VI. What happens to the accused person?

If the court finds the accused person in your case is NCRMD or UST, the Court will either:

  • Hold a disposition hearing and issue an initial disposition order (this means that the court decides what is going to happen to the accused) and the Review Board would then have 90 days from the time of the verdict to hold a hearing1; or
  • Refer the case to the Review Board, established under the Criminal Code, for disposition. The Review Board must make an initial disposition within 45 days of the verdict unless the Court extends the time up to a period of 90 days2.

What is the Review Board?

Under the Criminal Code, a Review Board has the power to make or review the disposition of accused persons who have been found UST or NCRMD. The Board is made up of at least five members3. The chairperson must be a judge, retired judge or person qualified to be appointed as a judge4. There must be at least one licensed psychiatrist, and the other members are members of the public5. When the Board sits (or meets) to review cases, at least three members must be present, including the chairperson and the psychiatrist6.

What kinds of dispositions can the Court or the Review Board make?

The Court or the Review Board may order the following:

  • The patient may be detained in a psychiatric facility until the Review Board recommends a conditional or absolute discharge7;
  • A conditional discharge is when a patient may be allowed to live in the community with conditions (which may include being under the supervision of mental health officials)8;
  • An absolute discharge means the patient is released directly into the community with no supervision9.

Can he/she be returned to the hospital?

Each case is different. In some cases, the patient may be released into the community immediately, without any detention in a psychiatric hospital. In other cases, the patient may be kept in a hospital setting for the remainder of their lives. Other individuals may spend some time in a hospital and then be gradually released into the community.

How often will the Review Board reassess the NCRMD patient?

The Review Board must hold a hearing for patients who are sent to a psychiatric facility or who receive a conditional discharge at least once a year10, unless the courts have deemed the patient “high-risk”. For high-risk patients, the time between reviews may be extended to three years11. However, the Review Board may review cases more frequently, if it is in the best interest of the patient and public safety to do so. These are known as “discretionary hearings”12. For victims, this means that there are annual hearings in most cases, and that they may be more frequent if the Review Board deems additional reviews are necessary. Other parties, such as the patient, their doctors, or the Crown prosecutor may also request discretionary hearings.

People found NCRMD do not have a regular sentence like those found guilty in the justice system. If someone is convicted of assault, he/she may get a 2-year sentence. If that person were found to be NCRMD, he/she may be sent to a hospital for treatment and be kept there for 7 years or he/she may be released into the community right away. It all depends on the risk the individual presents and how his/her mental illness can be managed. In some cases, those found NCRMD may be detained longer than those who are sent to prison. In other cases, they may be released sooner. People sent to prison are released at the end of their sentences regardless of whether or not they are still dangerous.

Who is present at the hearing?

Generally, the patient, the Crown or a representative, the treating psychologist/psychiatrist, a representative from the hospital where the patient is residing or to which the patient reports, and a lawyer or support person for the patient all attend a hearing as parties to the hearing, as well as the Review Board members13. There may also be caseworkers, the patient’s family, the victim or their advocate/representative who may attend with the victim or in their place. The hearings are open to the public, but may be closed if it is in the best interest of the patient14.

Dawn’s story

My good friend was stabbed to death at a conference by his co-worker. The accused used a ruse to gain access to my friend’s room, brought a knife to the room and proceeded to stab him 28 times while he slept. The accused then fled the scene. He went home, and later that night woke up his sister to tell her what he did. He was arrested and charged with first-degree murder, then assessed for 30 days and it was determined by the doctors that he was fit to stand trial. He was eventually found not criminally responsible. NCRMD was never presented as a possible outcome to the victims.

I have attended all but one of the Review Board hearings, but I seek the information about the hearings myself. I have paid for my transportation, accommodations and taken time off work to travel to the hearings with no reimbursement of costs. I act as an ambassador for my friend’s family, as they live in Ontario and cannot often attend on short notice.

Where are hearings held?

Depending on the province/territory, hearings are held in the location where the patient resides (in a secure facility or in the community) or at a courthouse building. It should be noted that the location may not be equipped to offer separation between the victim and those attending on behalf of the patient. This may mean that waiting areas are shared, and the two parties may be in close proximity in the hearing room.

What happens at Review Board hearings?

The Review Board makes a decision about the individual’s treatment, known as a disposition order. First and foremost, the Board must consider the need to protect the public15. To do so, the Review Board specifically focuses on the patient’s progress. They consider the patient’s mental condition, based on factors such as psychiatric reports, long term care assessment reports and other relevant reports on the mental health of the patient; the patient’s rights and liberties; and the patient’s other needs. Some individuals may appear at the hearing to provide testimony and answer questions while other information may be contained in reports that the Review Board will have reviewed16.

The Review Board must determine whether there has been any change in the patient’s circumstances since the disposition was made or reviewed. If so, the Board must determine if the change is enough to safely permit discharge of the patient. In making a disposition order, the Board has a dual role of balancing the need to protect the public from dangerous persons and addressing the needs of the patient. If there is no change, it would be expected that the patient would stay in the hospital.

Those presenting evidence at the hearing are the witnesses. They will make submissions and can be questioned by the Review Board and counsel17. Support people, victims, family members and any members of the public are attendees, and do not participate in the hearing (although a victim may read their victim impact statement, if they have been granted permission by the Review Board18.)

After all evidence is presented and submissions have been made, the Review Board makes its decision or disposition. The victims will not be told the disposition or reasons for it at the hearing – they must wait to receive it in writing and this usually takes a few weeks. Legally, the Board must make a disposition that is the least restrictive to the patient’s freedom consistent with public safety19. For example, if the Board finds the person is no longer a risk to the public and can be safely managed in the community, they must release that person.

If the Review Board orders a conditional discharge, can it place restrictions on the patient?

Yes, if the person is living in the community, the Review Board may order “conditions of release” such as living in a specified place of residence, keeping the peace and being of good behaviour, and requiring the patient to attend a community mental health centre for follow-up with a psychiatrist and other healthcare professionals (including those who may monitor medications). They may prohibit the patient from using illicit drugs and alcohol or possessing firearms or other weapons and restrict the patient from travelling within and/or outside his or her community of residence. The Board may also restrict the patient from contacting the victim or others20.

What if a victim has concerns about his/her safety?

A victim who has concerns about their safety should contact victim services or the Crown’s office to request a meeting to discuss their safety concerns. These concerns must be considered by the Review Board21, and they may result in additional conditions being placed on the patient; these conditions may include a non-communication order, preventing them from contacting the victim22.

What if the patient disobeys a condition?

If a patient disobeys conditions in the disposition order, it could result in his or her arrest, an appearance in court and/or a review of the matter by the Review Board23. For example, if the patient breaks a condition by contacting a victim, the victim should call the police and the police may arrest the patient. If arrested, the patient will go before the court, which will determine whether he or she breached a condition of the disposition order. The Court could release the patient back into the community or order the detention of the patient at a hospital until there is a Review Board hearing24. For example, if they find the patient broke a condition but it was minor, they may release him/her back into the community. The Review Board can hold a discretionary hearing at any time to review a matter.

Karen’s story

An acquaintance attacked me, slit my throat, stabbed me in the chest and left me to die in a garbage can in 2007. An off-duty police officer found me and saved my life. The offender was charged with attempt to commit murder, aggravated assault and forcible confinement, but was found not criminally responsible. Since the attack, he has been held in a mental health centre/hospital.

I remain very fearful of the offender and have never personally attended a hearing. I did submit an impact statement in the beginning but do not update it annually. A victim services advocate attends the Review Board hearings for me each year, as I do not ever want to see him again. She writes notes about what the lawyers and doctors say at the hearing and provides them to me to read over. I appreciate so much that she attends for me and keeps me updated about his psychiatric treatment and the Board’s dispositions.

I do think the NCR finding was for the best, as he probably would have been released from the prison system sooner. I worry that he will not take his medications once he is released from the hospital without any supervision. I feel an increasing need for counselling as the years go by.

  1. Criminal Code, R.S.C 1985, c. C-46, s. 672.45(1)
  2. Criminal Code, R.S.C 1985, c. C-46, s. 672.45(1.1)
  3. Criminal Code, R.S.C 1985, c. C-46, s. 672.38(1)
  4. Criminal Code, R.S.C 1985, c. C-46, s. 672.4(1)
  5. Criminal Code, R.S.C 1985, c. C-46, s. 672.39
  6. Criminal Code, R.S.C 1985, c. C-46, s. 672.41
  7. Criminal Code, R.S.C 1985, c. C-46, s. 672.54(c)
  8. Criminal Code, R.S.C 1985, c. C-46, s. 672.54(b)
  9. Criminal Code, R.S.C 1985, c. C-46, s. 672.54(a)
  10. Criminal Code, R.S.C 1985, c. C-46, s. 672.81(1)
  11. Criminal Code, R.S.C 1985, c. C-46, s. 672.81(1.31)
  12. Criminal Code, R.S.C 1985, c. C-46, s. 672.82(1)
  13. Criminal Code, R.S.C 1985, c. C-46, s. 672.1(1)
  14. Criminal Code, R.S.C 1985, c. C-46, s. 672.5(6)
  15. Criminal Code, R.S.C 1985, c. C-46, s. 672.54
  16. Criminal Code, R.S.C 1985, c. C-46, s. 672.54
  17. Criminal Code, R.S.C 1985, c. C-46, s. 672.5(11)
  18. Criminal Code, R.S.C 1985, c. C-46, s. 672.5(15.1)
  19. Criminal Code, R.S.C 1985, c. C-46, s. 672.54
  20. Criminal Code, R.S.C 1985, c. C-46, s. 672.54(b)
  21. Criminal Code, R.S.C 1985, c. C-46, s. 672.542
  22. Criminal Code, R.S.C 1985, c. C-46, s. 672.542
  23. Criminal Code, R.S.C 1985, c. C-46, s. 672.91
  24. Criminal Code, R.S.C 1985, c. C-46, s. 672.93(2)