An Act to amend the Criminal Code (mental disorder) and to make consequential amendments to other Acts (S.C. 2005, c. 22)
Full Document:
Assented to 2005-05-19
An Act to amend the Criminal Code (mental disorder) and to make consequential amendments to other Acts
S.C. 2005, c. 22
Assented to 2005-05-19
An Act to amend the Criminal Code (mental disorder) and to make consequential amendments to other Acts
SUMMARY
This enactment amends Part XX.1 of the Criminal Code governing persons found unfit to stand trial or not criminally responsible on account of mental disorder. The amendments, among other things, include
(a) repealing unproclaimed provisions related to capping, dangerous mentally disordered accused and hospital orders;
(b) expanding the authority of Review Boards by enabling them to order an assessment of the accused, adjourn hearings and protect the identity of victims and witnesses;
(c) permitting the oral presentation of victim impact statements at disposition hearings and adjournments allowing the victim to prepare the statement;
(d) permitting Review Boards to extend the time for holding a review hearing to a maximum of 24 months in certain circumstances;
(e) permitting the court to hold an inquiry and order a judicial stay of proceedings for an accused found unfit to stand trial, if the accused is not likely to ever be fit to stand trial and does not pose a significant risk to the safety of the public and a stay is in the interests of the proper administration of justice;
(f) specifying that the transfer provisions require the consent of the appropriate Attorneys General in all cases and enabling transfers of an accused who is not in custody; and
(g) allowing peace officers arresting an accused who is in contravention of an assessment order or a disposition to release, detain, compel the appearance of or deliver the accused to a place specified in the order.
This enactment also makes consequential amendments to other Acts, including the National Defence Act.
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
R.S., c. C-46CRIMINAL CODE
Marginal note:1991, c. 43, s. 4
1. (1) Section 672.1 of the Criminal Code is renumbered as subsection 672.1(1).
Marginal note:1991, c. 43, s. 4
(2) The definition “assessment” in subsection 672.1(1) of the Act is replaced by the following:
“assessment”
« évaluation »
“assessment” means an assessment by a medical practitioner or any other person who has been designated by the Attorney General as being qualified to conduct an assessment of the mental condition of the accused under an assessment order made under section 672.11 or 672.121, and any incidental observation or examination of the accused;
(3) Section 672.1 of the Act is amended by adding the following after subsection (1):
Marginal note:Reference
(2) For the purposes of subsections 672.5(3) and (5), paragraph 672.86(1)(b) and subsections 672.86(2) and (2.1), 672.88(2) and 672.89(2), in respect of a territory or proceedings commenced at the instance of the Government of Canada and conducted by or on behalf of that Government, a reference to the Attorney General of a province shall be read as a reference to the Attorney General of Canada.
Marginal note:1991, c. 43, s. 4; 1995, c. 22, s. 10 (Sch. I, s. 24)
2. Paragraph 672.11(e) of the Act is replaced by the following:
(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.
3. The Act is amended by adding the following after section 672.12:
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); or
(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.
Marginal note:1991, c. 43, s. 4
4. Subsection 672.13(2) of the Act is replaced by the following:
Marginal note:Form
(2) An assessment order may be in Form 48 or 48.1.
Marginal note:1991, c. 43, s. 4
5. Subsection 672.14(3) of the Act is replaced by the following:
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:1991, c. 43, s. 4
6. Subsection 672.15(1) of the Act is replaced by the following:
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:1991, c. 43, s. 4
7. (1) The portion of subsection 672.16(1) of the Act before paragraph (a) is replaced by the following:
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
Marginal note:1991, c. 43, s. 4
(2) Subsection 672.16(2) of the Act is replaced by the following:
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:1991, c. 43, s. 4
(3) Subsection 672.16(3) of the English version of the Act is replaced by the following:
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:1991, c. 43, s. 4
8. Section 672.17 of the Act is replaced by the following:
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:1991, c. 43, s. 4
9. Section 672.18 of the French version of the Act is replaced by the following:
Marginal note:Demande de modification
672.18 Lorsque la nécessité lui en est démontrée par le poursuivant ou l’accusé, le tribunal peut, pendant que l’ordonnance d’évaluation rendue par un tribunal est en cours de validité, modifier les conditions de celle-ci qui portent sur la mise en liberté provisoire de l’accusé ou sa détention, de la façon que le tribunal juge indiquée dans les circonstances.
Marginal note:1997, c. 18, s. 81
10. Section 672.191 of the Act is replaced by the following:
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.
Marginal note:1991, c. 43, s. 4
11. (1) Subsection 672.2(2) of the Act is replaced by the following:
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:1991, c. 43, s. 4
(2) Subsection 672.2(4) of the Act is replaced by the following:
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.
Marginal note:1991, c. 43, s. 4
12. Paragraph 672.21(3)(c) of the Act is repealed.
13. Section 672.33 of the Act is amended by adding the following after subsection (1):
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.
14. Section 672.45 of the Act is amended by adding the following after subsection (1):
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:1991, c. 43, s. 4
15. Subsection 672.47(3) of the Act is replaced by the following:
Marginal note:Disposition made by court
(3) Where a court makes a disposition under section 672.54 other than an absolute discharge in respect of an accused, the Review Board shall, not later than ninety days after the disposition was made, hold a hearing and make a disposition in respect of the accused.
16. (1) Section 672.5 of the Act is amended by adding the following after subsection (5):
Marginal note:Notice
(5.1) At the victim's request, notice of the hearing and of the relevant provisions of the Act shall be given to the victim within the time and in the manner fixed by the rules of the court or Review Board.
Marginal note:1991, c. 43, s. 4
(1.1) The portion of subsection 672.5(8) of the Act before paragraph (a) is replaced by the following:
Marginal note:Assigning counsel
(8) If an accused is not represented by counsel, the court or Review Board shall, either before or at the time of the hearing, assign counsel to act for any accused
(2) Section 672.5 of the Act is amended by adding the following after subsection (13):
Marginal note:Adjournment
(13.1) The Review Board may adjourn the hearing for a period not exceeding thirty days if necessary for the purpose of ensuring that relevant information is available to permit it to make or review a disposition or for any other sufficient reason.
Marginal note:Determination of mental condition of the accused
(13.2) On receiving an assessment report, the court or Review Board shall determine whether, since the last time the disposition in respect of the accused was made or reviewed there has been any change in the mental condition of the accused that may provide grounds for the discharge of the accused under paragraph 672.54(a) or (b) and, if there has been such a change, the court or Review Board shall notify every victim of the offence that they are entitled to file a statement in accordance with subsection (14).
Marginal note:1999, c. 25, s. 11
(3) Subsection 672.5(16) of the Act is replaced by the following:
Marginal note:Presentation of victim statement
(15.1) The court or Review Board shall, at the request of a victim, permit the victim to read a statement prepared and filed in accordance with subsection (14), or to present the statement in any other manner that the court or Review Board considers appropriate, unless the court or Review Board is of the opinion that the reading or presentation of the statement would interfere with the proper administration of justice.
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 or 672.47, 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 or 672.47 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 (14) and (15.1) to (15.3), “victim” has the same meaning as in subsection 722(4).
17. The Act is amended by adding the following after section 672.5:
Marginal note:Order restricting publication — victims of sexual offences
672.501 (1) Where a Review Board holds a hearing referred to in section 672.5 in respect of an accused who has been declared not criminally responsible on account of mental disorder or unfit to stand trial for an offence referred to in subsection 486(3), the Review Board shall make an order directing that any information that could identify a victim, or a witness who is under the age of eighteen years, shall not be published in any document or broadcast or transmitted in any way.
Marginal note:Order restricting publication — child pornography
(2) Where a Review Board holds a hearing referred to in section 672.5 in respect of an accused who has been declared not criminally responsible on account of mental disorder or unfit to stand trial for an offence referred to in section 163.1, a Review Board shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of section 163.1, shall not be published in any document or broadcast or transmitted in any way.
Marginal note:Order restricting publication — other offences
(3) Where a Review Board holds a hearing referred to in section 672.5 in respect of an accused who has been declared not criminally responsible on account of mental disorder or unfit to stand trial for an offence other than the offences referred to in subsection (1) or (2), on application of the prosecutor, a victim or a witness, the Review Board may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the Review Board is satisfied that the order is necessary for the proper administration of justice.
Marginal note:Order restricting publication
(4) An order made under any of subsections (1) to (3) does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.
Marginal note:Application and notice
(5) An applicant for an order under subsection (3) shall
(a) apply in writing to the Review Board; and
(b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the Review Board specifies.
Marginal note:Grounds
(6) An applicant for an order under subsection (3) shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.
Marginal note:Hearing may be held
(7) The Review Board may hold a hearing to determine whether an order under subsection (3) should be made, and the hearing may be in private.
Marginal note:Factors to be considered
(8) In determining whether to make an order under subsection (3), the Review Board shall consider
(a) the right to a fair and public hearing;
(b) whether there is a real and substantial risk that the victim or witness would suffer significant harm if their identity were disclosed;
(c) whether the victim or witness needs the order for their security or to protect them from intimidation or retaliation;
(d) society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process;
(e) whether effective alternatives are available to protect the identity of the victim or witness;
(f) the salutary and deleterious effects of the proposed order;
(g) the impact of the proposed order on the freedom of expression of those affected by it; and
(h) any other factor that the Review Board considers relevant.
Marginal note:Conditions
(9) An order made under subsection (3) may be subject to any conditions that the Review Board thinks fit.
Marginal note:Publication of application prohibited
(10) Unless the Review Board refuses to make an order under subsection (3), no person shall publish in any document or broadcast or transmit in any way
(a) the contents of an application;
(b) any evidence taken, information given or submissions made at a hearing under subsection (7); or
(c) any other information that could identify the person to whom the application relates as a victim or witness in the proceedings.
Marginal note:Offence
(11) Every person who fails to comply with an order made under any of subsections (1) to (3) is guilty of an offence punishable on summary conviction.
Marginal note:Application of order
(12) For greater certainty, an order referred to in subsection (11) also prohibits, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim or witness whose identity is protected by the order.
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