AuthorHy Bloom, Richard D Schneider
chapter nine
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
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.

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