Ontario Review Board
[ www.orb.on.ca ]
The Ontario Review Board (the "Board") has jurisdiction over individuals who have been found by a court to be either unfit to stand trial or not criminally responsible on account of mental disorder. The Board is an independent tribunal established pursuant to the Criminal Code of Canada which stipulates that each province and territory must establish or designate a Review Board to oversee these individuals. Individuals subject to the jurisdiction of the Ontario Review Board are referred to in the Criminal Code of Canada as "accused".
History
While the rudiments of our present scheme can be traced to the writings of Sir Matthew Hale in the seventeenth century, its modern history commences with the case of Rex v. Hadfield (1800), 27 St.tr.1281.
James Hadfield had fired a shot from his horse at King George III and was subsequently found "not guilty"; he being under the influence of insanity at the time the act was committed. The criminal court of the time had two options: (1) release him into the community because he had been acquitted on the charges of attempt murder and treason, or (2) return him from whence he came (i.e. prison). Lord Kenyon, Chief Justice, recognized that prison was not the place for Mr.Hadfield nor was his return to the community the right choice. During the course of giving his judgment he said the following:
"the 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 station, from the King upon the Throne to the beggar at the gate; people of both sexes and of all ages may, in an unfortunate frantic hour, fall a sacrifice to this man, who is not under the guidance of sound reason; and therefore it is absolutely necessary for the safety of society that he should be properly disposed of, all mercy and humanity being shown to this most unfortunate creature. But for the sake of the community, undoubtedly he must somehow or other be taken care of, with all the attention and all the relief that can be afforded him... for the present we can only remand him to the confinement he came from..."
Hadfield was returned to prison but as a result of the conundrum presented by him the British Parliament passed the Criminal Lunatics Act, 1800, 39 & 40 Geo.III, c.94 (U.K.), which gave the court authority to commit an accused found to be not guilty by reason of insanity to "strict custody, in such place and in such manner as the court shall deem fit, until His Majesty's Pleasure is known..." The Act further gave authority to His Majesty to make an order for the safe custody of such persons during his pleasure. The provisions of that Act were incorporated into the drafts of the British Criminal Code which was never enacted but which was later adopted by Canada as its first Criminal Code of 1892. These provisions remained virtually unchanged in form until the proclamation of Bill C-30 on February 5, 1992. The main part of Bill C-30 formed what is now Part XX.1 of the Criminal Code.
Prior to 1992, and the mandatory creation of Review Boards under s.672.38 of the Criminal Code, provincial and territorial courts had no discretion but to automatically detain in "strict custody" persons found "not guilty by reason of insanity" or unfit to stand trial on what was known as a "Lieutenant Governor's Warrant". From initial detention the accused could then "cascade" down to lesser levels of security - a process known as the "loosening" of the warrant. That regime had sometimes been referred to as the "L.G.W. system".
Within the statutory provisions of the previous scheme the Lieutenant Governor had custody of the mentally disordered accused, however, his decisions did not require the input from an advisory review board. That part of the scheme was optional for each province. In Ontario, a review board had existed for some time prior to the proclamation of Bill C-30. The board was known as the Lieutenant Governor’s Board of Review. That "advisory" board had no authority or jurisdiction to determine what should happen with a person whose position it had to review, but rather it was restricted to reporting to the Lieutenant Governor its findings, opinions and conclusions. Persons who were subject to a Lieutenant Governor's Warrant were kept in strict custody until the Lieutenant Governor's pleasure was known through Warrants issued in his or her name. The system or scheme then envisaged by the Criminal Code was administered differently in different provinces.
In 1991, with the case of R.v.Swain, [1991] 1 S.C.R. 933, the Supreme Court of Canada struck down the scheme then set out in the Criminal Code for dealing with persons found not guilty by reason of insanity in that it violated the accused rights as defined by the Charter of Rights and Freedoms. The court directed the Federal Government to devise a new scheme for the supervision of the mentally disordered accused within 6 months of its decision. That decision resulted in Bill C-30.
Present Bill C-30 Provisions [Part XX.1 of the Criminal Code]
The Bill C-30 amendments modernized some of the language which had been used in the Criminal Code for over 100 years. "Not guilty by reason of insanity" was changed to "not criminally responsible". Automatic "strict custody" was eliminated. Instead, the court is now able to hold a disposition hearing immediately following the verdict and make its own disposition for the accused. The role of the Lieutenant Governor has been eliminated. The "advisory" boards which existed prior to 1992 were converted into adjudicative boards whose responsibilities were expanded to the actual making of the order, now referred to as a "Disposition".
The new provisions of the Criminal Code require that a jury or judge may find the accused committed the act or made the omission that formed the basis of the offence charged but was at the time suffering from mental disorder so as to be exempt from criminal responsibility by virtue of s. 16 of the Criminal Code. The jury or judge ... "shall render a verdict that the accused committed the act or made the omission but is not criminally responsible on account of mental disorder". In light of this provision it would now appear to be technically incorrect to say that such an accused has been "acquitted" of the offence with which he was charged.
The common law pertaining to "unfitness to stand trial" was codified [as set out below] and included in s.2 of the Criminal Code. An accused is presumed to be fit to stand trial until the contrary is proven on a balance of probabilities. Further, an accused is unfit to stand trial where he or she is unable, on account of mental disorder, to understand the nature or object of the proceedings, the possible consequences of the proceedings, or to communicate with counsel.
If the court returning a verdict that an accused is unfit to stand trial or not criminally responsible ("NCR") doesn't hold a disposition hearing, or holds a disposition hearing but makes no disposition, the accused then remains subject to whatever order for custody or judicial interim release was in existence at the time of the verdict. That could mean either the existing or varied bail order or an order requiring custody in jail or in hospital pending a first disposition ("initial disposition") by the provincial review board.