The Provincial and Territorial Review Boards

• Author: Rakesh Lamba
• Pages: 673-701

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CH APTER 31

The Provincial and Territorial

Review Boards

Rakesh Lamba

I. INTRODUCTION

Most legal systems and jurisdictions make special provisions for the detention and care of accused per-

sons who either cannot participate in the legal process due to mental illness (see Chapter 12: Fitness

to Stand Trial) or are exempted from criminal and penal consequences due to compromised mental

state at the time an otherwise criminal act is committed (see Chapter 14: Not Criminally Responsible

on Account of Mental Disorder). In Canada, accused who are found unt or not criminally responsible

(NCRMD) are subject to the jurisdiction of the provincial or territorial Review Board in the province or

territory where the oence was committed.

e stigma persons with mental illness have historically faced is a foreground issue in international

mental health and legal circles, and has developed as a core focus for the recently formed Mental Health

Commission of Canada (ww w.mentalhealthcommission.ca/english/pages/default.aspx). e plight of

the mentally ill was captured poignantly by Chief Justice Lamer in R. v. Swain (1991) in the following

comment (at para. 39):

e mentally ill have historically been the subjects of abuse, neglect, and discr imination in our society.

e stigma of mental illness ca n be very damagi ng. [One] intervener, [in the Swain case] describes the

historical treatment of the mentally il l as follows:

For centuries, persons with a mental disabil ity have been systematically isolated, segregated from the

mainstream of society, devalued, ridiculed, and excluded from the participation in ordina ry social

and political processes.

e above described is, in my view, unfortunately accurate and appears to stem from an i rrational fear of

the mentally ill in ou r society.

It is worth bearing in mind that apart from the stigma of mental illness, and the stigma of police

involvement and criminal prosecution, patients/accused found unt, or NCRMD, become known as

“mentally disordered oenders” and/or “forensic patients.” e math is straightforward — it amounts to

a “triple stigma.”

Part XX.1 of the Criminal Code codies the rules with respect to the operation of Review Boards

and the criteria they rely upon for decision making. At the core of the scheme, Review Boards are rstly

directed to determine whether the statutory criteria are met for continuing jurisdiction of an unt or

NCRMD accused, and if so, to fashion the least onerous and least restrictive circumstances in which

to detain, manage, and treat him or her consistent with public safety. e central tenant of the Review

Board’s mandate is, in fact, the safety of the public, but insuring public safety is explicitly to be carried

out in a way that exacts the smallest possible toll on an accused’s liberty, and with his or her rehabilitative

and other needs in the forefront.

Rakesh Lamba

is chapter will review the history and workings of the provincial and territorial Review Board sys-

tem, and provide guidance to medical, psychological, and legal practitioners working with it.

II. REVIEW BOARDS AND THE CRIMINAL CODE

In 1992, the Canadian Parliament introduced sweeping changes to the sections of the Criminal Code

that deal with people who are found to be either unt to stand trial (UST) or not criminally responsible

on account of mental disorder (NCRMD, previously “not guilty by reason of insanity” or NGRI.) ese

changes constitute the rst extensive revision of the provisions dealing with mentally disordered accused

in 100 years. e changes were a result of a direction to Parliament by the Supreme Court of Canada at

the conclusion of its decision in R. v. Swain. In that case, the Court found that the provisions relating to

mentally disordered accused and, in particular, the failure of the Code to specify a time within which

the accused’s status must be reviewed aer a nding of not guilty by reason of insanity, ran afoul of the

Canadian Charter of Rights and Freedoms protection that prohibits deprivation of liberty except in ac-

cordance with the principles of fundamental justice. e Supreme Court found further shortcomings

with the provisions, which resulted in an order sending the matter back to Parliament. Prior to 1992,

the Criminal Code did not contain any provisions allowing accused to challenge their detention by the

predecessor Lieutenant Governor’s Boards, nor were there any provisions addressing how the provincial

governments, which have jurisdiction over their accused, were supposed to meet their responsibilities.

e changes to the Criminal Code enacted on 4 February 1992 required each province and territory

to establish a Review Board to administer the provisions of the Code that deal with accused found to be

either UST or NCRMD. e Lieutenant Governor of the province, who had previously made decisions

concerning the fate of UST or NGRI accused, was no longer part of the scheme. In reality, the Lieutenant

Governor would have had no knowledge of the accused and was not involved in the process in any way.

A decision by the Lieutenant Governor was a mere “rubber stamp.” It was time this anachronism was

abolished. With the new scheme, the Lieutenant Governor’s “advisory boards” were eliminated and were

converted into “adjudicative boards.” For the most part, the provisions of Bill C-30 are now contained in

Part XX.1 of the Criminal Code, which is, in eect, a m ini-code within the Code that sets out how we are

to deal with mentally disordered accused.

Note that the Review Boards established by way of Part XX.1 of the Criminal Code are unrelated to

and have an entirely dierent mandate than the Review Boards established under civil mental health

legislation. ese latter boards, constituted pursuant to mental health and capacity legislation of the

province or territory, vary from jurisdiction to jurisdiction and are variously referred to as “consent and

capacity board,” “review panel,” or “psychiatric facilities Review Board.” ey are charged with assessing

issues such as certiability and various competencies such as capacity to consent to treatment and ability

to manage estates.

III. HISTORICAL BACKGROUND

e modern-day Review Board system nds its antecedents in the turn of the nineteenth century case of

Rex. v. Hadeld (O’Marra, 1993). James Hadeld was accused of shooting at King George III but, at trial,

was found not guilty as he was found to be insane at the time of the incident. Upon the verdict, under the

law as it existed at that time, the court had the power either to release him because he had been acquitted,

or to put him directly back in prison. Given the state of Hadeld’s mental health, Lord Kenyon, the Chief

Justice, determined that neither option was suitable. He determined:

e prisoner, for his own sake, and for the sake of society at large, must not be discharged; for this is a

case which concerns every man of every stat ion, from the King upon the rone to the beggar at the gate;