Bill C-10
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C-10
First Session, Thirty-eighth Parliament,
53 Elizabeth II, 2004
HOUSE OF COMMONS OF CANADA
BILL C-10
An Act to amend the Criminal Code (mental disorder) and to make consequential amendments to other Acts
first reading, October 8, 2004
THE MINISTER OF JUSTICE
90221
SUMMARY
This enactment amends Part XX.1 of the Criminal Code governing persons found unfit to stand trial or not criminally responsible on account of mental disorder. The amendments, among other things, include
(a) repealing unproclaimed provisions related to capping, dangerous mentally disordered accused and hospital orders;
(b) expanding the authority of Review Boards by enabling them to order an assessment of the accused, adjourn hearings and protect the identity of victims and witnesses;
(c) permitting the oral presentation of victim impact statements at disposition hearings and adjournments allowing the victim to prepare the statement;
(d) permitting Review Boards to extend the time for holding a review hearing to a maximum of 24 months in certain circumstances;
(e) permitting the court to hold an inquiry and order a judicial stay of proceedings for an accused found unfit to stand trial, if the accused is not likely to ever be fit to stand trial and does not pose a significant risk to the safety of the public and a stay is in the interests of the proper administration of justice;
(f) specifying that the transfer provisions require the consent of the appropriate Attorneys General in all cases and enabling transfers of an accused who is not in custody; and
(g) allowing peace officers arresting an accused who is in contravention of an assessment order or a disposition to release, detain, compel the appearance of or deliver the accused to a place specified in the order.
This enactment also makes consequential amendments to other Acts, including the National Defence Act.
Also available on the Parliament of Canada Web Site at the following address:
http://www.parl.gc.ca
http://www.parl.gc.ca
1st Session, 38th Parliament,
53 Elizabeth II, 2004
house of commons of canada
BILL C-10
An Act to amend the Criminal Code (mental disorder) and to make consequential amendments to other Acts
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
R.S., c. C-46
CRIMINAL CODE
1991, c. 43, s. 4
1. (1) Section 672.1 of the Criminal Code is renumbered as subsection 672.1(1).
1991, c. 43, s. 4
(2) The definition “assessment” in subsection 672.1(1) of the Act is replaced by the following:
“assessment”
« évaluation »
« évaluation »
“assessment” means an assessment by a medical practitioner of the mental condition of the accused under an assessment order made under section 672.11 or 672.121, and any incidental observation or examination of the accused;
(3) Section 672.1 of the Act is amended by adding the following after subsection (1):
Reference
(2) For the purposes of subsections 672.5(3) and (5), paragraph 672.86(1)(b) and subsections 672.86(2) and (2.1), 672.88(2) and 672.89(2), in respect of a territory or proceedings commenced at the instance of the Government of Canada and conducted by or on behalf of that Government, a reference to the Attorney General of a province shall be read as a reference to the Attorney General of Canada.
1991, c. 43, s. 4; 1995, c. 22, s. 10 (Sch. I, s. 24)
2. Paragraph 672.11(e) of the Act is replaced by the following:
(e) whether an order should be made under section 672.851 for a stay of proceedings, where a verdict of unfit to stand trial has been rendered against the accused.
3. The Act is amended by adding the following after section 672.12:
Review Board may order assessment
672.121 The Review Board that has jurisdiction over an accused found not criminally responsible on account of mental disorder or unfit to stand trial may order an assessment of the mental condition of the accused of its own motion or on application of the prosecutor or the accused, if it has reasonable grounds to believe that such evidence is necessary to
(a) make a recommendation to the court under subsection 672.851(1); or
(b) make a disposition under section 672.54 in one of the following circumstances:
(i) no assessment report on the mental condition of the accused is available,
(ii) no assessment of the mental condition of the accused has been conducted in the last twelve months, or
(iii) the accused has been transferred from another province under section 672.86.
1991, c. 43, s. 4
4. Subsection 672.13(2) of the Act is replaced by the following:
Form
(2) An assessment order may be in Form 48 or 48.1.
1991, c. 43, s. 4
5. Subsection 672.14(3) of the Act is replaced by the following:
Exception for compelling circumstances
(3) Despite subsections (1) and (2), a court or Review Board may make an assessment order that remains in force for sixty days if the court or Review Board is satisfied that compelling circumstances exist that warrant it.
1991, c. 43, s. 4
6. Subsection 672.15(1) of the Act is replaced by the following:
Extension
672.15 (1) Subject to subsection (2), a court or Review Board may extend an assessment order, of its own motion or on the application of the accused or the prosecutor made during or at the end of the period during which the order is in force, for any further period that is required, in its opinion, to complete the assessment of the accused.
1991, c. 43, s. 4
7. (1) The portion of subsection 672.16(1) of the Act before paragraph (a) is replaced by the following:
Presumption against custody
672.16 (1) Subject to subsection (3), an accused shall not be detained in custody under an assessment order of a court unless
1991, c. 43, s. 4
(2) Subsection 672.16(2) of the Act is replaced by the following:
Presumption against custody — Review Board
(1.1) If the Review Board makes an order for an assessment of an accused under section 672.121, the accused shall not be detained in custody under the order unless
(a) the accused is currently subject to a disposition made under paragraph 672.54(c);
(b) the Review Board is satisfied on the evidence that custody is necessary to assess the accused, or that on the evidence of a medical practitioner custody is desirable to assess the accused and the accused consents to custody; or
(c) custody of the accused is required in respect of any other matter or by virtue of any other provision of this Act.
Residency as a condition of disposition
(1.2) Subject to paragraphs (1.1)(b) and (c), if the accused is subject to a disposition made under paragraph 672.54(b) that requires the accused to reside at a specified place, an assessment ordered under section 672.121 shall require the accused to reside at the same place.
Report of medical practitioner
(2) For the purposes of paragraphs (1)(a) and (1.1)(b), if the prosecutor and the accused agree, the evidence of a medical practitioner may be received in the form of a report in writing.
1991, c. 43, s. 4
(3) Subsection 672.16(3) of the English version of the Act is replaced by the following:
Presumption of custody in certain circumstances
(3) An assessment order made in respect of an accused who is detained under subsection 515(6) or 522(2) shall order that the accused be detained in custody under the same circumstances referred to in that subsection, unless the accused shows that custody is not justified under the terms of that subsection.
1991, c. 43, s. 4
8. Section 672.17 of the Act is replaced by the following:
Assessment order takes precedence over bail hearing
672.17 During the period that an assessment order made by a court in respect of an accused charged with an offence is in force, no order for the interim release or detention of the accused may be made by virtue of Part XVI or section 679 in respect of that offence or an included offence.
1991, c. 43, s. 4
9. Section 672.18 of the French version of the Act is replaced by the following:
Demande de modification
672.18 Lorsque la nécessité lui en est démontrée par le poursuivant ou l’accusé, le tribunal peut, pendant que l’ordonnance d’évaluation rendue par un tribunal est en cours de validité, modifier les conditions de celle-ci qui portent sur la mise en liberté provisoire de l’accusé ou sa détention, de la façon que le tribunal juge indiquée dans les circonstances.
1997, c. 18, s. 81
10. Section 672.191 of the Act is replaced by the following:
When assessment completed
672.191 An accused in respect of whom an assessment order is made shall appear before the court or Review Board that made the order as soon as practicable after the assessment is completed and not later than the last day of the period that the order is to be in force.
1991, c. 43, s. 4
11. (1) Subsection 672.2(2) of the Act is replaced by the following:
Assessment report to be filed
(2) An assessment report shall be filed with the court or Review Board that ordered it, within the period fixed by the court or Review Board, as the case may be.
1991, c. 43, s. 4
(2) Subsection 672.2(4) of the Act is replaced by the following:
Copies of reports to accused and prosecutor
(4) Subject to subsection 672.51(3), copies of any report filed with a court or Review Board under subsection (2) shall be provided without delay to the prosecutor, the accused and any counsel representing the accused.
1991, c. 43, s. 4
12. Paragraph 672.21(3)(c) of the Act is repealed.
13. Section 672.33 of the Act is amended by adding the following after subsection (1):
Extension of time for holding inquiry
(1.1) Despite subsection (1), the court may extend the period for holding an inquiry where it is satisfied on the basis of an application by the prosecutor or the accused that the extension is necessary for the proper administration of justice.
14. Section 672.45 of the Act is amended by adding the following after subsection (1):
Transmittal of transcript to Review Board
(1.1) If the court does not hold a hearing under subsection (1), it shall send without delay, following the verdict, any transcript of the court proceedings in respect of the accused, any other document or information related to the proceedings in its possession, and all exhibits filed with it or copies of those exhibits, to the Review Board that has jurisdiction in respect of the matter.
1991, c. 43, s. 4
15. Subsection 672.47(3) of the Act is replaced by the following:
Disposition made by court
(3) Where a court makes a disposition under section 672.54 other than an absolute discharge in respect of an accused, the Review Board shall, not later than ninety days after the disposition was made, hold a hearing and make a disposition in respect of the accused.
1991, c. 43, s. 4
16. (1) The portion of subsection 672.5(8) of the Act before paragraph (a) is replaced by the following:
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
(2) Section 672.5 of the Act is amended by adding the following after subsection (13):
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.
1999, c. 25, s. 11
(3) Subsection 672.5(16) of the Act is replaced by the following:
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), 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 or 672.47, 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).
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 or 672.47 to permit the victim to prepare a statement referred to in subsection (14) if the court or Review Board is satisfied that the adjournment would not interfere with the proper administration of justice.
Definition of “victim”
(16) In subsections (14) and (15.1) to (15.3), “victim” has the same meaning as in subsection 722(4).
17. The Act is amended by adding the following after section 672.5:
Order restricting publication — victims of sexual offences
672.501 (1) Where a Review Board holds a hearing referred to in section 672.5 in respect of an accused who has been declared not criminally responsible on account of mental disorder or unfit to stand trial for an offence referred to in subsection 486(3), the Review Board shall make an order directing that any information that could identify a victim, or a witness who is under the age of eighteen years, shall not be published in any document or broadcast or transmitted in any way.
Order restricting publication — child pornography
(2) Where a Review Board holds a hearing referred to in section 672.5 in respect of an accused who has been declared not criminally responsible on account of mental disorder or unfit to stand trial for an offence referred to in section 163.1, a Review Board shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of section 163.1, shall not be published in any document or broadcast or transmitted in any way.
Order restricting publication — other offences
(3) Where a Review Board holds a hearing referred to in section 672.5 in respect of an accused who has been declared not criminally responsible on account of mental disorder or unfit to stand trial for an offence other than the offences referred to in subsection (1) or (2), on application of the prosecutor, a victim or a witness, the Review Board may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the Review Board is satisfied that the order is necessary for the proper administration of justice.
Order restricting publication
(4) An order made under any of subsections (1) to (3) does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.
Application and notice
(5) An applicant for an order under subsection (3) shall
(a) apply in writing to the Review Board; and
(b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the Review Board specifies.
Grounds
(6) An applicant for an order under subsection (3) shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.
Hearing may be held
(7) The Review Board may hold a hearing to determine whether an order under subsection (3) should be made, and the hearing may be in private.
Factors to be considered
(8) In determining whether to make an order under subsection (3), the Review Board shall consider
(a) the right to a fair and public hearing;
(b) whether there is a real and substantial risk that the victim or witness would suffer significant harm if their identity were disclosed;
(c) whether the victim or witness needs the order for their security or to protect them from intimidation or retaliation;
(d) society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process;
(e) whether effective alternatives are available to protect the identity of the victim or witness;
(f) the salutary and deleterious effects of the proposed order;
(g) the impact of the proposed order on the freedom of expression of those affected by it; and
(h) any other factor that the Review Board considers relevant.
Conditions
(9) An order made under subsection (3) may be subject to any conditions that the Review Board thinks fit.
Publication of application prohibited
(10) Unless the Review Board refuses to make an order under subsection (3), no person shall publish in any document or broadcast or transmit in any way
(a) the contents of an application;
(b) any evidence taken, information given or submissions made at a hearing under subsection (7); or
(c) any other information that could identify the person to whom the application relates as a victim or witness in the proceedings.
Offence
(11) Every person who fails to comply with an order made under any of subsections (1) to (3) is guilty of an offence punishable on summary conviction.
Application of order
(12) For greater certainty, an order referred to in subsection (11) also prohibits, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim or witness whose identity is protected by the order.
1991, c. 43, s. 4
18. The portion of subsection 672.51(11) of the Act before paragraph (a) is replaced by the following:
Prohibition on publication
(11) No person shall publish in any document or broadcast or transmit in any way
1991, c. 43, s. 4
19. Subsection 672.52(2) of the Act is replaced by the following:
Transmittal of transcript to Review Board
(2) If a court holds a disposition hearing under subsection 672.45(1), whether or not it makes a disposition, it shall send without delay to the Review Board that has jurisdiction in respect of the matter a transcript of the hearing, any document or information relating to the hearing in its possession and all exhibits filed with it or copies of those exhibits.
1991, c. 43, s. 4
20. The portion of section 672.54 of the Act before paragraph (a) is replaced by the following:
Dispositions that may be made
672.54 Where a court or Review Board makes a disposition under subsection 672.45(2) or section 672.47 or 672.83, it shall, taking into consideration the need to protect the public from dangerous persons, the mental condition of the accused, the reintegration of the accused into society and the other needs of the accused, make one of the following dispositions that is the least onerous and least restrictive to the accused:
1999, c. 25, s. 12
21. Section 672.541 of the Act is replaced by the following:
Victim impact statement
672.541 When a verdict of not criminally responsible on account of mental disorder has been rendered in respect of an accused, the court or Review Board shall, at a hearing held under section 672.45, 672.47, 672.81 or 672.82, take into consideration any statement filed in accordance with subsection 672.5(14) in determining the appropriate disposition or conditions under section 672.54, to the extent that the statement is relevant to its consideration of the criteria set out in section 672.54.
1991, c. 43, s. 4
22. Subsection 672.55(2) of the Act is repealed.
1991, c. 43, s. 4
23. Section 672.63 of the Act is replaced by the following:
Effective date of disposition
672.63 A disposition shall come into force on the day on which it is made or on any later day that the court or Review Board specifies in it, and shall remain in force until the Review Board holds a hearing to review the disposition and makes another disposition.
24. The heading before section 672.64 and sections 672.64 to 672.66 of the Act, as enacted by section 4 of chapter 43 of the Statutes of Canada, 1991, are repealed.
1991, c. 43, s. 4; 1995, c. 22, s. 10 (Sch. I, s. 25)
25. Subsection 672.67(2) of the Act is replaced by the following:
Custodial disposition by court
(2) Where a court imposes a custodial disposition on an accused who is, or thereby becomes, a dual status offender, the disposition takes precedence over any prior sentence of imprisonment pending any placement decision by the Review Board.
1991, c. 43, s. 4
26. Sections 672.79 and 672.8 of the Act are repealed.
1991, c. 43, s. 4
27. (1) Subsection 672.81(1) of the French version of the Act is replaced by the following:
Révisions
672.81 (1) La commission d’examen qui a rendu une décision à l’égard d’un accusé tient une nouvelle audience au plus tard douze mois après la décision et à l’intérieur de chaque période de douze mois suivante tant que la décision rendue est en vigueur, à l’exception de la décision prononçant une libération inconditionnelle en vertu de l’alinéa 672.54a).
1991, c. 43, s. 4
(2) Subsection 672.81(2) of the Act is replaced by the following:
Extension on consent
(1.1) Despite subsection (1), the Review Board may extend the time for holding a hearing to a maximum of twenty-four months after the making or reviewing of a disposition if the accused is represented by counsel and the accused and the Attorney General consent to the extension.
Extension for serious personal violence offence
(1.2) Despite subsection (1), at the conclusion of a hearing under this section the Review Board may, after making a disposition, extend the time for holding a subsequent hearing under this section to a maximum of twenty-four months if
(a) the accused has been found not criminally responsible for a serious personal injury offence;
(b) the accused is subject to a disposition made under paragraph 672.54(c); and
(c) the Review Board is satisfied on the basis of any relevant information, including disposition information within the meaning of subsection 672.51(1) and an assessment report made under an assessment ordered under paragraph 672.121(a), that the condition of the accused is not likely to improve and that detention remains necessary for the period of the extension.
Definition of “serious personal injury offence”
(1.3) For the purposes of subsection (1.2), “serious personal injury offence” means
(a) an indictable offence involving
(i) the use or attempted use of violence against another person, or
(ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage upon another person; or
(b) an indictable offence referred to in section 151, 152, 153, 153.1, 155, 160, 170, 171, 172, 271, 272 or 273 or an attempt to commit such an offence.
Notice
(1.4) If the Review Board extends the time for holding a hearing under subsection (1.2), it shall provide notice of the extension to the accused and to the person in charge of the hospital where the accused is detained.
Appeal
(1.5) A decision by the Review Board to extend the time for holding a hearing under subsection (1.2) is deemed to be a disposition for the purpose of sections 672.72 to 672.78.
Additional mandatory reviews in custody cases
(2) The Review Board shall hold a hearing to review any disposition made under paragraph 672.54(b) or (c) as soon as practicable after receiving notice that the person in charge of the place where the accused is detained or directed to attend requests the review.
Review in case of increase on restrictions on liberty
(2.1) The Review Board shall hold a hearing to review a decision to significantly increase the restrictions on the liberty of the accused, as soon as practicable after receiving the notice referred to in subsection 672.56(2).
1991, c. 43, s. 4
28. Subsection 672.82(1) of the Act is replaced by the following:
Discretionary review
672.82 (1) A Review Board may hold a hearing to review any of its dispositions at any time, of its own motion or at the request of the accused or any other party.
Review Board to provide notice
(1.1) Where a Review Board holds a hearing under subsection (1) of its own motion, it shall provide notice to the prosecutor, the accused and any other party.
1997, c. 18, s. 90
29. Subsection 672.83(2) of the Act is repealed.
1991, c. 43, s. 4
30. Section 672.84 of the Act is repealed.
31. The Act is amended by adding the following before section 672.85:
Power to Compel Appearance
1991, c. 43, s. 4
32. (1) The portion of section 672.85 of the Act before paragraph (a) is replaced by the following:
Bringing accused before Review Board
672.85 For the purpose of bringing the accused in respect of whom a hearing is to be held before the Review Board, including in circumstances in which the accused did not attend a previous hearing in contravention of a summons or warrant, the chairperson
1991, c. 43, s. 4
(2) Paragraph 672.85(b) of the Act is replaced by the following:
(b) may, if the accused is not in custody, issue a summons or warrant to compel the accused to appear at a place fixed for the hearing as soon as practicable or at a specified time.
33. The Act is amended by adding the following after section 672.85:
Stay of Proceedings
Recommendation by Review Board
672.851 (1) The Review Board may, of its own motion, make a recommendation to the court that has jurisdiction in respect of the offence charged against an accused found unfit to stand trial to hold an inquiry to determine whether a stay of proceedings should be ordered if
(a) the Review Board has held a hearing under section 672.81 or 672.82 in respect of the accused; and
(b) on the basis of any relevant information, including disposition information within the meaning of subsection 672.51(1) and an assessment report made under an assessment ordered under paragraph 672.121(a), the Review Board is of the opinion that
(i) the accused remains unfit to stand trial and is not likely to become fit to stand trial, and
(ii) the accused does not pose a significant threat to the safety of the public.
Notice
(2) If the Review Board makes a recommendation to the court to hold an inquiry, the Review Board shall provide notice to the accused, the prosecutor and any party who, in the opinion of the Review Board, has a substantial interest in protecting the interests of the accused.
Inquiry
(3) As soon as practicable after receiving the recommendation referred to in subsection (1), the court may hold an inquiry to determine whether a stay of proceedings should be ordered.
Court may act on own motion
(4) A court may, of its own motion, conduct an inquiry to determine whether a stay of proceedings should be ordered if the court is of the opinion, on the basis of any relevant information, that
(a) the accused remains unfit to stand trial and is not likely to become fit to stand trial; and
(b) the accused does not pose a significant threat to the safety of the public.
Assessment order
(5) If the court holds an inquiry under subsection (3) or (4), it shall order an assessment of the accused.
Application
(6) Section 672.51 applies to an inquiry of the court under this section.
Stay
(7) The court may, on completion of an inquiry under this section, order a stay of proceedings if it is satisfied that the accused remains unfit to stand trial, is not likely to become fit to stand trial and does not pose a significant threat to the safety of the public, and that a stay is in the interests of the proper administration of justice.
Proper administration of justice
(8) In order to determine whether a stay of proceedings is in the interests of the proper administration of justice, the court shall consider any submissions of the prosecutor, the accused and all other parties and the following factors:
(a) the nature and seriousness of the alleged offence;
(b) the salutary and deleterious effects of the order for a stay of proceedings, including any effect on public confidence in the administration of justice;
(c) the time that has elapsed since the commission of the alleged offence and whether an inquiry has been held under section 672.33 to decide whether sufficient evidence can be adduced to put the accused on trial; and
(d) any other factor that the court considers relevant.
Effect of stay
(9) If a stay of proceedings is ordered by the court, any disposition made in respect of the accused ceases to have effect. If a stay of proceedings is not ordered, the finding of unfit to stand trial and any disposition made in respect of the accused remain in force, until the Review Board holds a disposition hearing and makes a disposition in respect of the accused under section 672.83.
Appeal
672.852 (1) The Court of Appeal may allow an appeal against an order made under subsection 672.851(7) for a stay of proceedings, if the Court of Appeal is of the opinion that the order is unreasonable or cannot be supported by the evidence.
Effect
(2) If the Court of Appeal allows the appeal, it may set aside the order for a stay of proceedings and restore the finding that the accused is unfit to stand trial and the disposition made in respect of the accused.
1991, c. 43, s. 4
34. (1) Paragraph 672.86(1)(b) of the Act is replaced by the following:
(b) the Attorney General of the province to which the accused is being transferred, or an officer authorized by that Attorney General, and the Attorney General of the province from which the accused is being transferred, or an officer authorized by that Attorney General, give their consent.
1991, c. 43, s. 4
(2) Subsection 672.86(3) of the Act is replaced by the following:
Transfer if accused not in custody
(2.1) An accused who is not detained in custody may be transferred to any other place in Canada where
(a) the Review Board of the province from which the accused is being transferred recommends a transfer for the purpose of the reintegration of the accused into society or the recovery or treatment of the accused; and
(b) the Attorney General of the province to which the accused is being transferred, or an officer authorized by that Attorney General, and the Attorney General of the province from which the accused is being transferred, or an officer authorized by that Attorney General, give their consent.
Order
(3) Where an accused is being transferred in accordance with subsection (2.1), the Review Board of the province from which the accused is being transferred shall, by order,
(a) direct that the accused be taken into custody and transferred pursuant to a warrant under subsection (2); or
(b) direct that the accused attend at a specified place in Canada, subject to any conditions that the Review Board of the province to or from which the accused is being transferred considers appropriate.
1997, c. 18, s. 91
35. Section 672.9 of the French version of the Act is replaced by the following:
Exécution en tout lieu au Canada
672.9 Le mandat délivré à l’égard d’un accusé visé par une décision ou une ordonnance d’évaluation ou tout acte de procédure qui se rattache à celle-ci peut être exécuté ou signifié en tout lieu au Canada à l’extérieur de la province où la décision ou l’ordonnance a été rendue comme s’il avait été délivré dans cette province.
1991, c. 43, s. 4
36. Sections 672.91 to 672.94 of the Act are replaced by the following:
Arrest without warrant for contravention of disposition
672.91 A peace officer may arrest an accused without a warrant at any place in Canada if the peace officer has reasonable grounds to believe that the accused has contravened or wilfully failed to comply with the assessment order or disposition or any condition of it, or is about to do so.
Release or delivery of accused
672.92 (1) Subject to subsection (3), if a peace officer arrests an accused under section 672.91 who is subject to a disposition made under paragraph 672.54(b) or an assessment order, the peace officer, as soon as practicable, may release the accused from custody and issue a summons or appearance notice compelling the accused’s appearance.
Notice
(2) If a peace officer releases an accused under subsection (1), the peace officer shall cause notice of the summons or appearance notice to be given to the Review Board of the province in which the disposition or order was made.
No release
(3) A peace officer shall not release an accused under subsection (1) if the peace officer believes, on reasonable grounds,
(a) that it is necessary in the public interest that the accused be detained in custody having regard to all the circumstances, including the need to
(i) establish the identity of the accused,
(ii) establish the terms and conditions of a disposition made under section 672.54 or of an assessment order, or
(iii) prevent the commission of an offence;
(b) that the accused is subject to a disposition or an assessment order of a court, or Review Board, of another province; or
(c) that, if the accused is released from custody, the accused will fail to attend, as required, before the Review Board.
Delivery to place of custody
(4) If a peace officer arrests an accused under section 672.91 who is subject to a disposition made under paragraph 672.54(b) or (c) or an assessment order, the peace officer, as soon as practicable, may deliver the accused to the place specified in the disposition or assessment order.
Accused to be brought before justice
(5) If a peace officer does not release or deliver the accused to the place specified in the disposition or assessment order, the accused shall be taken before a justice having jurisdiction in the territorial division in which the accused is arrested, without unreasonable delay and in any event within twenty-four hours after the arrest.
Justice not available
(6) If a justice described in subsection (5) is not available within twenty-four hours after the arrest, the accused shall be taken before a justice as soon as practicable.
Where justice to release accused
672.93 (1) A justice shall release an accused who is brought before the justice under section 672.92 unless the justice is satisfied that there are reasonable grounds to believe that the accused has contravened or failed to comply with a disposition or an assessment order.
Order of justice pending decision of Review Board
(2) If the justice is satisfied that there are reasonable grounds to believe that the accused has contravened or failed to comply with a disposition or an assessment order, the justice, pending a hearing of the Review Board of the province in which the disposition was made or a hearing of a court or Review Board with respect to the assessment order, may make an order that is appropriate in the circumstances in relation to the accused, including an order that the accused be returned to a place that is specified in the disposition or assessment order. If the justice makes an order under this subsection, notice shall be given to that court or Review Board.
Powers of Review Board
672.94 Where a Review Board receives a notice given under subsection 672.92(2) or 672.93(2), it may exercise the powers and shall perform the duties mentioned in sections 672.5 and 672.81 to 672.83 as if the Review Board were reviewing a disposition.
1995, c. 39, s. 154; 1996, c. 19, s. 73; 1999, c. 33, s. 346; 2001, c. 41, s. 32
37. The schedule to Part XX.1 of the Act, as enacted by section 4 of chapter 43 of the Statutes of Canada, 1991, is repealed.
2002, c. 13, s. 63
38. Paragraph (b) of the definition “sentence” in section 673 of the Act is replaced by the following:
(b) an order made under subsection 109(1) or 110(1), section 161, subsection 164.2(1), 194(1) or 259(1) or (2), section 261 or 462.37, subsection 491.1(2), 730(1) or 737(3) or (5) or section 738, 739, 742.1, 742.3, 743.6, 745.4 or 745.5,
39. The heading before section 747 and sections 747 to 747.8 of the Act, as enacted by section 6 of chapter 22 of the Statutes of Canada, 1995, are repealed.
1991, c. 43, s. 8; 1995, c. 22, s. 10 (Sch. I, s. 36)
40. Form 48 in Part XXVIII of the Act is replaced by the following:
FORM 48
(Section 672.13)
ASSESSMENT ORDER OF THE COURT
Canada,
Province of
(territorial division)
Whereas I have reasonable grounds to believe that evidence of the mental condition of (name of accused), who has been charged with ...., may be necessary to determine *
[ ] whether the accused is unfit to stand trial
[ ] whether the accused suffered from a mental disorder so as to exempt the accused from criminal responsibility by virtue of subsection 16(1) of the Criminal Code at the time of the act or omission charged against the accused
[ ] whether the balance of the mind of the accused was disturbed at the time of commission of the alleged offence, if the accused is a female person charged with an offence arising out of the death of her newly-born child
[ ] if a verdict of unfit to stand trial or a verdict of not criminally responsible on account of mental disorder has been rendered in respect of the accused, the appropriate disposition to be made in respect of the accused pursuant to section 672.54 or 672.58 of the Criminal Code
[ ] if a verdict of unfit to stand trial has been rendered in respect of the accused, whether the court should order a stay of proceedings under section 672.851 of the Criminal Code
I hereby order an assessment of the mental condition of (name of accused) to be conducted by/at (name of person or service by whom or place where assessment is to be made) for a period of .................... days.
This order is to be in force for a total of ............... days, including travelling time, during which time the accused is to remain *
[ ] in custody at (place where accused is to be detained)
[ ] out of custody, on the following conditions:
(set out conditions, if applicable)
* Check applicable option.
Dated this ............... day of ............... A.D. ....., at ............... .
FORM 48.1
(Section 672.13)
ASSESSMENT ORDER OF THE REVIEW BOARD
Canada,
Province of
(territorial division)
Whereas I have reasonable grounds to believe that evidence of the mental condition of (name of accused), who has been charged with ...., may be necessary to *
[ ] if a verdict of unfit to stand trial or a verdict of not criminally responsible on account of mental disorder has been rendered in respect of the accused, make a disposition under section 672.54 of the Criminal Code
[ ] if a verdict of unfit to stand trial has been rendered in respect of the accused, determine whether the Review Board should make a recommendation to the court that has jurisdiction in respect of the offence charged against the accused to hold an inquiry to determine whether a stay of proceedings should be ordered in accordance with section 672.851 of the Criminal Code
I hereby order an assessment of the mental condition of (name of accused) to be conducted by/at (name of person or service by whom or place where assessment is to be made) for a period of .................... days.
This order is to be in force for a total of ............... days, including travelling time, during which time the accused is to remain *
[ ] in custody at (place where accused is to be detained)
[ ] out of custody, on the following conditions:
(set out conditions, if applicable)
* Check applicable option.
Dated this ............... day of ............... A.D. ....., at ............... .
1991, c. 43, s. 8; 1995, c. 22, s. 10 (Sch. I, s. 37)
41. Form 51 in Part XXVIII of the Act is repealed.
Replacement of “audition” with “audience”
42. The French version of the Act is amended by replacing the words “audition” and “auditions” with the words “audience” and “audiences”, respectively, wherever they occur in the following provisions:
(a) section 672.33;
(b) section 672.43;
(c) the heading before section 672.45 and subsections 672.45(1) and (2);
(d) subsection 672.46(1);
(e) subsections 672.47(1) and (2);
(f) section 672.48;
(g) subsections 672.5(1) to (3), (5), (6), (9), (10), (12) and (13);
(h) subsections 672.51(6), (8) and (11);
(i) subsection 672.52(1);
(j) subsections 672.69(2) and (3);
(k) paragraph 672.74(2)(c);
(l) subsection 672.81(3);
(m) subsection 672.83(1); and
(n) paragraph 672.85(a).
CONSEQUENTIAL AMENDMENTS
1991, c. 43
An Act to amend the Criminal Code (mental disorder) and to amend the National Defence Act and the Young Offenders Act in consequence thereof
43. (1) Subsection 10(1) of An Act to amend the Criminal Code (mental disorder) and to amend the National Defence Act and the Young Offenders Act in consequence thereof, chapter 43 of the Statutes of Canada, 1991, is replaced by the following:
Lieutenant Governor warrants or orders remain in force
10. (1) Any order for detention of an accused or accused person made under section 614, 615 or 617 of the Criminal Code or section 200 or 201 of the National Defence Act, as those sections read immediately before the coming into force of section 3 or 18 of this Act, shall continue in force until an order is made by a court or Review Board under section 672.54 of the Criminal Code.
(2) Subsection 10(3) of the Act is amended by adding the word “and” at the end of paragraph (a) and by repealing paragraphs (c) and (d).
(3) Subsections 10(4) to (8) of the Act are repealed.
1995, c. 22
An Act to amend the Criminal Code (sentencing) and other Acts in consequence thereof
44. Subsection 7(2) of An Act to amend the Criminal Code (sentencing) and other Acts in consequence thereof, chapter 22 of the Statutes of Canada, 1995, is repealed.
1999, c. 5
An Act to amend the Criminal Code, the Controlled Drugs and Substances Act and the Corrections and Conditional Release Act
45. Section 51 of An Act to amend the Criminal Code, the Controlled Drugs and Substances Act and the Corrections and Conditional Release Act, chapter 5 of the Statutes of Canada, 1999, is replaced by the following:
1995, c. 22
51. On the later of the day on which subsection 5(2) of An Act to amend the Criminal Code (sentencing) and other Acts in consequence thereof, chapter 22 of the Statutes of Canada, 1995, comes into force and the day on which section 25 of this Act comes into force, paragraph (b) of the definition “sentence” in section 673 of the Criminal Code is replaced by the following:
(b) an order made under subsection 100(1) or (2), section 161, subsection 194(1) or 259(1) or (2), section 261 or 462.37, subsection 491.1(2) or 730(1) or section 737, 738, 739, 742.1, 742.3, 743.6, 745.4 or 745.5,
1999, c. 25
An Act to amend the Criminal Code (victims of crime) and another Act in consequence
46. Subsection 29(2) of An Act to amend the Criminal Code (victims of crime) and another Act in consequence, chapter 25 of the Statutes of Canada, 1999, is repealed.
R.S., c. N-5
National Defence Act
47. Section 149.1 of the National Defence Act and the heading before it, as enacted by section 13 of chapter 43 of the Statutes of Canada, 1991, are repealed.
1991, c. 43, s. 18
48. Subsection 202.12(2) of the Act is replaced by the following:
Extension of time for holding inquiry
(1.1) Despite paragraph (1)(a), the Chief Military Judge may extend the period for holding an inquiry if the Chief Military Judge is satisfied on the basis of an application by the Director of Military Prosecutions or the accused person that the extension is necessary for the proper administration of justice.
Where prima facie case not made
(2) If, on the completion of an inquiry held pursuant to this section, the court martial is satisfied that sufficient admissible evidence cannot be adduced to put the accused person on trial, the court martial shall find the accused person not guilty of the charge.
49. The Act is amended by adding the following after section 202.12:
Recommendation of Review Board
202.121 (1) The Review Board may, of its own motion, make a recommendation to the Chief Military Judge to cause a court martial to be convened for holding an inquiry to determine whether a stay of proceedings should be ordered in respect of an accused person found unfit to stand trial if
(a) the Review Board has held a hearing under section 672.81 or 672.82 of the Criminal Code in respect of the accused person; and
(b) on the basis of any relevant information, including disposition information within the meaning of the regulations and an assessment report made under an assessment ordered by the Review Board under paragraph 672.121(a) of the Criminal Code, the Review Board is of the opinion that
(i) the accused person remains unfit to stand trial and is not likely to become fit to stand trial, and
(ii) the accused person does not pose a significant threat to the safety of the public.
Notice
(2) If the Review Board makes a recommendation referred to in subsection (1), the Review Board shall provide notice to the accused person, the Director of Military Prosecutions, the Chief Military Judge and any other party who, in the opinion of the Review Board, has a substantial interest in protecting the interests of the accused person.
Obligation of court martial
(3) As soon as practicable after receiving the notice referred to in subsection (2), the Chief Military Judge shall cause the Court Martial Administrator to convene a Standing Court Martial, if the accused person is an officer or a non-commissioned member, or a Special General Court Martial in any other case, for the purpose of determining whether an inquiry should be held to determine whether a stay of proceedings should be ordered and to hold, as soon as practicable, such an inquiry if the court martial determines that it is appropriate.
Inquiry may be conducted
(4) Subject to the regulations, a court martial having jurisdiction over an accused person may, of its own motion, conduct an inquiry to determine whether a stay of proceedings should be ordered if the court martial is of the opinion, on the basis of any relevant information, that
(a) the accused person remains unfit to stand trial and is not likely to become fit to stand trial; and
(b) the accused person does not pose a significant threat to the safety of the public.
Power to order an assessment
(5) Subject to the regulations, if a court martial has reasonable grounds to believe that evidence of the mental condition of an accused person is necessary for the purpose of determining whether a stay of proceedings should be ordered, the court martial may make an order for an assessment of the accused person.
Assessment order
(6) If the court martial holds an inquiry under subsection (3) or (4), it shall order an assessment of the accused person.
Stay
(7) The court martial may, on completion of an inquiry under this section, order a stay of proceedings if it is satisfied that the accused person remains unfit to stand trial, is not likely to become fit to stand trial and does not pose a significant threat to the safety of the public, and that a stay is in the interests of the proper administration of justice.
Proper administration of justice
(8) In order to determine whether a stay of proceedings is in the interests of the proper administration of justice, the court martial shall consider any submissions of the prosecutor, the accused person and all other parties and the following factors:
(a) the nature and seriousness of the alleged offence;
(b) the salutary and deleterious effects of the order for a stay of proceedings, including the effect on public confidence in the administration of justice;
(c) the time that has elapsed since the commission of the alleged offence and whether an inquiry has been held under section 202.12 to decide whether sufficient evidence can be adduced to put the accused person on trial; and
(d) any other factor that the court martial considers relevant.
Effect of stay
(9) If a stay of proceedings is ordered by the court martial, any disposition made in respect of the accused person ceases to have effect. If a stay of proceedings is not ordered, the finding of unfit to stand trial and any disposition made in respect of the accused person remain in force, until the Review Board holds a disposition hearing and makes a disposition in respect of the accused person, in exercising a power under section 672.83 of the Criminal Code.
1991, c. 43, s. 18; 1998, c. 35, s. 52(E)
50. The portion of subsection 202.17(1) of the Act before paragraph (a) is replaced by the following:
Conditions for custody
202.17 (1) An accused person shall not be placed in custody under an assessment order made by a court martial under this Division unless
1998, c. 35, s. 53
51. Subsection 202.18(1) of the Act is replaced by the following:
No custody or release orders during assessment
202.18 (1) During the period that an assessment order made by a court martial under this Division is in force, no order may be made for custody or release from custody of the accused person under any provision of Division 3 or for release from detention or imprisonment under any provision of Division 10 in respect of that offence or an included offence.
1991, c. 43, s. 18
52. Subsection 202.19(1) of the Act is replaced by the following:
Assessment report
202.19 (1) An assessment order made by a court martial under this Division may require the person who makes the assessment to submit in writing an assessment report on the mental condition of the accused person.
1991, c. 43, s. 18
53. Section 202.2 of the Act is replaced by the following:
Effective date of disposition
202.2 A disposition made in respect of an accused person under section 201, 202 or 202.16 shall come into force on the day that it is made or on any later day that the court martial specifies in it, and shall remain in force until the Review Board of the appropriate province holds a hearing and makes a disposition under section 672.83 of the Criminal Code.
1991, c. 43, s. 18
54. Paragraph 202.21(3)(a) of the Act is replaced by the following:
(a) makes a disposition under paragraph 201(1)(b) or 202.16(1)(c) in respect of an accused person, that disposition takes precedence over any prior sentence of imprisonment or detention of the accused person; or
1991, c. 43, s. 18
55. Subsection 202.22(3) of the Act is replaced by the following:
Transmittal of transcript to Review Board
(3) If a court martial holds a hearing under subsection 200(2) or 202.15(1), whether or not it makes a disposition, it shall send without delay to the Review Board of the appropriate province a transcript of the hearing, any document or information relating to the hearing in its possession and all exhibits filed with it or a copy of those exhibits.
Transmittal of transcript to Review Board
(3.1) If the court martial does not hold a hearing referred to in subsection (3), it shall send without delay to the Review Board of the appropriate province, following a verdict of unfit to stand trial or not responsible on account of mental disorder, any transcript of the proceedings in respect of the accused, any document or information relating to the proceedings in its possession and all exhibits filed with it or a copy of those exhibits.
1991, c. 43, s. 18
56. Paragraphs 202.23(3)(a) and (b) of the Act are replaced by the following:
(a) subject to paragraph (c), if a justice having jurisdiction in the territorial division in which the accused person is arrested or a commanding officer is available within a period of twenty-four hours after the arrest, the accused person shall be taken before the justice or commanding officer without unreasonable delay and in any event within that period;
(b) subject to paragraph (c), if a justice having jurisdiction in the territorial division in which the accused person is arrested or a commanding officer is not available within a period of twenty-four hours after the arrest, the accused person shall be taken before a justice or a commanding officer as soon as practicable; and
(c) an accused person in respect of whom a disposition has been made by a court martial under subsection 201(1) or paragraph 202.16(b) or (c) or by a Review Board under paragraph 672.54(b) or (c) of the Criminal Code may, as soon as practicable, be taken to the place specified in the disposition.
1991, c. 43, s. 18
57. Paragraph 202.24(3)(c) of the Act is repealed.
1991, c. 43, s. 18; 1998, c. 35, s. 54
58. Sections 202.25 and 202.26 of the Act are replaced by the following:
Powers of Review Board
202.25 (1) Review Boards and their chairpersons may exercise the powers and shall perform the duties assigned to them under the Criminal Code, with any modifications that the circumstances require and unless the context otherwise requires, in relation to findings made by courts martial of unfit to stand trial or not responsible on account of mental disorder, and in relation to dispositions made under section 201 or 202.16, except for the powers and duties referred to in sections 672.851 and 672.86 to 672.89 of the Criminal Code.
Application of paragraph 672.121(a) of Criminal Code
(2) For the purpose of subsection (1), the reference to subsection 672.851(1) of the Criminal Code in paragraph 672.121(a) of that Act shall be read as a reference to subsection 202.121(1) of this Act.
Application of ss. 672.67 to 672.71 of Criminal Code to findings
202.26 Sections 672.67 to 672.71 of the Criminal Code apply, with any modifications that the circumstances require, to findings made by courts martial of unfit to stand trial or not responsible on account of mental disorder, and a reference in any of those sections to a Review Board is deemed to be a reference to the Review Board of the appropriate province.
59. Section 230.1 of the Act is amended by striking out the word “or” at the end of paragraph (f) and by adding the following after that paragraph:
(f.1) the legality of an order for a stay of proceedings made under subsection 202.121(7); or
60. The Act is amended by adding the following after section 240.3:
Appeal
240.4 (1) The Court Martial Appeal Court may allow an appeal against an order made under subsection 202.121(7) for a stay of proceedings, if the Court Martial Appeal Court is of the opinion that the order is unreasonable or cannot be supported by the evidence.
Effect
(2) If the Court Martial Appeal Court allows the appeal, it may set aside the order for a stay of proceedings and restore the finding that the accused person is unfit to stand trial and the disposition made in respect of the accused person.
Replacement of “audition” with “audience”
61. The French version of the Act is amended by replacing the words “audition” and “auditions” with the words “audience” and “audiences”, respectively, wherever they occur in the following provisions:
(a) subsection 200(2);
(b) subsection 202.12(1);
(c) subsection 202.15(1);
(d) subsection 202.22(1); and
(e) subsection 202.23(4).
1997, c. 9
Nuclear Safety and Control Act
62. Section 124 of the Nuclear Safety and Control Act is repealed.
2002, c. 1
Youth Criminal Justice Act
63. (1) Subsection 141(1) of the Youth Criminal Justice Act is replaced by the following:
Sections of Criminal Code applicable
141. (1) Except to the extent that they are inconsistent with or excluded by this Act, section 16 (defence of mental disorder) and Part XX.1 (mental disorder) of the Criminal Code apply, with any modifications that the circumstances require, in respect of proceedings under this Act in relation to offences alleged to have been committed by young persons.
(2) Subsection 141(5) of the Act is repealed.
(3) Subsections 141(7) to (9) of the Act are repealed.
COORDINATING AMENDMENTS
An Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Criminal Evidence Act
64. (1) Subsections (2) and (3) apply if a bill entitled An Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act (the “other Act”), is introduced in the 1st Session of the 38th Parliament and receives royal assent.
(2) On the later of the coming into force of section 15 of the other Act and section 17 of this Act, subsection 672.501(1) of the Criminal Code is replaced by the following:
Order restricting publication — sexual offences
672.501 (1) Where a Review Board holds a hearing referred to in section 672.5 in respect of an accused who has been declared not criminally responsible on account of mental disorder or unfit to stand trial for an offence referred to in subsection 486.4(1), the Review Board shall make an order directing that any information that could identify a victim, or a witness who is under the age of eighteen years, shall not be published in any document or broadcast or transmitted in any way.
(3) If either section 18 of this Act or section 22 of the other Act comes into force before the other, then the other is repealed on that coming into force.
COMING INTO FORCE
Order of Governor in Council
65. The provisions of this Act, other than section 64, and the provisions of any Act as enacted by this Act, come into force on a day or days to be fixed by order of the Governor in Council.
Published under authority of the Speaker of the House of Commons
Available from:
Publishing and Depository Services
Public Works and Government Services Canada
Available from:
Publishing and Depository Services
Public Works and Government Services Canada
Explanatory Notes
Criminal Code
Clause 1: (2) Existing text of the definition:
“assessment” means an assessment by a medical practitioner of the mental condition of the accused pursuant to an assessment order made under section 672.11, and any incidental observation or examination of the accused;
(3) New.
Clause 2: Relevant portion of subsection 672.11:
672.11 A court having jurisdiction over an accused in respect of an offence may order an assessment of the mental condition of the accused, if it has reasonable grounds to believe that such evidence is necessary to determine
...
(e) whether an order should be made under subsection 747.1(1) to detain the accused in a treatment facility, where the accused has been convicted of the offence.
Clause 3: New.
Clause 4: Existing text of subsection 672.13(2):
(2) An assessment order may be in Form 48.
Clause 5: Existing text of subsection 672.14(3):
(3) Notwithstanding subsections (1) and (2), a court may make an assessment order that remains in force for sixty days where the court is satisfied that compelling circumstances exist that warrant it.
Clause 6: Existing text of subsection 672.15(1):
672.15 (1) Subject to subsection (2), a court may extend an assessment order, of its own motion or on the application of the accused or the prosecutor made during or after the period that the order is in force, for any further period that is required, in its opinion, to complete the assessment of the accused.
Clause 7: (1) Relevant portion of subsection 672.16(1):
672.16 (1) Subject to subsection (3), an accused shall not be detained in custody pursuant to an assessment order unless
(2) and (3) Existing text of subsections 672.16(2) and (3):
(2) For the purposes of paragraph (1)(a), where the prosecutor and the accused agree, the evidence of a medical practitioner may be received in the form of a report in writing.
(3) An accused who is charged with an offence described in any of paragraphs 515(6)(a) to (d) in the circumstances described in that paragraph, or an offence described in subsection 522(2), shall be detained in custody pursuant to an assessment order, unless the accused shows that custody is not justified under the terms of that paragraph or subsection.
Clause 8: Existing text of section 672.17:
672.17 During the period that an assessment order of an accused charged with an offence is in force, no order for the interim release or detention of the accused may be made by virtue of Part XVI or section 679 in respect of that offence or an included offence.
Clause 9: Existing text of section 672.18:
672.18 Where at any time while an assessment order made by a court is in force the prosecutor or an accused shows cause, the court may vary the terms of the order respecting the interim release or detention of the accused in such manner as it considers appropriate in the circumstances.
Clause 10: Existing text of section 672.191:
672.191 An accused in respect of whom an assessment order is made shall appear before the court that made the order as soon as is practicable after the assessment is completed and not later than the last day of the period that the order is to be in force.
Clause 11: (1) Existing text of subsection 672.2(2):
(2) An assessment report shall be filed with the court that ordered it, within the period fixed by the court.
(2) Existing text of subsection 672.2(4):
(4) Subject to subsection 672.51(3), copies of any report filed with a court pursuant to subsection (2) shall be provided without delay to the prosecutor, the accused and any counsel representing the accused.
Clause 12: Relevant portion of subsection 672.21(3):
(3) Notwithstanding subsection (2), evidence of a protected statement is admissible for the purpose of
...
(c) finding whether the accused is a dangerous mentally disordered accused under section 672.65;
Clause 13: New.
Clause 14: New.
Clause 15: Existing text of subsection 672.47(3):
(3) Where a court makes a disposition under section 672.54 other than an absolute discharge in respect of an accused, the Review Board shall hold a hearing on a day not later than the day on which the disposition ceases to be in force, and not later than ninety days after the disposition was made, and shall make a disposition in respect of the accused.
Clause 16: (1) Relevant portion of subsection 672.5(8):
(8) The court or Review Board shall, if an accused is not represented by counsel, assign counsel to act for any accused
(2) New.
(3) Existing text of subsection 672.5(16):
(16) In subsection (14), “victim” has the same meaning as in subsection 722(4).
Clause 17: New.
Clause 18: Relevant portion of subsection 672.51(11):
(11) No person shall publish in any newspaper within the meaning of section 297 or broadcast
Clause 19: Existing text of subsection 672.52(2):
(2) Where a court makes a disposition, it shall send without delay a transcript of the disposition hearing, any document or information relating thereto in the possession of the court, and all exhibits filed with the court or copies of those exhibits, to the Review Board that has jurisdiction in respect of the matter.
Clause 20: Relevant portion of section 672.54:
672.54 Where a court or Review Board makes a disposition pursuant to subsection 672.45(2) or section 672.47, it shall, taking into consideration the need to protect the public from dangerous persons, the mental condition of the accused, the reintegration of the accused into society and the other needs of the accused, make one of the following dispositions that is the least onerous and least restrictive to the accused:
Clause 21: Existing text of section 672.541:
672.541 When a verdict of not criminally responsible on account of mental disorder has been rendered in respect of an accused, the court or Review Board shall, at a hearing held under section 672.45 or 672.47, take into consideration any statement filed in accordance with subsection 672.5(14) in determining the appropriate disposition or conditions under section 672.54, to the extent that the statement is relevant to its consideration of the criteria set out in section 672.54.
Clause 22: Existing text of subsection 672.55(2):
(2) No disposition made under paragraph 672.54(c) by a court shall continue in force for more than ninety days after the day that it is made.
Clause 23: Existing text of section 672.63:
672.63 A disposition shall come into force on the day that it is made or on any later day that the court or Review Board specifies in it, and shall remain in force until the date of expiration that the disposition specifies or until the Review Board holds a hearing pursuant to section 672.47 or 672.81.
Clause 24: Existing text of the heading and sections 672.64 to 672.66:
Capping of Dispositions
672.64 (1) In this section, section 672.65, 672.79 and 672.8,
“designated offence” means an offence included in the schedule to this Part, an offence under the National Defence Act referred to in subsection (2), or any conspiracy or attempt to commit, being an accessory after the fact in relation to, or any counselling in relation to, such an offence;
“cap” means the maximum period during which an accused is subject to one or more dispositions in respect of an offence, beginning at the time when the verdict is rendered.
(2) An offence contrary to any of the following sections of the National Defence Act is a designated offence if it is committed in the circumstances described:
(a) section 73 (offences by commanders when in action), if the accused person acted from cowardice;
(b) section 74 (offences by any person in presence of enemy), 75 (offences related to security) or 76 (offences related to prisoners of war), if the accused person acted otherwise than traitorously;
(c) section 77 (offences related to operations), if the accused person committed the offence on active service;
(d) section 107 (wrongful acts in relation to aircraft or aircraft material) or 127 (injurious or destructive handling of dangerous substances), if the accused person acted wilfully;
(e) section 130 (service trial of civil offences), if the civil offence is included in the schedule to this Part; and
(f) section 132 (offences under law applicable outside Canada), if a court martial determines that the offence is substantially similar to an offence included in the schedule to this Part.
(3) Where a verdict of not criminally responsible on account of mental disorder or unfit to stand trial is rendered in respect of an accused, the cap is
(a) life, if the offence is
(i) high treason under subsection 47(1) or first or second degree murder under section 229,
(ii) an offence under section 73 (offences by commanders when in action), section 74 (offences by any person in presence of enemy), section 75 (offences related to security) or section 76 (offences related to prisoners of war) of the National Defence Act, if the accused person acted traitorously, or first or second degree murder punishable under section 130 of that Act,
(iii) any other offence under any Act of Parliament for which a minimum punishment of imprisonment for life is provided by law;
(b) ten years, or the maximum period during which the accused is liable to imprisonment in respect of the offence, whichever is shorter, if the offence is a designated offence that is prosecuted by indictment; or
(c) two years, or the maximum period during which the accused is liable to imprisonment in respect of the offence, whichever is shorter, if the offence is an offence under this Act or any other Act of Parliament, other than an offence referred to in paragraph (a) or (b).
(4) Subject to subsection (5), if an accused is subject to a verdict in relation to two or more offences, even if they arise from the same transaction, the offence with the longest maximum period of imprisonment as a punishment shall be used to determine the cap that applies to the accused in respect of all the offences.
(5) Where a verdict of not criminally responsible on account of mental disorder or unfit to stand trial is rendered in respect of an accused who is subject to a disposition other than an absolute discharge in respect of a previous offence, the court may order that any disposition that it makes in respect of the offence be consecutive to the previous disposition, even if the duration of all the dispositions exceeds the cap for the offences determined pursuant to subsections (3) and (4).
Dangerous Mentally Disordered Accused
672.65 (1) In this section, “serious personal injury offence” means
(a) an offence or attempt to commit an offence mentioned in section 271 (sexual assault), 272 (sexual assault with a weapon, threats to a third party or causing bodily harm) or 273 (aggravated sexual assault); or
(b) any designated offence prosecuted by indictment involving
(i) the use or attempted use of violence against another person, or
(ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person, and for which the accused is liable to imprisonment for ten years or more.
(2) Where a verdict of not criminally responsible on account of mental disorder is rendered in respect of an accused, the prosecutor may, before any disposition is made, apply to the court that rendered the verdict or to a superior court of criminal jurisdiction for a finding that the accused is a dangerous mentally disordered accused.
(3) On an application made under this section, the court may find the accused to be a dangerous mentally disordered accused if it is satisfied that
(a) the offence that resulted in the verdict is a serious personal injury offence described in paragraph (1)(b), and the accused constitutes a threat to the life, safety, physical or mental well-being of other persons on the basis of evidence establishing
(i) a pattern of repetitive behaviour by the accused, of which the offence that resulted in the verdict is a part, that shows a failure to exercise behavioural restraint and a likelihood that the accused will cause death or injury to other persons or inflict severe psychological damage on other persons, through failure in the future to exercise restraint,
(ii) a pattern of persistent aggressive behaviour by the accused, of which the offence that resulted in the verdict is a part, or
(iii) any behaviour by the accused, associated with the offence that resulted in the verdict, that is of such a brutal nature as to compel the conclusion that the behaviour of the accused in future is unlikely to be inhibited by normal standards of behavioural restraint; or
(b) the offence that resulted in the verdict is a serious personal injury offence described in paragraph (1)(a), and the accused, by conduct in any sexual matter including the conduct in the commission of the offence that resulted in the verdict, has shown a failure to control sexual impulses and a likelihood that the accused will cause injury, pain or other harm to other persons through failure in the future to control such impulses.
(4) Where the court finds the accused to be a dangerous mentally disordered accused under this section, it may increase the cap in respect of the offence to a maximum of life.
672.66 (1) Sections 754 to 758 apply, with such modifications as the circumstances require, to an application under section 672.65 as if it were made under Part XXIV and the accused were an offender.
(2) Where a court makes a finding that the accused is a dangerous mentally disordered accused, it shall send without delay to the Review Board that has jurisdiction in respect of the matter a transcript of the hearing of the application, any document or information relating to it in the possession of the court, and all exhibits filed with the court or copies of them.
Clause 25: Existing text of subsection 672.67(2):
(2) Where a court imposes a custodial disposition on an accused who is, or thereby becomes, a dual status offender, the disposition takes precedence over any prior sentence of imprisonment except a hospital order, as defined in section 747, pending any placement decision by the Review Board.
Clause 26: Existing text of sections 672.79 and 672.8:
672.79 (1) Where a court finds an accused to be a dangerous mentally disordered accused and increases the cap applicable to the accused pursuant to section 672.65, the accused may appeal to the court of appeal against the increase in the cap on any ground of law or fact or mixed law and fact.
(2) On an appeal by an accused under subsection (1), the court of appeal may
(a) quash any increase in the cap and impose any other cap that might have been imposed in respect of the offence, or order a new hearing; or
(b) dismiss the appeal.
672.8 (1) The Attorney General may appeal against the dismissal of an application for a finding that the accused is a dangerous mentally disordered accused on any ground of law.
(2) On an appeal by the Attorney General under subsection (1), the court of appeal may
(a) allow the appeal, designate the accused as a dangerous mentally disordered accused, and increase the cap in respect of the offence to a maximum of life, or order a new hearing; or
(b) dismiss the appeal.
(3) The provisions of Part XXI with respect to procedure on appeals apply, with such modifications as the circumstances require, to appeals under this section or section 672.79.
Clause 27: (1) and (2) Existing text of subsections 672.81(1) and (2):
672.81 (1) A Review Board shall hold a hearing not later than twelve months after making a disposition and every twelve months thereafter for as long as the disposition remains in force, to review any disposition that it has made in respect of an accused, other than an absolute discharge under paragraph 672.54(a).
(2) The Review Board shall hold a hearing to review any disposition made under paragraph 672.54(b) or (c) as soon as is practicable after receiving notice that the person in charge of the place if the accused is detained or directed to attend
(a) has increased the restrictions on the liberty of the accused significantly for a period exceeding seven days; or
(b) requests a review of the disposition.
Clause 28: Existing text of subsection 672.82(1):
672.82 (1) A Review Board may hold a hearing to review any of its dispositions at any time, at the request of the accused or any other party.
Clause 29: Existing text of subsection 672.83(2):
(2) Subsection 672.52(3), and sections 672.64 and 672.71 to 672.82 apply to a disposition made under this section, with such modifications as the circumstances require.
Clause 30: Existing text of section 672.84:
672.84 The Review Board shall hold a hearing to review a disposition under section 672.81 or 672.82 in accordance with the procedures described in section 672.5.
Clause 31: New.
Clause 32: (1) and (2) Relevant portion of section 672.85:
672.85 For the purpose of bringing the accused in respect of whom a hearing under section 672.81 is to be held before the Review Board, the chairperson
...
(b) may issue a summons or warrant to compel the accused to appear at the time and place fixed for the hearing, if the accused is not in custody.
Clause 33: New.
Clause 34: (1) Relevant portion of subsection 672.86(1):
672.86 (1) An accused who is detained in custody or directed to attend at a hospital pursuant to a disposition made by a court or Review Board under paragraph 672.54(c) or a court under section 672.58 may be transferred to any other place in Canada if
...
(b) the Attorneys General of the provinces to and from which the accused is to be transferred give their consent.
(2) Existing text of subsection 672.86(3):
(3) Where an accused who is not detained in custody is to be transferred, the Review Board of the province if the accused is directed to attend shall, by order,
(a) direct that the accused be taken into custody and transferred pursuant to a warrant described in subsection (2); or
(b) direct the accused to attend at a specified place in Canada, subject to any conditions that the Review Board considers appropriate.
Clause 35: Existing text of section 672.9:
672.9 Any warrant or process issued in relation to an assessment order or disposition made in respect of an accused may be executed or served in any place in Canada outside the province if the order or disposition was made as if it had been issued in that province.
Clause 36: Existing text of sections 672.91 to 672.94:
672.91 A peace officer may arrest an accused without a warrant at any place in Canada if the peace officer has reasonable grounds to believe that the accused has contravened or wilfully failed to comply with the disposition or any condition of it, or is about to do so.
672.92 (1) An accused who is arrested pursuant to section 672.91 shall be taken before a justice having jurisdiction in the territorial division in which the accused is arrested, without unreasonable delay and in any event within twenty-four hours after the arrest.
(2) If a justice described in subsection (1) is not available within twenty-four hours after the arrest, the accused shall be taken before a justice as soon as is practicable.
672.93 (1) A justice shall release an accused who is brought before the justice pursuant to section 672.92 unless the justice is satisfied that there are reasonable grounds to believe that the accused has contravened or failed to comply with a disposition.
(2) If the justice is satisfied that there are reasonable grounds to believe that the accused has contravened or failed to comply with a disposition, the justice may make an order that is appropriate in the circumstances in relation to the accused, pending a hearing of the Review Board of the province if the disposition was made, and shall cause notice of that order to be given to that Review Board.
672.94 Where a Review Board receives a notice given pursuant to subsection 672.93(2), it may exercise the powers and shall perform the duties mentioned in sections 672.5 and 672.81 to 672.83 as if the Review Board were reviewing a disposition.
Clause 37: Existing text of the schedule to Part XX.1:
SCHEDULE TO PART XX.1
(Subsection 672.64(1))
DESIGNATED OFFENCES
CRIMINAL CODE
1. Section 49 — acts intended to alarm Her Majesty or break public peace
2. Section 50 — assisting alien enemy to leave Canada, or omitting to prevent treason
3. Section 51 — intimidating Parliament or legislature
4. Section 52 — sabotage
5. Section 53 — inciting to mutiny
6. Section 75 — piratical acts
7. Section 76 — hijacking
8. Section 77 — endangering safety of aircraft
9. Section 78 — offensive weapons and explosive substances
10. Section 80 — breach of duty (explosive substances)
11. Section 81 — using explosives
12. Section 82 — possession of explosives without lawful excuse
13. Subsection 85(1) — using firearm in commission of offence
13.1 Subsection 85(2) — using imitation firearm in commission of offence
14. Subsection 86(1) — careless use of firearm, etc.
15. Subsection 87(1) — pointing a firearm
16. Subsection 88(1) — possession of weapon for dangerous purpose
17. Section 151 — sexual interference
18. Section 152 — invitation to sexual touching
19. Section 153 — sexual exploitation
20. Section 155 — incest
21. Section 159 — anal intercourse
22. Subsection 160(2) — compelling commission of bestiality
23. Subsection 160(3) — bestiality in presence of child or inciting child to commit bestiality
24. Section 220 — causing death by criminal negligence
25. Section 221 — causing bodily harm by criminal negligence
26. Section 223 — causing injury to child before or during birth
27. Section 236 — manslaughter
28. Section 238 — killing unborn child in act of birth
29. Section 239 — attempt to commit murder
30. Section 241 — counselling or aiding suicide
31. Section 244 — causing bodily harm with intent
32. Paragraph 245(a) — administering noxious thing with intent to endanger life or cause bodily harm
33. Section 246 — overcoming resistance to commission of offence
34. Section 247 — setting traps likely to cause death or bodily harm
35. Section 248 — interfering with transportation facilities
36. Subsection 249(3) — dangerous operation of motor vehicles, vessels and aircraft causing bodily harm
37. Subsection 249(4) — dangerous operation of motor vehicles, vessels and aircraft causing death
38. Subsection 255(2) — impaired driving causing bodily harm
39. Subsection 255(3) — impaired driving causing death
40. Section 262 — impeding attempt to save life
41. Paragraph 265(1)(a) — assault
42. Section 267 — assault with a weapon or causing bodily harm
43. Section 268 — aggravated assault
44. Section 269 — unlawfully causing bodily harm
45. Subsection 269.1(1) — torture
46. Paragraph 271(1)(a) — sexual assault
47. Section 272 — sexual assault with a weapon, threats to a third party or causing bodily harm
48. Section 273 — aggravated sexual assault
49. Subsection 279(1) — kidnapping
50. Subsection 279(2) — forcible confinement
51. Section 279.1 — hostage taking
52. Section 280 — abduction of person under sixteen
53. Section 281 — abduction of person under fourteen
54. Paragraph 282(a) — abduction in contravention of custody order
55. Paragraph 283(1)(a) — abduction if no custody order
56. Section 344 — robbery
57. Section 345 — stopping mail with intent
58. Section 346 — extortion
59. Section 348 — breaking and entering with intent, committing offence or breaking out
60. Subsection 349(1) — being unlawfully in dwelling-house
61. Subsection 430(2) — mischief that causes actual danger to life
62. Section 431 — attack on premises, etc., of internationally protected person
63. Section 433 — arson (disregard for human life)
64. Section 434 — arson (damage to property)
65. Section 434.1 — arson (own property)
66. Section 435 — arson for fraudulent purpose
ATOMIC ENERGY CONTROL ACT
67. Section 20 — offence and punishment
EMERGENCIES ACT
68. Subparagraph 8(1)(j)(ii) — contravention of public welfare emergency regulation
69. Subparagraph 19(1)(e)(ii) — contravention of public order emergency regulation
70. Subparagraph 30(1)(l)(ii) — contravention of international emergency regulation
71. Paragraph 40(3)(b) — contravention of war emergency regulation
CANADIAN ENVIRONMENTAL PROTECTION ACT
72. Section 274 — damage to environment and death or harm to persons
CONTROLLED DRUGS AND SUBSTANCES ACT
73. Subsections 4(3) and (4) — possession
74. Subsections 5(3) and (4) — trafficking
75. Subsection 6(3) — importing and exporting
76. Subsection 7(2) — production
77. [Repealed, 1996, c. 19, s. 73]
NATIONAL DEFENCE ACT
78. Section 78 — offence of being spy
79. Section 79 — mutiny with violence
80. Section 80 — mutiny without violence
81. Section 81 — offences related to mutiny
82. Section 82 — advocating governmental change by force
83. Section 83 — disobedience of lawful command
84. Section 84 — striking or offering violence to a superior officer
85. Section 88 — desertion
86. Paragraph 98(c) — maiming or injuring self or another person
87. Section 105 — offences in relation to convoys
88. Section 106 — disobedience of captain’s orders — ships
89. Section 110 — disobedience of captain’s orders — aircraft
90. Section 128 — conspiracy
SECURITY OF INFORMATION ACT
91. Subsection 4(1) — wrongful communication, etc., of information
92. Subsection 4(2) — communication of sketch, plan, model, etc.
93. Subsection 4(3) — receiving code word, sketch, etc.
94. Subsection 4(4) — retaining or allowing possession of document, etc.
95. Subsection 5(1) — unauthorized use of uniforms, falsification of reports, forgery, personation and false documents
96. Subsection 5(2) — unlawful dealing with dies, seals, etc.
97. Section 6 — approaching, entering, etc., a prohibited place
98. Section 7 — interference
99. Subsection 13(1) — purported communication
100. Subsection 14(1) — unauthorized communication of special operational information
101. Subsection 16(1) — communicating safeguarded information
102. Subsection 16(2) — communicating safeguarded information
103. Subsection 17(1) — communicating special operational information
104. Subsection 18(1) — breach of trust in respect of safeguarded information
105. Subsection 19(1) — use of trade secret for the benefit of foreign economic entity
106. Subsection 20(1) — threats or violence
107. Subsection 21(1) — harbouring or concealing
108. Subsection 22(1) — preparatory acts
109. Section 23 — conspiracy, attempt, etc.
Clause 38: Relevant portion of the definition:
“sentence” includes
...
(b) an order made under subsection 109(1) or 110(1), section 161, subsection 164.2(1), 194(1) or 259(1) or (2), section 261 or 462.37, subsection 491.1(2), 730(1) or 737(3) or (5) or section 738, 739, 742.1, 742.3, 743.6, 745.4, 745.5 or 747.1,
Clause 39: Existing text of the heading and sections 747 to 747.8:
Hospital Orders
747. In this section and sections 747.1 to 747.8,
“assessment report means” a written report made pursuant to an assessment order made under section 672.11 by a psychiatrist who is entitled under the laws of a province to practise psychiatry or, if a psychiatrist is not practicably available, by a medical practitioner;
“hospital order” means an order by a court under section 747.1 that an offender be detained in a treatment facility;
“medical practitioner” means a person who is entitled to practise medicine by the laws of a province;
“treatment facility” means any hospital or place for treatment of the mental disorder of an offender, or a place within a class of such places, designated by the Governor in Council, the lieutenant governor in council of the province in which the offender is sentenced or a person to whom authority has been delegated in writing for that purpose by the Governor in Council or that lieutenant governor in council.
747.1 (1) A court may order that an offender be detained in a treatment facility as the initial part of a sentence of imprisonment if it finds, at the time of sentencing, that the offender is suffering from a mental disorder in an acute phase and the court is satisfied, on the basis of an assessment report and any other evidence, that immediate treatment of the mental disorder is urgently required to prevent further significant deterioration of the mental or physical health of the offender, or to prevent the offender from causing serious bodily harm to any person.
(2) A hospital order shall be for a single period of treatment not exceeding sixty days, subject to any terms and conditions that the court considers appropriate.
(3) A hospital order may be in Form 51.
(4) A court that makes a hospital order shall issue a warrant for committal of the offender, which may be in Form 8.
747.2 (1) In a hospital order, the court shall specify that the offender be detained in a particular treatment facility recommended by the central administration of any penitentiary, prison or other institution to which the offender has been sentenced to imprisonment, unless the court is satisfied, on the evidence of a medical practitioner, that serious harm to the mental or physical health of the offender would result from travelling to that treatment facility or from the delay occasioned in travelling there.
(2) Where the court does not follow a recommendation referred to in subsection (1), it shall order that the offender be detained in a treatment facility that is reasonably accessible to the place if the accused is detained when the hospital order is made or to the place if the court is located.
747.3 No hospital order may be made unless the offender and the person in charge of the treatment facility if the offender is to be detained consent to the order and its terms and conditions, but nothing in this section shall be construed as making unnecessary the obtaining of any authorization or consent to treatment from any other person that is or may be required otherwise than under this Act.
747.4 No hospital order may be made in respect of an offender
(a) who is convicted of or is serving a sentence imposed in respect of a conviction for an offence for which a minimum punishment of imprisonment for life is prescribed by law;
(b) who has been found to be a dangerous offender pursuant to section 753;
(c) if the term of imprisonment to be served by the offender does not exceed sixty days;
(d) if the term of imprisonment is imposed on the offender in default of payment of a fine or of a victim fine surcharge imposed under subsection 737(1); or
(e) if the sentence of imprisonment imposed on the offender is ordered under paragraph 732(1)(a) to be served intermittently.
747.5 (1) An offender shall be sent or returned to a prison to serve the portion of the offender’s sentence that remains unexpired if
(a) the hospital order expires before the expiration of the sentence; or
(b) the consent to the detention of the offender in the treatment facility pursuant to the hospital order is withdrawn either by the offender or by the person in charge of the treatment facility.
(2) Before the expiration of a hospital order in respect of an offender, the offender may be transferred from the treatment facility specified in the hospital order to another treatment facility if treatment of the offender’s mental disorder is available, if the court authorizes the transfer in writing and the person in charge of the treatment facility consents.
747.6 Each day that an offender is detained under a hospital order shall be treated as a day of service of the term of imprisonment of the offender, and the offender shall be deemed, for all purposes, to be lawfully confined in a prison during that detention.
747.7 Notwithstanding section 12 of the Corrections and Conditional Release Act, an offender in respect of whom a hospital order is made and who is sentenced or committed to a penitentiary may, during the period for which that order is in force, be received in a penitentiary before the expiration of the time limited by law for an appeal and shall be detained in the treatment facility specified in the order during that period.
747.8 Where a court makes a hospital order in respect of an offender, the court shall cause a copy of the order and of the warrant of committal issued pursuant to subsection 747.1 to be sent to the central administration of the penitentiary, prison or other institution if the term of imprisonment imposed on the offender is to be served and to the treatment facility if the offender is to be detained for treatment.
Clause 40: Existing text of Form 48 in Part XXVIII:
FORM 48
(Section 672.13)
ASSESSMENT ORDER
Canada,
Province of
(territorial division)
Whereas I have reasonable grounds to believe that evidence of the mental condition of (name of accused), who has been charged with ...., may be necessary to determine *
[ ] whether the accused is unfit to stand trial
[ ] whether the accused suffered from a mental disorder so as to exempt the accused from criminal responsibility by virtue of subsection 16(1) of the Criminal Code at the time of the act or omission charged against the accused
[ ] whether the accused is a dangerous mentally disordered accused under section 672.65 of the Criminal Code
[ ] whether the balance of the mind of the accused was disturbed at the time of commission of the alleged offence, where the accused is a female person charged with an offence arising out of the death of her newly-born child
[ ] if a verdict of unfit to stand trial or a verdict of not criminally responsible on account of mental disorder has been rendered in respect of the accused, the appropriate disposition to be made in respect of the accused pursuant to section 672.54 or 672.58 of the Criminal Code
[ ] if the accused has been convicted of the offence, whether an order under subsection 747.1(1) of the Criminal Code should be made in respect of the accused
I hereby order an assessment of the mental condition of (name of accused) to be conducted by/at (name of person or service by whom or place where assessment is to be made) for a period of .................... days.
This order is to be in force for a total of ............... days, including travelling time, during which time the accused is to remain *
[ ] in custody at (place where accused is to be detained)
[ ] out of custody, on the following conditions:
(set out conditions, where applicable)
* Check applicable option.
Dated this ............... day of ............... A.D. ....., at ............... .
Clause 41: Existing text of Form 51 in Part XXVIII:
FORM 51
(Subsection 747.1(3))
HOSPITAL ORDER
Canada,
Province of
(territorial division)
Whereas (name of offender), who has been convicted of (offence) and sentenced to a term of imprisonment of (length of term of imprisonment), is suffering from a mental disorder in an acute phase and immediate treatment of the mental disorder is urgently required to prevent significant deterioration of the mental or physical health of the offender or to prevent the offender from causing serious bodily harm to any person;
And whereas (name of offender) and (name of treatment facility) have consented to this order and its terms and conditions;
I hereby order that (name of offender) be detained for treatment at (name of treatment facility) for a period not to exceed (length of period not to exceed sixty days) subject to the following terms and conditions:
(set out terms and conditions, where applicable)
Dated this ................... day of .................... A.D. .................... , at ...................... .
An Act to amend the Criminal Code (mental disorder) and to amend the National Defence Act and the Young Offenders Act in consequence thereof
Clause 43: (1) Existing text of subsection 10(1):
10. (1) Any order for the detention of an accused or accused person made under section 614, 615 or 617 of the Criminal Code or section 200 or 201 of the National Defence Act, as those sections read immediately before the coming into force of section 3 or 18 of this Act, shall continue in force until the coming into force of section 672.64 of the Criminal Code, subject to any order made by a court or Review Board under section 672.54 of the Criminal Code.
(2) Relevant portion of subsection 10(3):
(3) Sections 672.5 to 672.85 of the Criminal Code apply, with such modifications as the circumstances require, to a review under subsection (2) as if
...
(c) there were included in the definition “designated offence” in subsection 672.64(1) of that Act a reference to any offence under any Act of Parliament, as that Act read at the time of the commission of the alleged offence for which the person is in custody, involving violence or a threat of violence to a person or danger to the safety or security of the public, including, without limiting the generality of the foregoing, a reference to the following sections of the Criminal Code, as those sections read immediately before January 4, 1983, namely,
(i) section 144 (rape),
(ii) section 145 (attempt to commit rape),
(iii) section 149 (indecent assault on female),
(iv) section 156 (indecent assault on male),
(v) section 245 (common assault),
(vi) section 246 (assault with intent); and
(d) there were included in the offences mentioned in paragraph 672.64(3)(a) a reference to any of the following offences under any Act of Parliament, as that Act read at the time of the commission of the alleged offence for which the person is in custody, namely,
(i) murder punishable by death or punishable by imprisonment for life, capital murder, non-capital murder and any offence of murder, however it had been described or classified by the provisions of the Criminal Code that were in force at that time, and
(ii) any other offence under any Act of Parliament for which a minimum punishment of imprisonment for life had been prescribed by law.
(3) Existing text of subsections 10(4) to (8):
(4) The Attorney General of Canada shall appoint a Commissioner from among the judges of superior courts of criminal jurisdiction to review and determine, before the coming into force of section 672.64 of the Criminal Code, whether any person detained in custody by virtue of an order of detention described in subsection (1) would have been a dangerous mentally disordered accused under section 672.65 of the Criminal Code, if that section were in force at the time the order of detention was made.
(5) Where an order of detention referred to in subsection (1) was issued against a person found not guilty by reason of insanity of an offence that is a designated offence as defined in subsection 672.64(1) of the Criminal Code or that is included as a designated offence under paragraph (3)(c), the Attorney General of the province where the order was made, or of the province where the person is detained in custody, may apply to the Commissioner for review and determination of whether the person would be a dangerous mentally disordered accused.
(6) Sections 672.65 and 672.66 of the Criminal Code apply to an application made under subsection (5) with such modifications as the circumstances require, and
(a) in addition to the evidence described in paragraph 672.65(3)(a), the Commissioner shall consider any relevant evidence subsequent to the detention of the person in respect of whom the application is made; and
(b) where the Commissioner determines that the person would be a dangerous mentally disordered accused, the Commissioner may make an order that the person be detained in custody for a maximum of life.
(7) An order made by the Commissioner in respect of an application under this section shall have effect on the coming into force of section 672.64 of the Criminal Code and be subject to the rights of appeal described in sections 672.79 and 672.8 as if the order were an order of a court under section 672.65 of that Act.
(8) Where, before the coming into force of section 5 of this Act, a person has committed an offence but a sentence has not been imposed on that person for that offence, that person may be detained in accordance with section 736.11 of the Criminal Code, as enacted by section 6 of this Act.
An Act to amend the Criminal Code (sentencing) and other Acts in consequence thereof
Clause 44: Existing text of subsection 7(2):
(2) On the coming into force of section 747.1 of the Criminal Code, as enacted by section 6 of this Act, paragraph (b) of the definition “sentence” in section 785 of the Criminal Code is replaced by the following:
(b) an order made under subsection 100(2) or 259(1) or (2), section 261, subsection 730(1), section 737, 738, 739 or 742.3 or subsection 747.1(1), and
An Act to amend the Criminal Code, the Controlled Drugs and Substances Act and the Corrections and Conditional Release Act
Clause 45: Existing text of section 51:
51. On the later of the day on which subsection 5(2) of An Act to amend the Criminal Code (sentencing) and other Acts in consequence thereof, chapter 22 of the Statutes of Canada, 1995, comes into force and the day on which section 25 of this Act comes into force, paragraph (b) of the definition “sentence” in section 673 of the Criminal Code is replaced by the following:
(b) an order made under subsection 100(1) or (2), section 161, subsection 194(1) or 259(1) or (2), section 261 or 462.37, subsection 491.1(2) or 730(1), section 737, 738, 739, 742.1, 742.3, 743.6, 745.4 or 745.5 or subsection 747.1(1),
An Act to amend the Criminal Code (victims of crime) and another Act in consequence
Clause 46: Existing text of subsection 29(2):
(2) On the later of the coming into force of this Act and the coming into force of paragraph (b) of the definition “sentence” in section 785 of the Criminal Code, as enacted by subsection 7(2) of An Act to amend the Criminal Code (sentencing) and other Acts in consequence thereof, chapter 22 of the Statutes of Canada, 1995, that paragraph is replaced by the following:
(b) an order made under subsection 110(1) or 259(1) or (2), section 261, subsection 730(1) or 737(3) or (5), section 738, 739 or 742.3 or subsection 747.1(1), and
National Defence Act
Clause 47: Existing text of the heading and section 149.1:
Hospital Orders
149.1 A court martial may order that an offender be detained in a treatment facility as if it were a court making a hospital order under the Criminal Code, and the provisions of the Criminal Code relating to hospital orders and the precedence of hospital orders over other orders apply, with such modifications as the circumstances require.
Clause 48: Existing text of subsection 202.12(2):
(2) Where, on the completion of an inquiry held pursuant to subsection (1) the court martial is satisfied that sufficient admissible evidence cannot be adduced to put the accused person on trial, the court martial shall find the accused person not guilty of the charge.
Clause 49: New.
Clause 50: Relevant portion of subsection 202.17(1):
202.17 (1) An accused person shall not be placed in custody pursuant to an assessment order made under this Division unless
Clause 51: Existing text of subsection 202.18(1):
202.18 (1) During the period that an assessment order made under this Division is in force, no order may be made for custody or release from custody of the accused person under any provision of Division 3 or for release from detention or imprisonment under any provision of Division 10 in respect of that offence or an included offence.
Clause 52: Existing text of subsection 202.19(1):
202.19 (1) An assessment order may require the person who makes the assessment to submit in writing an assessment report on the mental condition of the accused person.
Clause 53: Existing text of section 202.2:
202.2 (1) A disposition made in respect of an accused person under section 201, 202 or 202.16 shall come into force on the day that it is made or on any later day that the court martial specifies in it, and shall remain in force until the date of expiration that the disposition specifies or until the Review Board of the appropriate province holds a hearing as required under section 202.25.
(2) No disposition made under paragraph 201(1)(b) or 202.16(1)(c) by a court martial shall continue in force for more than ninety days after the day that it is made.
Clause 54: Relevant portion of subsection 202.21(3):
(3) Pending a disposition by the Review Board, where a court martial
(a) makes a disposition under paragraph 201(1)(b) or 202.16(1)(c) in respect of an accused person, that disposition takes precedence over any prior sentence of imprisonment or detention of the accused person except a hospital order made under section 149.1, or under section 736.11 of the Criminal Code; or
Clause 55: Existing text of subsection 202.22(3):
(3) Where a court martial makes a disposition, it shall send forthwith a transcript of the hearing held by it pursuant to subsection 200(2) or 202.15(1), any document or information relating thereto in the possession of the court martial, and all exhibits filed with the court or a copy thereof, to the Review Board of the appropriate province.
Clause 56: Existing text of subsection 202.23(3):
(3) An accused person arrested pursuant to subsection (2) shall be dealt with in accordance with the following provisions:
(a) where a justice having jurisdiction in the territorial division in which the accused person is arrested or a commanding officer is available within a period of twenty-four hours after the arrest, the accused person shall be taken before the justice or commanding officer without unreasonable delay and in any event within that period; and
(b) where a justice having jurisdiction in the territorial division in which the accused person is arrested or a commanding officer is not available within a period of twenty-four hours after the arrest, the accused person shall be taken before a justice or a commanding officer as soon as is practicable thereafter.
Clause 57: Relevant portion of subsection 202.24(3):
(3) Notwithstanding subsection (2), evidence of a protected statement is admissible for the purpose of
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(c) finding whether the accused person is a dangerous mentally disordered accused under section 672.65 of the Criminal Code;
Clause 58: Existing text of sections 202.25 and 202.26:
202.25 Review Boards and the chairpersons thereof may exercise the powers and shall perform the duties assigned to them under sections 672.43, 672.47 to 672.57, 672.63 and 672.68 to 672.7 of the Criminal Code in relation to findings made by courts martial of unfit to stand trial or not responsible on account of mental disorder, and in relation to dispositions made under section 201 or 202.16.
202.26 Sections 672.64 to 672.71 and 672.79 and subsections 672.8(1) and (2) of the Criminal Code apply, with such modifications as the circumstances require, to findings made by courts martial under this Act of unfit to stand trial or not responsible on account of mental disorder, and
(a) a reference in any of those sections to a Review Board is deemed to be a reference to the Review Board of the appropriate province;
(b) a reference in subsection 672.64(3) or 672.65(1) of the Criminal Code to a designated offence prosecuted by indictment is deemed to be a reference to a designated offence;
(c) no application under subsection 672.65(2) of the Criminal Code may be made to a superior court of criminal jurisdiction;
(d) a reference in section 754 of the Criminal Code to the Attorney General of the province in which the accused person was tried is deemed to be a reference to the Minister;
(e) the references in subsections 672.8(1) and (2) of the Criminal Code to the Attorney General are deemed to be references to the Minister of National Defence; and
(f) the Court Martial Appeal Court may not order a new hearing under paragraph 672.79(2)(a) or 672.8(2)(a) of the Criminal Code where the finding or dismissal of the application for a finding is that of a General Court Martial or a Disciplinary Court Martial.
Clause 59: Relevant portion of section 230.1:
230.1 The Minister, or counsel instructed by the Minister for that purpose, has, subject to subsection 232(3), the right to appeal to the Court Martial Appeal Court from a court martial in respect of any of the following matters:
Clause 60: New.
Nuclear Safety and Control Act
Clause 62: Existing text of section 124:
124. On the later of the day on which subsection 672.64(1) of the Criminal Code, as enacted by section 4 of An Act to amend the Criminal Code (mental disorder) and to amend the National Defence Act and the Young Offenders Act in consequence thereof, chapter 43 of the Statutes of Canada, 1991, comes into force and the day on which this Act comes into force,
(a) item 67 of the schedule to Part XX.1 of the Criminal Code and the heading before it are repealed; and
(b) the schedule to Part XX.1 of the Criminal Code is amended by adding the following after item 90:
NUCLEAR SAFETY AND CONTROL
90.1 Paragraphs 48(a) and (b) and section 50 — offence
Youth Criminal Justice Act
Clause 63: (1) Existing text of subsection 141(1):
141. (1) Except to the extent that they are inconsistent with or excluded by this Act, section 16 (defence of mental disorder) and Part XX.1 (mental disorder) of the Criminal Code, except sections 672.65 (capping of offences) and 672.66 (hearing application procedures), apply, with any modifications that the circumstances require, in respect of proceedings under this Act in relation to offences alleged to have been committed by young persons.
(2) Existing text of subsection 141(5):
(5) A youth justice court may not make an order under section 672.11 (assessment order) of the Criminal Code in respect of a young person for the purpose of assisting in the determination of a matter mentioned in paragraph (e) of that section.
(3) Existing text of subsections 141(7) to (9):
(7) Subject to subsection (9), for the purpose of applying subsection 672.64(3) (cap for various offences) of the Criminal Code to proceedings under this Act in relation to an offence alleged to have been committed by a young person, the applicable cap shall be the maximum period during which the young person would be subject to a youth sentence by the youth justice court if found guilty of the offence.
(8) If a young person is charged with a presumptive offence or notice has been given under subsection 64(2) (intention to seek adult sentence), and the young person is found unfit to stand trial, the Attorney General may apply to the court to increase the cap that will apply to the young person.
(9) The youth justice court, after giving the Attorney General and the counsel and a parent of the young person in respect of whom subsection (8) applies an opportunity to be heard, shall take into consideration
(a) the seriousness and circumstances of the alleged offence,
(b) the age, maturity, character and background of the young person and any previous criminal record,
(c) the likelihood that the young person will cause significant harm to any person if released on expiry of the cap that applies to the young person under subsection (7), and
(d) the respective caps that would apply to the young person under this Act and under the Criminal Code.
If the court is satisfied that it would make an order under subsection 64(5) (application for adult sentence unopposed) or 70(2) (no application by young person to avoid adult sentence) or paragraph 72(1)(b) (imposition of adult sentence) if the young person were fit to stand trial, it shall apply to the young person the cap that would apply to an adult for the same offence.
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