Criminal Code (R.S.C., 1985, c. C-46)

Assessment Orders

Marginal note:Assessment order

672.11 A court having jurisdiction over an accused in respect of an offence may order an assessment of the mental condition of the accused, if it has reasonable grounds to believe that such evidence is necessary to determine

• (a) whether the accused is unfit to stand trial;

• (b) whether the accused was, at the time of the commission of the alleged offence, suffering from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection 16(1);

• (c) whether the balance of the mind of the accused was disturbed at the time of commission of the alleged offence, where the accused is a female person charged with an offence arising out of the death of her newly-born child;

• (d) the appropriate disposition to be made, where a verdict of not criminally responsible on account of mental disorder or unfit to stand trial has been rendered in respect of the accused;

• (d.1) whether a finding that the accused is a high-risk accused should be revoked under subsection 672.84(3); or

• (e) whether an order should be made under section 672.851 for a stay of proceedings, where a verdict of unfit to stand trial has been rendered against the accused.

Marginal note:Where court may order assessment

• 672.12 (1) The court may make an assessment order at any stage of proceedings against the accused of its own motion, on application of the accused or, subject to subsections (2) and (3), on application of the prosecutor.

• Marginal note:Limitation on prosecutor’s application for assessment of fitness

  (2) Where the prosecutor applies for an assessment in order to determine whether the accused is unfit to stand trial for an offence that is prosecuted by way of summary conviction, the court may only order the assessment if

  • (a) the accused raised the issue of fitness; or

  • (b) the prosecutor satisfies the court that there are reasonable grounds to doubt that the accused is fit to stand trial.

• Marginal note:Limitation on prosecutor’s application for assessment

  (3) Where the prosecutor applies for an assessment in order to determine whether the accused was suffering from a mental disorder at the time of the offence so as to be exempt from criminal responsibility, the court may only order the assessment if

  • (a) the accused puts his or her mental capacity for criminal intent into issue; or

  • (b) the prosecutor satisfies the court that there are reasonable grounds to doubt that the accused is criminally responsible for the alleged offence, on account of mental disorder.

Marginal note:Review Board may order assessment

672.121 The Review Board that has jurisdiction over an accused found not criminally responsible on account of mental disorder or unfit to stand trial may order an assessment of the mental condition of the accused of its own motion or on application of the prosecutor or the accused, if it has reasonable grounds to believe that such evidence is necessary to

• (a) make a recommendation to the court under subsection 672.851(1);

• (b) make a disposition under section 672.54 in one of the following circumstances:

  • (i) no assessment report on the mental condition of the accused is available,

  • (ii) no assessment of the mental condition of the accused has been conducted in the last twelve months, or

  • (iii) the accused has been transferred from another province under section 672.86; or

• (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.

Marginal note:Contents of assessment order

• 672.13 (1) An assessment order must specify

  • (a) the service that or the person who is to make the assessment, or the hospital where it is to be made;

  • (b) whether the accused is to be detained in custody while the order is in force; and

  • (c) the period that the order is to be in force, including the time required for the assessment and for the accused to travel to and from the place where the assessment is to be made.

• Marginal note:Form

  (2) An assessment order may be in Form 48 or 48.1.

Marginal note:General rule for period

• 672.14 (1) An assessment order shall not be in force for more than thirty days.

• Marginal note:Exception in fitness cases

  (2) No assessment order to determine whether the accused is unfit to stand trial shall be in force for more than five days, excluding holidays and the time required for the accused to travel to and from the place where the assessment is to be made, unless the accused and the prosecutor agree to a longer period not exceeding thirty days.

• Marginal note:Exception for compelling circumstances

  (3) Despite subsections (1) and (2), a court or Review Board may make an assessment order that remains in force for sixty days if the court or Review Board is satisfied that compelling circumstances exist that warrant it.

Marginal note:Extension

• 672.15 (1) Subject to subsection (2), a court or Review Board may extend an assessment order, of its own motion or on the application of the accused or the prosecutor made during or at the end of the period during which the order is in force, for any further period that is required, in its opinion, to complete the assessment of the accused.

• Marginal note:Maximum duration of extensions

  (2) No extension of an assessment order shall exceed thirty days, and the period of the initial order together with all extensions shall not exceed sixty days.

Marginal note:Presumption against custody

• 672.16 (1) Subject to subsection (3), an accused shall not be detained in custody under an assessment order of a court unless

  • (a) the court is satisfied that on the evidence custody is necessary to assess the accused, or that on the evidence of a medical practitioner custody is desirable to assess the accused and the accused consents to custody;

  • (b) custody of the accused is required in respect of any other matter or by virtue of any other provision of this Act; or

  • (c) the prosecutor, having been given a reasonable opportunity to do so, shows that detention of the accused in custody is justified on either of the grounds set out in subsection 515(10).

• Marginal note:Presumption against custody — Review Board

  (1.1) If the Review Board makes an order for an assessment of an accused under section 672.121, the accused shall not be detained in custody under the order unless

  • (a) the accused is currently subject to a disposition made under paragraph 672.54(c);

  • (b) the Review Board is satisfied on the evidence that custody is necessary to assess the accused, or that on the evidence of a medical practitioner custody is desirable to assess the accused and the accused consents to custody; or

  • (c) custody of the accused is required in respect of any other matter or by virtue of any other provision of this Act.

• Marginal note:Residency as a condition of disposition

  (1.2) Subject to paragraphs (1.1)(b) and (c), if the accused is subject to a disposition made under paragraph 672.54(b) that requires the accused to reside at a specified place, an assessment ordered under section 672.121 shall require the accused to reside at the same place.

• Marginal note:Report of medical practitioner

  (2) For the purposes of paragraphs (1)(a) and (1.1)(b), if the prosecutor and the accused agree, the evidence of a medical practitioner may be received in the form of a report in writing.

• Marginal note:Presumption of custody in certain circumstances

  (3) An assessment order made in respect of an accused who is detained under subsection 515(6) or 522(2) shall order that the accused be detained in custody under the same circumstances referred to in that subsection, unless the accused shows that custody is not justified under the terms of that subsection.

Marginal note:Assessment order takes precedence over bail hearing

672.17 During the period that an assessment order made by a court in respect of an accused charged with an offence is in force, no order for the interim release or detention of the accused may be made by virtue of Part XVI or section 679 in respect of that offence or an included offence.

Marginal note:Application to vary assessment order

672.18 Where at any time while an assessment order made by a court is in force the prosecutor or an accused shows cause, the court may vary the terms of the order respecting the interim release or detention of the accused in such manner as it considers appropriate in the circumstances.

Marginal note:No treatment order on assessment

672.19 No assessment order may direct that psychiatric or any other treatment of the accused be carried out, or direct the accused to submit to such treatment.

Marginal note:When assessment completed

672.191 An accused in respect of whom an assessment order is made shall appear before the court or Review Board that made the order as soon as practicable after the assessment is completed and not later than the last day of the period that the order is to be in force.

Assessment Reports

Marginal note:Assessment report

• 672.2 (1) An assessment order may require the person who makes the assessment to submit in writing an assessment report on the mental condition of the accused.

• Marginal note:Assessment report to be filed

  (2) An assessment report shall be filed with the court or Review Board that ordered it, within the period fixed by the court or Review Board, as the case may be.

• Marginal note:Court to send assessment report to Review Board

  (3) The court shall send to the Review Board without delay a copy of any report filed with it pursuant to subsection (2), to assist in determining the appropriate disposition to be made in respect of the accused.

• Marginal note:Copies of reports to accused and prosecutor

  (4) Subject to subsection 672.51(3), copies of any report filed with a court or Review Board under subsection (2) shall be provided without delay to the prosecutor, the accused and any counsel representing the accused.

Protected Statements

Marginal note:Definition of protected statement

• 672.21 (1) In this section, protected statement means a statement made by the accused during the course and for the purposes of an assessment or treatment directed by a disposition, to the person specified in the assessment order or the disposition, or to anyone acting under that person’s direction.

• Marginal note:Protected statements not admissible against accused

  (2) No protected statement or reference to a protected statement made by an accused is admissible in evidence, without the consent of the accused, in any proceeding before a court, tribunal, body or person with jurisdiction to compel the production of evidence.

• Marginal note:Exceptions

  (3) Notwithstanding subsection (2), evidence of a protected statement is admissible for the purpose of

  • (a) determining whether the accused is unfit to stand trial;

  • (b) making a disposition or placement decision respecting the accused;

  • (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;

  • (d) determining whether the balance of the mind of the accused was disturbed at the time of commission of the alleged offence, where the accused is a female person charged with an offence arising out of the death of her newly-born child;

  • (e) determining whether the accused was, at the time of the commission of an alleged offence, suffering from automatism or a mental disorder so as to be exempt from criminal responsibility by virtue of subsection 16(1), if the accused puts his or her mental capacity for criminal intent into issue, or if the prosecutor raises the issue after verdict;

  • (f) challenging the credibility of an accused in any proceeding where the testimony of the accused is inconsistent in a material particular with a protected statement that the accused made previously; or

  • (g) establishing the perjury of an accused who is charged with perjury in respect of a statement made in any proceeding.

Fitness to Stand Trial

Marginal note:Presumption of fitness

672.22 An accused is presumed fit to stand trial unless the court is satisfied on the balance of probabilities that the accused is unfit to stand trial.

Marginal note:Court may direct issue to be tried

• 672.23 (1) Where the court has reasonable grounds, at any stage of the proceedings before a verdict is rendered, to believe that the accused is unfit to stand trial, the court may direct, of its own motion or on application of the accused or the prosecutor, that the issue of fitness of the accused be tried.

• Marginal note:Burden of proof

  (2) An accused or a prosecutor who makes an application under subsection (1) has the burden of proof that the accused is unfit to stand trial.

Marginal note:Counsel

• 672.24 (1) Where the court has reasonable grounds to believe that an accused is unfit to stand trial and the accused is not represented by counsel, the court shall order that the accused be represented by counsel.

• Marginal note:Counsel fees and disbursements

  (2) Where counsel is assigned pursuant to subsection (1) 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

  (3) 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.