stand trial and should be returned to Court. Part XX.1 creates six triggers for Review Board hearings.

First Review Board Hearing – 45 days from verdict : Part XX.1 allows the Court issuing the NCRMD or unfit to stand trial verdict to (a) hold its own disposition hearing and to issue the initial disposition, or (b) to refer the first disposition to a hearing of the Review Board.

In practice, most courts defer to the Review Board to make the first disposition. In these cases, the Review Board must hold a hearing and make a disposition within 45 days of the verdict. The Court may impose any conditions for bail or detention of the person that are to apply in the meantime.

First Review Board Hearing – 90 days from verdict : If the Court conducts its own disposition hearing and makes an order of conditional discharge or custody, the Review Board must hold a hearing and review the Court’s disposition within 90 days of the verdict.

Mandatory Periodic Reviews : Part XX.1 addresses the need for ongoing periodic review, after the first disposition, as follows:

  • The Review Board must hold a hearing at least one every 12 months to review any previous disposition of conditional discharge or custody.
  • The Review Board must also hold a hearing and conduct a review in any of the following situations:
  • where the person in charge of the accused has increased the restrictions on the liberty of the accused significantly for a period exceeding seven days, and
  • where the person in charge of the accused (i.e., the forensic service) requests a review of the disposition

Discretionary Periodic Review : The Review Board has discretion to hold a hearing at any time, at the request of the accused or any other party (i.e. the accused, the Crown, or another designated party).

Placement Hearings for “dual status offenders : Where an NCRMD or unfit accused is detained in custody under a Review Board order, and is later convicted of a crime and sentenced to prison, the Review Board is required to hold a “placement hearing”. A placement hearing requires the Board to decide whether the accused should be detained in a hospital or in a prison. Accused persons subject to placement hearings are called “dual status offenders”.

E. Parties to Review Board Hearings

A “party” is a person with the right to receive notice of a court or administrative tribunal hearing, and the right to fully participate in the hearing (for example, the right to express a position, to give evidence, and to ask questions of other parties). The three parties that participate in most Review Board hearings are:

  • the NCRMD or unfit accused,
  • the Director of Adult or Youth Forensic Psychiatric Services (“Director”), and
  • the provincial Attorney General.

Lawyers or trained lay advocates represent all unfit accused, and most NCRMD accused, at Review Board hearings. These legal services are provided primarily by the Community Legal Assistance Society (CLAS). Where no counsel or advocate is available, the Criminal Code gives the Review Board the power to assign a lawyer for any accused who is unfit to stand trial, and for any NCRMD accused where the Chair determines this to be necessary to ensure a fair hearing.

The “Director” is almost always represented at the Review Board by one or both members of the accused person’s “treatment team” – i.e., the psychiatrist and case manager assigned to the accused in hospital or in the community. Occasionally, the Director will also have legal counsel attend Review Board hearings.

The provincial Attorney General is represented at most Review Board hearings, usually through a Crown Counsel lawyer from the Ministry of Attorney General, or through other lawyers contracted by Crown Counsel.

In addition to the accused, the Director and the Crown, other persons occasionally receive party status before the Review Board. For example, where a young person is found unfit or NCRMD, the Youth Criminal Justice Act requires the accused’s parents to receive separate party status where they attend the hearing or otherwise take an active interest in the proceeding. The Review Board also has a general discretion to designate as a party any person who has a substantial interest in protecting the interests of the accused. This may include the Director of a federal institution in cases where the accused is a “dual status offender”.

F. Disposition Orders That May be Made

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 NCR 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 the accused is a significant risk to the safety of the public, the accused 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.

Thus, 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)

While the Review Board must consider all three disposition options – absolute discharge, conditional discharge and custody - for every NCRMD accused, the Review Board is not permitted to absolutely discharge an unfit accused. As noted above, the Criminal Code is based on the view that it would not be appropriate to “absolutely discharge” a person, charged with a crime, who has 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 further 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 to put the accused on trial (called a “prima facie case”). 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 to stay the charges at this point. If the Crown continues to adduce sufficient evidence, the Review Board retains jurisdiction over the accused.

BALANCING LIBERTY AND PUBLIC SAFETY

Section 672.54 of the Criminal Code articulates the Review Board’s responsibilities to balance the interests of public safety and individual liberty. Every Review Board member must be familiar with this section, which lies at the heart of every Review Board hearing:

672.54: Where a court or Review Board makes a disposition pursuant to subsection 672.45(2) or section 672.47, it shall, taking into consideration the need to protect the public from dangerous persons, 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 the least onerous and least restrictive to the accused:

  • where a verdict of not criminally responsible on account of mental disorder has been rendered in respect of an 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;
  • by order, direct that the accused be discharged subject to such conditions as the court or Review Board considers appropriate; or
  • 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.

WINKO V. BRITISH COLUMBIA

Winko v. British Columbia is the leading judicial decision regarding the application of s. 672.54 to NCR accused.

In Winko, the Supreme Court of Canada ruled that the Review Board is required to grant an absolute discharge to an NCRMD accused unless the Review Board is satisfied that it is more likely than not, on the evidence, that the accused continues to pose a significant threat to the safety of the public. If the Review Board concludes that the accused is a significant threat to the safety of the public, the Review Board must choose the disposition – either conditional discharge or custody - that is “the least onerous and least restrictive to the accused”, consistent with protection of the public.

The judgment in Winko includes the following statements of law:

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 the NCR accused poses a significant threat to the safety of the public. Restrictions on his or her liberty can only be justified if, at the time of the hearing, the evidence before the court or Review Board shows that the NCR accused actually constitutes such a threat. The court or Review Board cannot avoid coming to a decision on this issue by stating, for example, that it is uncertain or cannot decide whether the NCR accused poses a significant threat to the safety of the public. If it cannot come to a decision with any certainty, then it has not found that the NCR accused poses a significant threat to the safety of the public.

If the court or 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 court or 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 the NCR accused be discharged subject to conditions the court or Review Board considers necessary, or it may direct that the NCR accused be detained in custody in a hospital, again subject to appropriate conditions.

When deciding whether to make an order for conditional discharge or for detention in a hospital, the court or Review Board must again consider the need to protect the public from dangerous persons, 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 least onerous and least restrictive to the NCR accused

Winko recognizes that risk assessment is not a precise science. As stated by the Court:

This is not to suggest that the determination of whether an NCR offender poses a significant threat to the safety of the public is a simple matter. Dangerousness has been described as a ‘protean concept’… It concerns probabilities, not facts…

In a more recent case, R. v. Owen (2003), the Supreme Court of Canada recognized that while the Review Board is, like courts and other administrative tribunals, required to make findings of fact regarding past events, its central and most difficult task relates to prediction regarding future risk of harm. The decision acknowledges the inherent difficulties in balancing individual liberty interests against the social interests of public safety.

NATURE OF REVIEW BOARD HEARINGS

Review Board hearings are unique. Unlike most criminal and civil proceedings, Review Board hearings are not an adversarial process where the decision-maker is passive and where the parties have legal burdens to prove various facts. In practice of course, the Review Board necessarily relies on the parties, who have the best access to information, to bring forward the relevant evidence on the relevant issues. Those parties will often take conflicting – even “adversarial” - positions before the Board. However, what makes Review Board hearings unique is that there is no legal burden on the Director and the Crown to prove that the accused is dangerous, and no burden on the accused to prove that he or she is not dangerous. The Review Board hearing is an inquiry. The Review Board is expected to participate. As stated in Winko:

The system is inquisitorial. It places the burden of reviewing all relevant evidence on both sides of the case on the court or Review Board. The court or Review Board has a duty not only to search out and consider evidence favouring restricting NCR accused, but also to search out and consider evidence favouring his or her absolute discharge or release subject to the minimal necessary restraints, regardless of whether the NCR accused is even present. This is fair, given that the NCR accused may not in a position to advance his or her own case. The legal and evidentiary burden of establishing that the NCR accused poses a significant threat to public safety and thereby justifying a restrictive disposition always remains with the court or Review Board.

To achieve its purposes, the Review Board has the power to hear witnesses, including expert evidence tendered by the parties, and to seek out and obtain records. The Review Board is conceivably entitled to retain its own experts. Where the interests of justice require it, the Board may do things such as order that legal counsel be appointed for a party, and hear evidence in private.

THE HEARING PROCESS

Review Board hearings are usually informal. However, because of the Charter interests at stake, the Review Board must ensure that informality does not compromise the accused’s right to be treated in a procedurally fair manner – i.e., that the accused receives proper notice of reports, has a full chance to give evidence and ask questions, and receives a decision from a panel that is, and appears to be, objective and independent.

The Review Board normally conducts three hearings per day. Standard hearings take 2 hours to complete. Each hearing commences with an opening position from each party present, followed by evidence “in chief” from the “treatment team”, whose written reports have previously been submitted to the Review Board and shared with the other parties. Following its evidence in chief, the “treatment team” may be asked questions by the other parties and the members of the Review Board. Subject to any evidence from the Crown or additional witnesses the Review Board chooses to call, the Review Board then hears evidence from the accused, who is also subject to questions from the other parties and the Panel. The Review Board hears closing submissions, then it deliberates in private, and may announce its decision.

Hearings are normally held in person, and are recorded. Oaths may be but are not usually taken. The Board sometimes receives evidence by telephone where this can be done fairly. Part XX.1 also allows hearings to be held by videoconference.

In non-contentious cases, the Board may at times conduct “paper hearings”. Such hearings proceed in the absence of the parties, with their consent, where the Board is satisfied the interests of justice do not require the presence of the accused and that it has the evidence necessary to make an order. Such a process presumes that a new order which is identical to that being reviewed will result.

The disposition information relied upon by the Board is normally prepared no less than seven days before the hearing, at which time it is provided to the Board members and the parties.

In British Columbia , hearings for unfit and NCR adults detained in custody are typically held at the Forensic Psychiatric Hospital in Port Coquitlam . Hearings for youth in custody are typically held at the Maples Adolescent Treatment Centre in Burnaby . Under provincial law, the Forensic Psychiatric Hospital ( Port Coquitlam ) is one of the hospitals “for the custody, treatment or assessment” of accused persons at any time after they have reached the age of 18. The Maples Adolescent Treatment Centre ( Burnaby ) is a hospital for the custody, treatment or assessment of young persons under the Youth Criminal Justice Act.

Hearings for persons on conditional discharge are held at several locations throughout the province. In Vancouver , those hearings are normally held at the Review Board Office.

ORDERS AND REASONS

The Review Board must provide written orders and reasons for each disposition. There is an important distinction between the Review Board’s “order” and its “reasons”. The order is the Review Board’s formal legal disposition under the Criminal Code (absolute discharge, discharge with conditions, custody with conditions). The reasons are the rationale or justification for the order, usually consisting of a statement of the key facts, evidence, issues and the reasoning which satisfies the Review Board’s legal mandate.

Panels normally deliberate and advise the parties of their disposition orders on the same date as the hearing. Formal written orders are normally drafted in the Review Board office and issued within a day or two thereafter.

If time permits and the circumstances are appropriate, the panel chair may also deliver reasons for decision orally at the time the decision is rendered, which reasons are then transcribed into written form. If reasons are “reserved” (i.e., to be issued later), they are normally provided within 45 days from the date of the hearing. The Review Board’s decision in a particular case is the decision of the majority of the panel. Members who dissent from the majority are expected to provide dissenting reasons.

DISPOSITION CONDITIONS

Section 672.54(b) and (c) authorize the Review Board to discharge or detain an accused, “subject to such conditions as … the Review Board considers appropriate”.The choice of appropriate conditions is within the sole discretion of the Board.

Where the Review Board does not grant an absolute discharge, the Criminal Code makes the Review Board responsible for crafting conditions that are relevant to the special and differing needs of each accused person and case. It does not impose any pre-ordained set of conditions for Review Board custody or conditional disposition orders, aside from the overriding statutory requirements to always impose the “least onerous and least restrictive” disposition and conditions, which maximize an accused’s liberties yet are consistent with public safety.

Review Board conditional discharge orders frequently contain conditions individual to a particular accused, such as conditions related to place of residence, driving motor vehicles, use of alcohol and non-prescribed drugs, and “no contact” or “no go”. Individualized conditions may also address the frequency of contact an accused person is required to have with his Treatment Team while in the community, and the fashion in which he can exercise liberties while in custody. Conditions may also impose obligations and expectations on those who treat, supervise and care for an accused.

The Supreme Court of Canada has recently confirmed that the Board’s dispositions and, in turn, its conditions, may be directed toward, and are considered binding, on other parties in addition to the accused person.

Experience has shown that some conditions serve such a useful purpose that they appear in a majority of orders. This is the case, for example, in conditional discharge orders, which typically require an accused to be “subject to the general direction and supervision of the Director”or which enable the Director to return the accused to hospital if he starts to “decompensate” (i.e., become acutely ill). In custody orders, one often sees provisions granting accused persons liberty to take unescorted day leaves and overnight visit leaves at the discretion of the Director or under circumstances specified by the Board .

For convenience and consistency of language, the Panel Chair’s disposition binder contains a set of conditions that are commonly found in conditional discharge and custody orders. Review Board staff provide these conditions to the Panel Chairs on the understanding that the Panel must always ensure that the case justifies the condition rather than having the “standard” nature of the condition dictate its inclusion in an order.

TREATMENT CONDITIONS

The Board has no power to impose a condition that an accused submit to treatment unless the accused consents to that condition and the Review Board considers the condition to be reasonable and necessary in the interests of the accused: s. 672.55.

Although the Board may not “prescribe” treatment, its orders and conditions may relate to or supervise the treatment provided to an accused person

Even though the Review Board may not order treatment without the accused person’s consent, accused persons detained in hospital under Review Board orders receive treatment under sections 30 and 31 of the provincial Mental Health Act, which “deems” such persons to have consented to treatment. There is no “deemed consent” provision for persons discharged to the community on conditions. This means that it is ultimately for each accused, while in the community, to decide whether to take their medication, recognizing that if they choose not do so against the recommendation of their Treatment Team and the Review Board, this could be a factor in their return to hospital or in future Review Board decision-making.

APPEALS FROM REVIEW BOARD DECISIONS

Review Board dispositions are appealable directly to the British Columbia Court of Appeal. Appeals must be filed within 15 days after the appealing party receives the disposition order. The Court of Appeal may allow the appeal if it is unreasonable or cannot be supported by the evidence, is based on a wrong decision on a question of law, or there was a miscarriage of justice: s. 672.78(1).

The Supreme Court of Canada has made clear that, in light of the Review Board’s expertise, Courts should not interfere with its risk assessment judgments unless those judgments are clearly unreasonable. The Supreme Court of Canada put the matter this way in R. v. Owen:

If the Board’s decision is such that it could reasonably be the subject of disagreement among Board members properly informed of the facts and instructed on the applicable law, the court should in general decline to intervene [para. 33]

This "judicial deference" to the Review Board means that the Review Board’s risk assessment decision will, for all practical purposes, be final in most cases. The finality of Review Board decisions only re-emphasizes the Review Board’s responsibility, to each accused, to carry out its risk assessment function independently, with integrity and consistent with the mandategiven to it by the Criminal Code.

 

**“Deemed” consent to treatment means that even though a person may not consent to treatment in reality, the law deems the person to consent, thus enabling the physician to provide treatment. As a result of the Supreme Court of Canada’s decision in Starson v. Swayze, 2003 SCC 32, there is some question whether British Columbia’s deemed consent provisions are now vulnerable to challenge under the Charter of Rights.