MANDATE OF THE BRITISH COLUMBIA REVIEW BOARD
The British Columbia Review Board (BCRB) is an independent adjudicative tribunal, established pursuant to s. 672.38 (Part XX.1) of the Criminal Code of Canada. The BCRB’s mandate is to make and to review dispositions (orders), with respect to individuals charged with offenses in respect of whom verdicts of not criminally responsible on account of mental disorder or unfit to stand trial on account of mental disorder, have been rendered by a Court.
The fundamental policy objectives of Part X.X.1, as affirmed by the Supreme Court of Canada in Winko v. B.C., (June 17, 1999), are:
The protection of the public and treating mentally disordered accused persons fairly and appropriately: [Par. 21, 22, 30].
To improve protection for society against those few mentally disordered accused who are dangerous; and to recognize that mentally disordered offenders need due process, fundamental fairness and need the rights accorded to them for their protection when they come into conflict with the criminal law: [Par. 22].
The criteria which govern the Board's decisions were amended by s. 672.54 of the Not Criminally Responsible Reform Act (in force July 12, 2014):
s. 672.54: Where a court or Review board makes a disposition pursuant to subsection 672.54(2), section 672.47, subsection 672.64(3) or section 672.83 or 672.84, it shall, taking into account the safety of the public, which is paramount consideration, the mental condition of the accused, the reintegration of the accused into society and the other needs of the accused, make one of the following dispositions that is necessary and appropriate in the circumstances (emphasis added):
(a) where a verdict of not criminally responsible on account of mental disorder has been rendered in respect of the accused and, in the opinion of the court or Review Board, the accused is not a significant threat to the safety of the public, by order, direct that the accused be discharged absolutely;
(b) by order, direct that the accused be discharged subject to such conditions as the court or Review Board considers appropriate; or
(c) by order, direct that the accused be detained in custody in a hospital, subject to such conditions as the court or Review board considers appropriate. 1991. C43, s.4.
Appellate decisions since these amendments have held that the words “necessary and appropriate” have the same meaning as the prior language of “least onerous and least restrictive” disposition: see Re Osawe, 2015 ONCA 280, at par. 45; Re Ranieri, 2015 ONCA 444, at par. 20; Re McAnuff, 2016 ONCA 280, at par. 22.
The Review Board’s jurisdiction is founded on a finding that an accused poses a “significant threat”:
s.672.5401 defines “significant threat”:
For the purposes of section 672.54, a 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.
Since the implementation of s.672.5401, courts have indicated that this definition does not alter the definition of significant threat imposed by the SCC in Winko:
The threat posed must be more than speculative in nature; it must be supported by evidence. The threat must also be significant; there must be a real risk of physical or psychological harm and this potential harm must be serious. A miniscule risk of grave harm will not suffice; a high risk of trivial harm will not meet the threshold; the conduct or activity must be criminal in nature. [Par.57]