Not Criminally Responsible Reform Act (S.C. 2014, c. 6)
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Assented to 2014-04-11
Not Criminally Responsible Reform Act
S.C. 2014, c. 6
Assented to 2014-04-11
An Act to amend the Criminal Code and the National Defence Act (mental disorder)
SUMMARY
This enactment amends the mental disorder regime in the Criminal Code and the National Defence Act to specify that the paramount consideration in the decision-making process is the safety of the public and to create a scheme for finding that certain persons who have been found not criminally responsible on account of mental disorder are high-risk accused. It also enhances the involvement of victims in the regime and makes procedural and technical amendments.
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
SHORT TITLE
Marginal note:Short title
1. This Act may be cited as the Not Criminally Responsible Reform Act.
R.S., c. C-46CRIMINAL CODE
Marginal note:1991, c. 43, s. 4
2. (1) The definition “disposition” in subsection 672.1(1) of the Criminal Code is replaced by the following:
“disposition”
« décision »
“disposition” means an order made by a court or Review Board under section 672.54, an order made by a court under section 672.58 or a finding made by a court under subsection 672.64(1);
(2) Subsection 672.1(1) of the Act is amended by adding the following in alphabetical order:
“high-risk accused”
« accusé à haut risque »
“high-risk accused” means an accused who is found to be a high-risk accused by a court under subsection 672.64(1);
3. Section 672.11 of the Act is amended by striking out “or” at the end of paragraph (d) and by adding the following after paragraph (d):
(d.1) whether a finding that the accused is a high-risk accused should be revoked under subsection 672.84(3); or
4. Section 672.121 of the Act is amended by striking out “or” at the end of paragraph (a), by adding “or” at the end of paragraph (b) and by adding the following after paragraph (b):
(c) determine whether to refer to the court for review under subsection 672.84(1) a finding that an accused is a high-risk accused.
5. Subsection 672.21(3) of the Act is amended by adding the following after paragraph (b):
(c) determining, under section 672.84, whether to refer to the court for review a finding that an accused is a high-risk accused or whether to revoke such a finding;
Marginal note:1991, c. 43, s. 4; 2005, c. 22, par. 42(e)(F)
6. (1) Subsection 672.47(2) of the French version of the Act is replaced by the following:
Marginal note:Prolongation
(2) Le tribunal, s’il est convaincu qu’il existe des circonstances exceptionnelles le justifiant, peut prolonger le délai préalable à la tenue d’une audience visée au paragraphe (1) jusqu’à un maximum de quatre-vingt-dix jours après le prononcé du verdict.
(2) Section 672.47 of the Act is amended by adding the following after subsection (3):
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.
Marginal note:1991, c. 43, s. 4; 2005, c. 22, par. 42(g)(F)
7. (1) Subsection 672.5(1) of the Act is replaced by the following:
Marginal note:Procedure at disposition hearing
672.5 (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.
(2) Section 672.5 of the Act is amended by adding the following after subsection (5.1):
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.
(3) Section 672.5 of the Act is amended by adding the following after subsection (13.2):
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:1999, c. 25, s. 11
(4) Subsection 672.5(14) of the French version of the Act is replaced by the following:
Marginal note:Déclaration de la victime
(14) La victime peut rédiger et déposer auprès du tribunal ou de la commission d’examen une déclaration écrite qui décrit les dommages — corporels ou autres — ou les pertes qui lui ont été causés par la perpétration de l’infraction.
Marginal note:2005, c. 22, s. 16(3)
(5) Subsections 672.5(15.2) to (16) of the Act are replaced by the following:
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.
Definition of “victim”
(16) In subsections (5.1), (5.2), (13.2), (13.3), (14) and (15.1) to (15.3), “victim” has the same meaning as in subsection 722(4).
Marginal note:1991, c. 43, s. 4
8. Subsection 672.51(1) of the Act is replaced by the following:
Definition of “disposition information”
672.51 (1) In this section, “disposition information” means all or part of an assessment report submitted to the court or Review Board and any other written information before the court or Review Board about the accused that is relevant to making or reviewing a disposition.
Marginal note:2005, c. 22, s. 20
9. The portion of section 672.54 of the Act before paragraph (a) is replaced by the following:
Marginal note:Dispositions that may be made
672.54 When a court or Review Board makes a disposition under subsection 672.45(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 the 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:
Marginal note:2005, c. 22, s. 21
10. Section 672.541 of the Act is replaced by the following:
Marginal note:Significant threat to safety of public
672.5401 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.
Marginal note:Victim impact statement
672.541 If a verdict of not criminally responsible on account of mental disorder has been rendered in respect of an accused, the court or Review Board shall
(a) at a hearing held under section 672.45, 672.47, 672.64, 672.81 or 672.82 or subsection 672.84(5), take into consideration any statement filed by a victim in accordance with subsection 672.5(14) in determining the appropriate disposition or conditions under section 672.54, to the extent that the statement is relevant to its consideration of the criteria set out in section 672.54;
(b) at a hearing held under section 672.64 or subsection 672.84(3), take into consideration any statement filed by a victim in accordance with subsection 672.5(14), to the extent that the statement is relevant to its consideration of the criteria set out in subsection 672.64(1) or 672.84(3), as the case may be, in deciding whether to find that the accused is a high-risk accused, or to revoke such a finding; and
(c) at a hearing held under section 672.81 or 672.82 in respect of a high-risk accused, take into consideration any statement filed by a victim in accordance with subsection 672.5(14) in determining whether to refer to the court for review the finding that the accused is a high-risk accused, to the extent that the statement is relevant to its consideration of the criteria set out in subsection 672.84(1).
Marginal note:Additional conditions — safety and security
672.542 When a court or Review Board holds a hearing referred to in section 672.5, the court or Review Board 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 or Review Board considers necessary to ensure the safety and security of those persons.
Marginal note:1991, c. 43, s. 4
11. (1) Subsection 672.56(1) of the French version of the Act is replaced by the following:
Marginal note:Délégation
672.56 (1) La commission d’examen qui rend une décision à l’égard d’un accusé en vertu des alinéas 672.54b) ou c) peut déléguer au responsable de l’hôpital le pouvoir d’assouplir ou de resserrer les privations de liberté de l’accusé à l’intérieur des limites prévues par la décision et sous réserve des modalités de celle-ci; toute modification qu’ordonne ainsi cette personne est, pour l’application de la présente loi, réputée être une décision de la commission d’examen.
(2) Section 672.56 of the Act is amended by adding the following after subsection (1):
Marginal note:Exception — high-risk accused
(1.1) If the accused is a high-risk accused, any direction is subject to the restrictions set out in subsection 672.64(3).
12. The Act is amended by adding the following after section 672.63:
High-Risk Accused
Marginal note:Finding
672.64 (1) On application made by the prosecutor before any disposition to discharge an accused absolutely, the court may, at the conclusion of a hearing, find the accused to be a high-risk accused if the accused has been found not criminally responsible on account of mental disorder for a serious personal injury offence, as defined in subsection 672.81(1.3), the accused was 18 years of age or more at the time of the commission of the offence and
(a) the court is satisfied that there is a substantial likelihood that the accused will use violence that could endanger the life or safety of another person; or
(b) the court 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.
Marginal note:Factors to consider
(2) In deciding whether to find that the accused is a high-risk accused, the court 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’s current mental condition;
(d) the past and expected course of the accused’s treatment, including the accused’s willingness to follow treatment; and
(e) the opinions of experts who have examined the accused.
Marginal note:Detention of high-risk accused
(3) If the court finds the accused to be a high-risk accused, the court shall make a disposition under paragraph 672.54(c), but the accused’s detention must not be subject to any condition that would permit the accused to be absent from the hospital unless
(a) it is appropriate, in the opinion of the person in charge of the hospital, for the accused to be absent from the hospital for medical reasons or for any purpose that is necessary for the accused’s treatment, if the accused is escorted by a person who is authorized by the person in charge of the hospital; and
(b) a structured plan has been prepared to address any risk related to the accused’s absence and, as a result, that absence will not present an undue risk to the public.
Marginal note:Appeal
(4) A decision not to find an accused to be a high-risk accused is deemed to be a disposition for the purpose of sections 672.72 to 672.78.
Marginal note:For greater certainty
(5) For greater certainty, a finding that an accused is a high-risk accused is a disposition and sections 672.72 to 672.78 apply to it.
Marginal note:1991, c. 43, s. 4
13. Section 672.75 of the Act is replaced by the following:
Marginal note:Automatic suspension of certain dispositions
672.75 The filing of a notice of appeal against a disposition made under section 672.58 suspends the application of the disposition pending the determination of the appeal.
Marginal note:1991, c. 43, s. 4
14. Paragraph 672.76(2)(a) of the Act is replaced by the following:
(a) by order, direct that a disposition made under section 672.58 be carried out pending the determination of the appeal, despite section 672.75;
(a.1) by order, direct that a disposition made under paragraph 672.54(a) be suspended pending the determination of the appeal;
Marginal note:2005, c. 22, s. 27(2)
15. Subsections 672.81(1.4) and (1.5) of the Act are replaced by the following:
Marginal note:Extension on consent — high-risk accused
(1.31) Despite subsections (1) to (1.2), the Review Board may extend the time for holding a hearing in respect of a high-risk accused to a maximum of 36 months after making or reviewing a disposition if the accused is represented by counsel and the accused and the Attorney General consent to the extension.
Marginal note:Extension — no likely improvement
(1.32) Despite subsections (1) to (1.2), at the conclusion of a hearing under subsection 672.47(4) or this section in respect of a high-risk accused, the Review Board may, after making a disposition, extend the time for holding a subsequent hearing under this section to a maximum of 36 months if the Review Board is satisfied on the basis of any relevant information, including disposition information as defined in subsection 672.51(1) and an assessment report made under an assessment ordered under paragraph 672.121(c), that the accused’s condition is not likely to improve and that detention remains necessary for the period of the extension.
Marginal note:Notice
(1.4) If the Review Board extends the time for holding a hearing under subsection (1.2) or (1.32), it shall provide notice of the extension to the accused, the prosecutor and the person in charge of the hospital where the accused is detained.
Marginal note:Appeal
(1.5) A decision by the Review Board to extend the time for holding a hearing under subsection (1.2) or (1.32) is deemed to be a disposition for the purpose of sections 672.72 to 672.78.
16. The Act is amended by adding the following after section 672.83:
Marginal note:Review of finding — high-risk accused
672.84 (1) If a Review Board holds a hearing under section 672.81 or 672.82 in respect of a high-risk accused, it shall, on the basis of any relevant information, including disposition information as defined in subsection 672.51(1) and an assessment report made under an assessment ordered under paragraph 672.121(c), if it is satisfied that there is not a substantial likelihood that the accused — whether found to be a high-risk accused under paragraph 672.64(1)(a) or (b) — will use violence that could endanger the life or safety of another person, refer the finding for review to the superior court of criminal jurisdiction.
Marginal note:Review of conditions
(2) If the Review Board is not so satisfied, it shall review the conditions of detention imposed under paragraph 672.54(c), subject to the restrictions set out in subsection 672.64(3).
Marginal note:Review of finding by court
(3) If the Review Board refers the finding to the superior court of criminal jurisdiction for review, the court shall, at the conclusion of a hearing, revoke the finding if the court is satisfied that there is not a substantial likelihood that the accused will use violence that could endanger the life or safety of another person, in which case the court or the Review Board shall make a disposition under any of paragraphs 672.54(a) to (c).
Marginal note:Hearing and disposition
(4) Any disposition referred to in subsection (3) is subject to sections 672.45 to 672.47 as if the revocation is a verdict.
Marginal note:Review of conditions
(5) If the court 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. The Review Board shall, as soon as practicable but not later than 45 days after the day on which the court decides not to revoke the finding, hold a hearing and review the conditions of detention imposed under paragraph 672.54(c), subject to the restrictions set out in subsection 672.64(3).
Marginal note:Appeal
(6) A decision under subsection (1) about referring the finding to the court for review and a decision under subsection (3) about revoking the finding are deemed to be dispositions for the purpose of sections 672.72 to 672.78.
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