Dispositions

• Author: Hy Bloom, Richard D Schneider
• Pages: 298-316

298

chapter nine

Dispositions

A. THE TWO-STEP HEARING

Whether the accused is under the jur isdiction of the court or review boa rd

as unf‌it or NCR, the process of making a d isposition (and the hearing itself)

necessarily contemplates a two-step inquir y or bifurcated process. Step one

involves establishing jurisdict ion over an accused. In the case of an unf‌it

accused, jurisdict ion is maintained when it is determined t hat the accused

continues to be unf‌it to stand tria l, or that the accused is permanently unf‌it

but a signif‌icant threat to the safet y of the public. A determination by t he

board that the accused is f‌it results in a ret urn of the accused to court where

the f‌itness issue will be ret ried.

In the case of NCR accused, jurisdic tion is maintained over the person

when the board makes an aff‌ir mative f‌inding that the accused continues to

represent a signif‌icant threat to the safet y of the public. Where the person

found to be NCR no longer poses such a threat, the board loses jurisd iction

over the accused; the accused must be absolutely discha rged. (A “discharge”

under Part XX .1 should not be confused with the same term inology used

in the sentencing provisions of the Crimin al Code.1 Accordin gly, probation is

never part of such an order.)

Failure to f‌ind that the “mental disorder” that was t he basis for verdict of

NCR does not result in an absolute discharge in that it is the accused’s “men-

tal condition” that must, at this junct ure, be considered.2

Once jurisdiction is established, step t wo involves a detailed inquiry into

the type of disposit ion (e.g., custodial or conditional discharge from hospital),

and what types of conditions and restrict ions (e.g., privileges or limitations

1 RSC 1985, c C-46 [Criminal Co de].

2 R v Jones (1994), 87 CCC (3d) 350 (Ont CA).

Chapter Nine: Dispositions 299

of movement) are the “least onerous and least restrictive.” While apparently

not intended to change the test in a substantive way, the threshold of “least

onerous and least restrictive” has been cha nged with Bill C-14 (see be low)

to “necessary and appropriate in the circumst ances.” Part XX.1 c learly stipu-

lates that “treatment” shall not be a pa rt of any disposition under section

672.54 unless the accused consents and such a condition is reasonable and

necessary in the interests of the accuse d (from subsection 672.55(1)).

The disposition hearing is conducted in accordance with se ction 672.5 of

the Cr iminal Cod e.3 Any party is able to present evidence, call a w itness, or

make a submission during the heari ng.4 Under subsection 672.5(14), victims

have the right to f‌ile an impact statement where they descr ibe the harm in-

f‌licted upon them due to the crim inal offence.5 Section 672 .541 require s the

court or review board to take any impact st atement into consideration while

determining t he appropriate disposition to the extent that it is relevant.6

B. RE VIEW BOARD HEARING: NCR ACCUSED

The disp osition-makin g provisions of Part X X.1 are set out in section 672 .54

of the Criminal C ode.

Section 672.54 provides that the cour t or review board must consider the

following factors in arriv ing at a disposition:

1) t he need to protect the public from dangerous persons ((with Bill C-1 4)

the para mount consideration);

2) the mental condition of the accused;

3) the reintegration of the accused into the societ y; and

4) t he other needs of the accused.

An accused must be discha rged absolutely unless the court (at f‌irst in-

stance) or review board is able to f‌ind aff‌irmatively t hat the accused is a sig-

nif‌icant threat to the safet y of the public.7 In Winko, the Supreme Court of

Canada8 indicated that “signif‌icant threat ” means a real risk of p hysical or

psychological harm (wit h Bill C-14 — now section 672.5401 — signif‌icant

threat has been redef‌ined as “a risk of serious physica l or psychological

3 Above note 1.

4 Ibid, ss 672.5(2) and 672.5(11).

5 Ibid, s 672.5(14).

6 Ibid, s 672.541.

7 See Win ko v British Columbia (Forens ic Psychiatric Ins titute), [1999] 2 SCR 625 [Winko].

8 Ibid.