Recent Cases

Once a finding of Not Criminally Responsible by Reason of Mental Disorder (NCRMD) has been made, the Criminal Code allows for multiple options but has timelines associated with each.

Section 672.45 allows for a Court to make a disposition if it is readily able to do so. The Court can either discharge the accused absolutely or on conditions. If a disposition hearing is not held or the Court refuses to grant a disposition, then the NCRMD accused must have a hearing before the Review Board within 45 days.

Section 672.5 sets out the procedures for a disposition hearing. The key issue at a hearing is whether the accused poses a “significant threat to public safety.” If the Court concludes the accused is not a “significant threat” then either an absolute or conditional discharge is required. However, section 672.54(c) allows for the accused to be detained in a hospital pending oversight by the Review Board.

Winko c C-B (Forensic Psychiatric Institute) is the leading decision on the analysis required with respect to the assessment of “significant threat” and the disposition issue.

Justice McLachlin, writing for the majority, concluded:

I conclude that Part XX.1 of the Criminal Code protects the liberty, security of the person, and the equality interests of those accused who are not criminally responsible (“NCR”) on account of a mental disorder by requiring that an absolute discharge be granted unless the court or Review Board is able to conclude that they pose a significant risk to the safety of the public. It follows that Part XX.1 does not deprive mentally ill accused of their liberty or security of person in a manner contrary to the principles of fundamental justice. Nor does it violate their right to equal treatment under the law.2

I recently represented an accused who was charged with animal cruelty and criminal harassment. He believed his roommate’s pet was an android sent from the future to spy and report on him. As a result of his beliefs, he killed the animal. He believed the android was a realistic version an actual animal and noted that the technology in the future had evolved. After my client was arrested, he was detained and held in a hospital under the Mental Health Act. During his time in the hospital, a multidisciplinary team provided care, diagnosed him, and provided treatment.

My client had no criminal record and was clearly not morally responsible for his actions. As a result, we began a multiple staged hearing process to achieve his desired goal. At the end of the day, he wanted to be found NCRMD, but he wanted to be conditionally discharged thereby minimizing his interactions with the Alberta Review Board.

Stage one of the hearing process was to present evidence to the Court in order to allow the Court to make the NCRMD finding. Stage two was to seek a disposition hearing and ask the Court to discharge my client on conditions.

At the second stage of the hearing, multiple doctors were called and gave evidence. The prosecutor’s position was that the Court ought not make a disposition because her position was that no risk assessment had been completed.

My position was that there was enough evidence on the record to allow the court to make a disposition. The key issue is whether there is evidence to demonstrate that my client posed a “significant threat”. The majority in Winko wrote:

To engage these provisions of the Criminal Code, the threat posed must be more than speculative in nature; it must be supported by evidence: D.H. v. British Columbia (citation omitted). The threat must also be “significant” both in the case that there must be a real risk of physical or psychological harm occurring to individuals in the community and in the sense that this potential harm must be serious. A minuscule risk of grave harm will not suffice. Similarly, a high risk of trivial harm will not meet the threshold. Finally, the conduct or activity creating the harm must be criminal in nature: Chambers v British Columbia (citation omitted). In short, Part XX.1 can only maintain its authority over an NCR accused where the court or Review Board concludes that the individual poses a significant risk of committing a serious criminal offence. If that finding of significant risk cannot be made, there is no power in Part XX.1 to maintain restraints on the NCR accused’s liberty.

The prosecutor wanted a risk assessment and based her position on the lack of having such an assessment. While risk assessments are helpful, they are not mandatory at a disposition hearing. Furthermore, there is no onus on either party to produce evidence of a significant threat, but the legislation is clear that if there is no evidence the NCRMD accused poses a significant threat then a either an absolute or conditional discharge is the only option.

Of course, my client was fearful that the law would be used against him as a sword and not a shield resulting in him being remanded to a hospital or the “loony bin” as he called it. However, this case demonstrates the fundamentals of the NCR provisions. They are plentiful and complex. Courts of Appeal are continuously interpreting the Winko decision and either upholding the Review Board decisions or reversing them. It is critical to have a skilled and strategic lawyer at your side. Fortunately, my client had me. I used the law as a shield to protect and minimize the impact of the Review Board.