Nature of Review Board Hearings
Unlike most criminal and civil proceedings, Review Board hearings are not an adversarial process where the decision-maker is “passive” and the parties have legal burdens to prove various facts. In practice, the Review Board necessarily relies on the parties, who have the best access to information, to bring forward the relevant evidence on the relevant issues. Those parties will often take conflicting – even “adversarial” – positions before the Board.
What makes Review Board hearings unique is that there is no legal burden on the Director or the Crown to prove that the accused is dangerous, and no burden on the accused to prove that he or she is not dangerous. The Review Board hearing is an inquiry. The Review Board is expected to play an active role. As stated in Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 SCR 625:
The system is inquisitorial. It places the burden of reviewing all relevant evidence on both sides of the case on the court or Review Board. The court or Review Board has a duty not only to search out and consider evidence favouring restricting NCR accused, but also to search out and consider evidence favouring his or her absolute discharge or release subject to the minimal necessary restraints, regardless of whether the NCR accused is even present. This is fair, given that the NCR accused may not be in a position to advance his or her own case. The legal and evidentiary burden of establishing that the NCR accused poses a significant threat to public safety and thereby justifying a restrictive disposition always remains with the court or Review Board. [par 54]
To achieve its purposes, hearings are public, and the Review Board has the power to hear witnesses, including expert evidence tendered by the parties, and to seek out and obtain records.
A “party” is a person with the right to receive notice of a court or administrative tribunal hearing, and the right to fully participate in the hearing (for example, the right to express a position, to give evidence, and to ask questions of other parties). The three parties that participate in most Review Board hearings are:
- the NCRMD or unfit accused,
- the Director of Adult or Youth Forensic Psychiatric Services (“Director”), and
- the provincial Attorney General.
Parties are entitled to be represented at hearings by counsel or other representative.
Lawyers or trained lay advocates represent all unfit accused and most NCRMD accused at Review Board hearings. These legal services are provided primarily by the Community Legal Assistance Society (CLAS), but may also be private defence counsel. Where no counsel or advocate has been retained by the accused, the Criminal Code requires the Review Board to assign a lawyer for any accused who is unfit to stand trial, and gives the Board the power to assign counsel for any NCRMD accused where the Chair determines this to be necessary to ensure a fair hearing. No accused is unrepresented at Review Board hearings unless they refuse representation.
In addition to the accused, the Director, and the Crown, other persons occasionally have party status before the Review Board. For example, where a young person is found unfit or NCRMD, the Youth Criminal Justice Act requires the accused’s parents to receive a separate party status where they attend the hearing or otherwise take an active interest in the proceeding. The Review Board also has general discretion to designate as a party any person who has a substantial interest in protecting the interests of the accused.
Where an accused becomes a “dual status offender” (see “Placement Hearings” below), the Minister of Public Safety and Emergency Preparedness or the relevant Minister responsible for corrections must be given notice of any hearing.
After a court decision that an accused is not criminally responsible or unfit to stand trial, the court may make an initial disposition or may refer the accused to the Review Board. Part XX.1 provides for subsequent reviews until such time as the Review Board either absolutely discharges an NCRMD accused, or finds that a previously unfit accused is now fit to stand trial and should be returned to court. Part XX.1 creates five situations requiring a Review Board hearing.
1. First Review Board Hearing – 45 days from verdict: Part XX.1 allows the court issuing the NCRMD or unfit to stand trial verdict to:
(a) hold its own disposition hearing and to issue the initial disposition, or
(b) to refer the matter to the Review Board.
In practice, most courts defer to the Review Board to make the first disposition. In these cases, the Review Board must hold a hearing and make a disposition within 45 days of the verdict. The court may impose any conditions for bail or detention of the accused that are to apply in the meantime.
2. First Review Board Hearing – 90 days from verdict: If the court conducts its own disposition hearing and makes an order of conditional discharge or custody, the Review Board must hold a hearing and review the court’s disposition within 90 days of the verdict.
In exceptional circumstances, the court may choose to defer the matter to the Review Board but also provide for an extension of time. In these cases, the court may extend the time to hold a hearing up to 90 days.
3. Mandatory Periodic Reviews: Part XX.1 addresses the need for ongoing periodic review after the first disposition, as follows:
The Review Board must hold a hearing at least once every 12 months to review any previous disposition of conditional discharge or custody.
The Review Board must also hold a disposition hearing in any of the following situations:
- where a justice is satisfied that an accused has contravened or failed to comply with a disposition or an assessment order, and has ordered that accused be returned to the place that is specified in the disposition or assessment order,
- where the person in charge of the accused has increased the restrictions on the liberty of the accused significantly for a period exceeding seven days,
- where the person in charge of the accused (i.e. the forensic service) requests a review of the disposition, or
- where an accused is detained in custody pursuant to a Review Board disposition and a sentence of imprisonment is imposed on the accused in respect of another office.
4. Discretionary Periodic Review: The Review Board has discretion to hold a hearing at any time, on its own motion or at the request of the accused or any other party (i.e. the accused, the Crown, or another designated party).
5. Placement Hearings for “dual status offenders”: Where an NCRMD or unfit accused is detained in custody under a Review Board order, and is later convicted of a crime and sentenced to custody (“dual status offenders”), the Review Board may choose to hold a “placement hearing” if the Board is of the opinion that the place of custody is inappropriate to meet the mental health needs of the offender or to safeguard the well-being of other persons. A placement hearing requires the Board to decide whether the accused should be detained in a hospital or in a prison.
Most Review Board hearings are held at the Forensic Psychiatric Hospital in Port Coquitlam. If an accused currently resides in the community under conditions, hearings may be held at a location closer to that community.
The Criminal Code allows the accused to participate in their hearing by video if they agree.
Review Board hearings are usually informal. However, because of the Canadian Charter of Rights and Freedoms interests at stake, the Review Board must ensure that informality does not compromise the accused’s right to be treated in a procedurally fair manner. The accused must receive proper notice of reports, receive copies of all reports, have a full chance to give evidence and ask questions, and receive a decision from a panel that is, and appears to be, objective and independent.
Prior to every hearing the Director will prepare and submit relevant reports. There will be a report from the accused’s treating psychiatrist in every case, as well as other relevant reports, for example from a “Review Board Liaison”, whose reports summarize the accused’s course in hospital, or others such as social workers. These reports are submitted in sufficient time to permit the other parties time to consider them. If any other party plans to submit a report for consideration, these must similarly be provided in advance of the hearing.
Review Board hearings normally take between one to two hours to complete. Each hearing begins with the panel and all of the parties introducing themselves, followed by each party that is present providing their opening position.
The hearing begins with evidence from the Director. The psychiatrist may provide a summary or an update of their report, and will then be asked questions by the other parties and the members of the Review Board. The Director may call additional witnesses, as may the Crown or, in rare instances, the Review Board itself. The Board then hears evidence from the accused, who is also subject to questions from the other parties and the panel. The Review Board hears closing submissions, then it deliberates in private. It may announce its decision at that time or reserve its decision.
Hearings are held in person, or by video with accused’s agreement. The Board sometimes receives evidence by telephone where this can be done fairly. All hearings are recorded. Oaths may be but are not usually taken.
Section 672.54 (b) and (c) authorize the Review Board to discharge or detain an accused, “subject to such conditions as the (…) Review Board considers appropriate.” The choice of appropriate conditions is within the sole discretion of the Board.
Where the Review Board does not grant an absolute discharge, the Criminal Code makes the Review Board responsible for crafting conditions that are relevant to the special and differing needs of each accused person and case. It does not impose any pre-ordained set of conditions for Review Board orders, aside from the overriding statutory requirements to always impose the “least onerous and least restrictive” disposition and conditions, which maximize an accused’s liberties consistent with public safety.
If the panel is satisfied that the risk an accused poses to public safety can be managed in the community, it may discharge them subject to conditions.
These conditions will almost always include:
- that they be subject to the direction and supervision of the Director of the hospital;
- that they reside in a place considered appropriate by the Director and not change their residence without prior notification to, and approval of the Director;
- that as required by the Director, they attend and report to the Adult Forensic Psychiatric Clinic nearest to where they live, for purposes of assessment, counselling, assisting them with regard to any treatment, promoting their reintegration into society, or monitoring their compliance with their order; and
- that they go to and stay at the Forensic Psychiatric Hospital where the Director is of the opinion the accused’s mental condition requires assessment.
It may also include conditions tailored specifically to the accused’s circumstances, such as no contact orders, vehicle prohibitions, firearms and weapons prohibitions, or prohibitions and/or testing for alcohol, cannabis, intoxicating substances, or unprescribed drugs.
Where the panel is of the view that the risk the accused presents cannot be managed in the community, it may order that the accused be detained in the Forensic Psychiatric Hospital. Unlike other provinces, British Columbia only has one designated hospital.
Custody order conditions include:
- that the accused be subject to the direction and supervision of the Director of the hospital; and
- that as required by the Director, they attend at any time and place for purposes of assessment, counselling, assisting them with regard to any treatment, promoting their reintegration into society, or monitoring their compliance with their order.
Similar to a conditional discharge, the order may also include other conditions relevant to the accused’s circumstances.
The order may also permit the accused access to the community (at the discretion of the Director) in the form of:
- escorted or unescorted access to the community, depending on the accused’s mental condition and having regard for the risk they pose to themselves or others; and
- overnight stays for periods not exceeding either 28 or 60 days, for the purposes or reintegrating them into society.
The Supreme Court of Canada has confirmed that the Board’s dispositions and, in turn, its conditions, may be directed toward, and are considered binding on, other parties in addition to the accused person. For example, the Board may order that the Director prepare a specific type of assessment before the next hearing, or work with Community Living BC (CLBC) to develop a plan for an accused’s safe reintegration into the community.
For convenience and consistency of language, sample conditions that are commonly found in conditional discharge and custody orders are provided to the panel chair. The panel must nonetheless always ensure that the case justifies the condition rather than having the “standard” nature of the condition dictate its inclusion in an order.
Under s. 672.55 (1), the Board has no power to impose a condition that an accused submit to treatment unless the accused consents to that condition and the Review Board considers the condition to be reasonable and necessary in the interests of the accused.
Although the Board may not “prescribe” treatment, its orders and conditions may relate to or supervise the treatment provided to an accused person.