Review Board Hearing Procedure

From Criminal Law Notebook

General Principles

Procedure at disposition hearing

672.5 (1) A hearing held by a court or Review Board to make or review a disposition in respect of an accused, including a hearing referred to in subsection 672.84(1) [review of finding – high-risk accused – requirements] or (3) [high-risk accused – review], shall be held in accordance with this section.
[omitted (2), (3), (4), (5), (5.1) and (5.2)]

Order excluding the public

(6) Where the court or Review Board considers it to be in the best interests of the accused and not contrary to the public interest, the court or Review Board may order the public or any members of the public to be excluded from the hearing or any part of the hearing.
[omitted (7), (8), (8.1), (8.2) and (9)]

Removal or absence of accused

(10) The court or the chairperson of the Review Board may

(a) permit the accused to be absent during the whole or any part of the hearing on such conditions as the court or chairperson considers proper; or
(b) cause the accused to be removed and barred from re-entry for the whole or any part of the hearing
(i) where the accused interrupts the hearing so that to continue in the presence of the accused would not be feasible,
(ii) on being satisfied that failure to do so would likely endanger the life or safety of another person or would seriously impair the treatment or recovery of the accused, or
(iii) in order to hear, in the absence of the accused, evidence, oral or written submissions, or the cross-examination of any witness concerning whether grounds exist for removing the accused pursuant to subparagraph (ii).
Rights of parties at hearing

(11) Any party may adduce evidence, make oral or written submissions, call witnesses and cross-examine any witness called by any other party and, on application, cross-examine any person who made an assessment report that was submitted to the court or Review Board in writing.

Request to compel attendance of witnesses

(12) A party may not compel the attendance of witnesses, but may request the court or the chairperson of the Review Board to do so.

Video links

(13) If the accused so agrees, the court or the chairperson of the Review Board may permit the accused to appear by closed-circuit television or videoconference for any part of the hearing.

Adjournment

(13.1) The Review Board may adjourn the hearing for a period not exceeding thirty days if necessary for the purpose of ensuring that relevant information is available to permit it to make or review a disposition or for any other sufficient reason.

Determination of mental condition of the accused

(13.2) On receiving an assessment report, the court or Review Board shall determine whether, since the last time the disposition in respect of the accused was made or reviewed there has been any change in the mental condition of the accused that may provide grounds for the discharge of the accused under paragraph 672.54(a) [absolute discharge – review board] or (b) [conditional discharge – review board] and, if there has been such a change, the court or Review Board shall notify every victim of the offence that they are entitled to file a statement in accordance with subsection (14) [procedure at disposition hearing – victim impact statements].
[omitted (13.3) and (14)]

Copy of statement

(15) The court or Review Board shall ensure that a copy of any statement filed in accordance with subsection (14) [procedure at disposition hearing – victim impact statements] is provided to the accused or counsel for the accused, and the prosecutor, as soon as practicable after a verdict of not criminally responsible on account of mental disorder is rendered in respect of the offence.

Presentation of victim statement

(15.1) The court or Review Board shall, at the request of a victim, permit the victim to read a statement prepared and filed in accordance with subsection (14) [procedure at disposition hearing – victim impact statements], or to present the statement in any other manner that the court or Review Board considers appropriate, unless the court or Review Board is of the opinion that the reading or presentation of the statement would interfere with the proper administration of justice.

Inquiry by court or Review Board

(15.2) The court or Review Board shall, as soon as practicable after a verdict of not criminally responsible on account of mental disorder is rendered in respect of an offence and before making a disposition under section 672.45 [disposition hearings], 672.47 [disposition hearing where court does not] or 672.64 [finding re high-risk accused], inquire of the prosecutor or a victim of the offence, or any person representing a victim of the offence, whether the victim has been advised of the opportunity to prepare a statement referred to in subsection (14) [procedure at disposition hearing – victim impact statements].

Adjournment

(15.3) On application of the prosecutor or a victim or of its own motion, the court or Review Board may adjourn the hearing held under section 672.45 [disposition hearings], 672.47 [disposition hearing where court does not] or 672.64 [finding re high-risk accused] to permit the victim to prepare a statement referred to in subsection (14) [procedure at disposition hearing – victim impact statements] if the court or Review Board is satisfied that the adjournment would not interfere with the proper administration of justice.
(16) [Repealed, 2015, c. 13, s. 22]
1991, c. 43, s. 4; 1997, c. 18, s. 84; 1999, c. 25, s. 11(Preamble); 2005, c. 22, ss. 16, 42(F); 2014, c. 6, s. 7; 2015, c. 13, s. 22; 2019, c. 25, s. 277.
[annotation(s) added]

Constitution

The review board has jurisdiction to decide constitutional issues.[1]

Section 672.5(6) excluding the public does not violate s. 7 or 15 of the Charter.[2]

  1. R v Conway, 2010 SCC 22 (CanLII), [2010] 1 SCR 765, per Abella J (9:0)
  2. Blackman v British Columbia (Review Board), 1995 CanLII 3437 (BC CA), 95 CCC (3d) 412, per Taylor JA (3:0)

Parties

672.5
[omitted (1) and (2)]

Attorneys General may be parties

(3) On application, the court or Review Board shall designate as a party the Attorney General of the province where the disposition is to be made and, where an accused is transferred from another province, the Attorney General of the province from which the accused is transferred.

Interested person may be a party

(4) The court or Review Board may designate as a party any person who has a substantial interest in protecting the interests of the accused, if the court or Review Board is of the opinion that it is just to do so.
[omitted (5), (5.1), (5.2), (6), (7), (8), (8.1), (8.2), (9), (10), (11), (12), (13), (13.1), (13.2), (13.3), (14), (15), (15.1), (15.2), (15.3) and (16)]
1991, c. 43, s. 4; 1997, c. 18, s. 84; 1999, c. 25, s. 11(Preamble); 2005, c. 22, ss. 16, 42(F); 2014, c. 6, s. 7; 2015, c. 13, s. 22; 2019, c. 25, s. 277.

CCC (CanLII), (DOJ)


Note up: 672.5(3) and (4)

Notice of Hearing

672.5
[omitted (1), (2), (3) and (4)]

Notice of hearing

(5) Notice of the hearing shall be given to the parties, the Attorney General of the province where the disposition is to be made and, where the accused is transferred to another province, the Attorney General of the province from which the accused is transferred, within the time and in the manner prescribed, or within the time and in the manner fixed by the rules of the court or Review Board.

Notice

(5.1) At the victim’s request, notice of the hearing and of the relevant provisions of the Act shall be given to the victim within the time and in the manner fixed by the rules of the court or Review Board.

Notice of discharge and intended place of residence

(5.2) If the accused is discharged absolutely under paragraph 672.54(a) [absolute discharge – review board] or conditionally under paragraph 672.54(b) [conditional discharge – review board], a notice of the discharge and accused’s intended place of residence shall, at the victim’s request, be given to the victim within the time and in the manner fixed by the rules of the court or Review Board.
[omitted (6), (7), (8), (8.1), (8.2), (9), (10), (11), (12), (13), (13.1), (13.2), (13.3), (14), (15), (15.1), (15.2), (15.3) and (16)]
1991, c. 43, s. 4; 1997, c. 18, s. 84; 1999, c. 25, s. 11(Preamble); 2005, c. 22, ss. 16, 42(F); 2014, c. 6, s. 7; 2015, c. 13, s. 22.
[annotation(s) added]

CCC (CanLII), (DOJ)


Note up: 672.5(5), (5.1) and (5.2)

Form of Hearing

672.5
[omitted (1)]

Hearing to be informal

(2) The hearing may be conducted in as informal a manner as is appropriate in the circumstances.
[omitted (3), (4), (5), (5.1), (5.2), (6), (7), (8), (8.1), (8.2), (9), (10), (11), (12), (13), (13.1), (13.2), (13.3), (14), (15), (15.1), (15.2), (15.3) and (16)]
1991, c. 43, s. 4; 1997, c. 18, s. 84; 1999, c. 25, s. 11(Preamble); 2005, c. 22, ss. 16, 42(F); 2014, c. 6, s. 7; 2015, c. 13, s. 22; 2019, c. 25, s. 277.

CCC (CanLII), (DOJ)


Note up: 672.5(2)

The board has "inquisitorial duties", which a duty to "search out and consider evidence". This duty applies whether or not the accused is present or not.[1]

  1. R v Lepage, 2006 CanLII 37775 (ON CA), 214 CCC (3d) 105, per Juriansz JA (3:0)

Defence Counsel

672.5
[omitted (1), (2), (3), (4), (5), (5.1), (5.2) and (6)]

Right to counsel

(7) The accused or any other party has the right to be represented by counsel.

Assigning counsel

(8) If an accused is not represented by counsel, the court or Review Board shall, either before or at the time of the hearing, assign counsel to act for any accused

(a) who has been found unfit to stand trial; or
(b) wherever the interests of justice so require.
Counsel fees and disbursements

(8.1) Where counsel is assigned pursuant to subsection (8) [assigning counsel] and legal aid is not granted to the accused pursuant to a provincial legal aid program, the fees and disbursements of counsel shall be paid by the Attorney General to the extent that the accused is unable to pay them.

Taxation of fees and disbursements

(8.2) Where counsel and the Attorney General cannot agree on the fees or disbursements of counsel, the Attorney General or the counsel may apply to the registrar of the court and the registrar may tax the disputed fees and disbursements.

Right of accused to be present

(9) Subject to subsection (10) [removal or absence of accused], the accused has the right to be present during the whole of the hearing.
[omitted (10), (11), (12), (13), (13.1), (13.2), (13.3), (14), (15), (15.1), (15.2), (15.3) and (16)]
1991, c. 43, s. 4; 1997, c. 18, s. 84; 1999, c. 25, s. 11(Preamble); 2005, c. 22, ss. 16, 42(F); 2014, c. 6, s. 7; 2015, c. 13, s. 22; 2019, c. 25, s. 277.
[annotation(s) added]

CCC (CanLII), (DOJ)


Note up: 672.5(7), (8), (8.1), (8.2), and (9)


Amicus Curae

Section 672.5(8) permits the board to appoint an animus curae."[1]

Victims

672.5
[omitted (1), (2), (3), (4), (5), (5.1), (5.2), (6), (7), (8), (8.1), (8.2), (9), (10), (11), (12), (13), (13.1) and (13.2)]

Notice to victims — referral of finding to court

(13.3) If the Review Board refers to the court for review under subsection 672.84(1) [review of finding – high-risk accused – requirements] a finding that an accused is a high-risk accused, it shall notify every victim of the offence that they are entitled to file a statement with the court in accordance with subsection (14) [procedure at disposition hearing – victim impact statements].

Victim impact statement

(14) A victim of the offence may prepare and file with the court or Review Board a written statement describing the physical or emotional harm, property damage or economic loss suffered by the victim as the result of the commission of the offence and the impact of the offence on the victim. Form 48.2 [forms] in Part XXVIII [Pt. XXVIII – Miscellaneous (ss. 841 to 849)], or a form approved by the lieutenant governor in council of the province in which the court or Review Board is exercising its jurisdiction, must be used for this purpose.
[omitted (15), (15.1), (15.2), (15.3) and (16)]
1991, c. 43, s. 4; 1997, c. 18, s. 84; 1999, c. 25, s. 11(Preamble); 2005, c. 22, ss. 16, 42(F); 2014, c. 6, s. 7; 2015, c. 13, s. 22.
[annotation(s) added]

CCC (CanLII), (DOJ)


Note up: 672.5(13.3) and (14)

  1. R v Lepage, 2006 CanLII 37775 (ON CA), 214 CCC (3d) 105, per Juriansz JA (3:0)