Bill C-54

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C-54

First Session, Forty-first Parliament,

60-61-62 Elizabeth II, 2011-2012-2013

HOUSE OF COMMONS OF CANADA

BILL C-54

An Act to amend the Criminal Code and the National Defence Act (mental disorder)

first reading, February 8, 2013

MINISTER OF JUSTICE

90680

SUMMARY

This enactment amends the mental disorder regime in the Criminal Code and the National Defence Act to specify that the paramount consideration in the decision-making process is the safety of the public and to create a scheme for finding that certain persons who have been found not criminally responsible on account of mental disorder are high-risk accused. It also enhances the involvement of victims in the regime and makes procedural and technical amendments.

Also available on the Parliament of Canada Web Site at the following address:
http://www.parl.gc.ca

1st Session, 41st Parliament,

60-61-62 Elizabeth II, 2011-2012-2013

house of commons of canada

BILL C-54

An Act to amend the Criminal Code and the National Defence Act (mental disorder)

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

SHORT TITLE

Short title

1. This Act may be cited as the Not Criminally Responsible Reform Act.

R.S., c. C-46

CRIMINAL CODE

1991, c. 43, s. 4

2. (1) The definition “disposition” in subsection 672.1(1) of the Criminal Code is replaced by the following:

“disposition”
« décision »

“disposition” means an order made by a court or Review Board under section 672.54, an order made by a court under section 672.58 or a finding made by a court under subsection 672.64(1);

(2) Subsection 672.1(1) of the Act is amended by adding the following in alphabetical order:

“high-risk accused”
« accusé à haut risque »

“high-risk accused” means an accused who is found to be a high-risk accused by a court under subsection 672.64(1);

3. Section 672.11 of the Act is amended by striking out “or” at the end of paragraph (d) and by adding the following after paragraph (d):

(d.1) whether a finding that the accused is a high-risk accused should be revoked under subsection 672.84(3); or

4. Section 672.121 of the Act is amended by striking out “or” at the end of paragraph (a), by adding “or” at the end of paragraph (b) and by adding the following after paragraph (b):

(c) determine whether to refer to the court for review under subsection 672.84(1) a finding that an accused is a high-risk accused.

5. Subsection 672.21(3) of the Act is amended by adding the following after paragraph (b):

(c) determining, under section 672.84, whether to refer to the court for review a finding that an accused is a high-risk accused or whether to revoke such a finding;

1991, c. 43, s. 4; 2005, c. 22, par. 42(e)(F)

6. (1) Subsection 672.47(2) of the French version of the Act is replaced by the following:

Prolongation

(2) Le tribunal, s’il est convaincu qu’il existe des circonstances exceptionnelles le justifiant, peut prolonger le délai préalable à la tenue d’une audience visée au paragraphe (1) jusqu’à un maximum de quatre-vingt-dix jours après le prononcé du verdict.

(2) Section 672.47 of the Act is amended by adding the following after subsection (3):

Exception — high-risk accused

(4) Despite subsections (1) to (3), if the court makes a disposition under subsection 672.64(3), the Review Board shall, not later than 45 days after the day on which the disposition is made, hold a hearing and make a disposition under paragraph 672.54(c), subject to the restrictions set out in that subsection.

Extension of time for hearing

(5) If the court is satisfied that there are exceptional circumstances that warrant it, the court may extend the time for holding a hearing under subsection (4) to a maximum of 90 days after the day on which the disposition is made.

1991, c. 43, s. 4; 2005, c. 22, par. 42(g)(F)

7. (1) Subsection 672.5(1) of the Act is replaced by the following:

Procedure at disposition hearing

672.5 (1) A hearing held by a court or Review Board to make or review a disposition in respect of an accused, including a hearing referred to in subsection 672.84(1) or (3), shall be held in accordance with this section.

(2) Section 672.5 of the Act is amended by adding the following after subsection (5.1):

Notice of discharge

(5.2) If the accused is discharged absolutely under paragraph 672.54(a) or conditionally under paragraph 672.54(b), a notice of the discharge shall, at the victim’s request, be given to the victim within the time and in the manner fixed by the rules of the court or Review Board.

(3) Section 672.5 of the Act is amended by adding the following after subsection (13.2):

Notice to victims — referral of finding to court

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

1999, c. 25, s. 11

(4) Subsection 672.5(14) of the French version of the Act is replaced by the following:

Déclaration de la victime

(14) La victime peut rédiger et déposer auprès du tribunal ou de la commission d’examen une déclaration écrite qui décrit les dommages — corporels ou autres — ou les pertes qui lui ont été causés par la perpétration de l’infraction.

2005, c. 22, s. 16(3)

(5) Subsections 672.5(15.2) to (16) of the Act are replaced by the following:

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, 672.47 or 672.64, 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, 672.47 or 672.64 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 (5.1), (5.2), (13.2), (13.3), (14) and (15.1) to (15.3), “victim” has the same meaning as in subsection 722(4).

1991, c. 43, s. 4

8. Subsection 672.51(1) of the Act is replaced by the following:

Definition of “disposition information”

672.51 (1) In this section, “disposition information” means all or part of an assessment report submitted to the court or Review Board and any other written information before the court or Review Board about the accused that is relevant to making or reviewing a disposition.

2005, c. 22, s. 20

9. The portion of section 672.54 of the Act before paragraph (a) is replaced by the following:

Dispositions that may be made

672.54 When a court or Review Board makes a disposition under subsection 672.45(2), section 672.47, subsection 672.64(3) or section 672.83 or 672.84, it shall, taking into account the safety of the public, which is the paramount consideration, 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 necessary and appropriate in the circumstances:

2005, c. 22, s. 21

10. Section 672.541 of the Act is replaced by the following:

Significant threat to safety of public

672.5401 For the purposes of section 672.54, a significant threat to the safety of the public means a risk of serious physical or psychological harm to members of the public — including any victim of or witness to the offence, or any person under the age of 18 years — resulting from conduct that is criminal in nature but not necessarily violent.

Victim impact statement

672.541 If 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

(a) at a hearing held under section 672.45, 672.47, 672.64, 672.81 or 672.82 or subsection 672.84(5), take into consideration any statement filed by a victim 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;

(b) at a hearing held under section 672.64 or subsection 672.84(3), take into consideration any statement filed by a victim in accordance with subsection 672.5(14), to the extent that the statement is relevant to its consideration of the criteria set out in subsection 672.64(1) or 672.84(3), as the case may be, in deciding whether to find that the accused is a high-risk accused, or to revoke such a finding; and

(c) at a hearing held under section 672.81 or 672.82 in respect of a high-risk accused, take into consideration any statement filed by a victim in accordance with subsection 672.5(14) in determining whether to refer to the court for review the finding that the accused is a high-risk accused, to the extent that the statement is relevant to its consideration of the criteria set out in subsection 672.84(1).

Additional conditions — safety and security

672.542 When a court or Review Board holds a hearing referred to in section 672.5, the court or Review Board shall consider whether it is desirable, in the interests of the safety and security of any person, particularly a victim of or witness to the offence or a justice system participant, to include as a condition of the disposition that the accused

(a) abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the disposition, or refrain from going to any place specified in the disposition; or

(b) comply with any other condition specified in the disposition that the court or Review Board considers necessary to ensure the safety and security of those persons.

1991, c. 43, s. 4

11. (1) Subsection 672.56(1) of the French version of the Act is replaced by the following:

Délégation

672.56 (1) La commission d’examen qui rend une décision à l’égard d’un accusé en vertu des alinéas 672.54b) ou c) peut déléguer au responsable de l’hôpital le pouvoir d’assouplir ou de resserrer les privations de liberté de l’accusé à l’intérieur des limites prévues par la décision et sous réserve des modalités de celle-ci; toute modification qu’ordonne ainsi cette personne est, pour l’application de la présente loi, réputée être une décision de la commission d’examen.

(2) Section 672.56 of the Act is amended by adding the following after subsection (1):

Exception — high-risk accused

(1.1) If the accused is a high-risk accused, any direction is subject to the restrictions set out in subsection 672.64(3).

12. The Act is amended by adding the following after section 672.63:

High-Risk Accused

Finding

672.64 (1) On application made by the prosecutor before any disposition to discharge an accused absolutely, the court may, at the conclusion of a hearing, find the accused to be a high-risk accused if the accused has been found not criminally responsible on account of mental disorder for a serious personal injury offence, as defined in subsection 672.81(1.3), the accused was 18 years of age or more at the time of the commission of the offence and

(a) the court is satisfied that there is a substantial likelihood that the accused will use violence that could endanger the life or safety of another person; or

(b) the court is of the opinion that the acts that constitute the offence were of such a brutal nature as to indicate a risk of grave physical or psychological harm to another person.

Factors to consider

(2) In deciding whether to find that the accused is a high-risk accused, the court shall consider all relevant evidence, including

(a) the nature and circumstances of the offence;

(b) any pattern of repetitive behaviour of which the offence forms a part;

(d) the past and expected course of the accused’s treatment, including the accused’s willingness to follow treatment; and

(e) the opinions of experts who have examined the accused.

Detention of high-risk accused

(3) If the court finds the accused to be a high-risk accused, the court shall make a disposition under paragraph 672.54(c), but the accused’s detention must not be subject to any condition that would permit the accused to be absent from the hospital unless

(a) it is appropriate, in the opinion of the person in charge of the hospital, for the accused to be absent from the hospital for medical reasons or for any purpose that is necessary for the accused’s treatment, if the accused is escorted by a person who is authorized by the person in charge of the hospital; and

(b) a structured plan has been prepared to address any risk related to the accused’s absence and, as a result, that absence will not present an undue risk to the public.

Appeal

(4) A decision not to find an accused to be a high-risk accused is deemed to be a disposition for the purpose of sections 672.72 to 672.78.

For greater certainty

(5) For greater certainty, a finding that an accused is a high-risk accused is a disposition and sections 672.72 to 672.78 apply to it.

1991, c. 43, s. 4

13. Section 672.75 of the Act is replaced by the following:

Automatic suspension of certain dispositions

672.75 The filing of a notice of appeal against a disposition made under section 672.58 suspends the application of the disposition pending the determination of the appeal.

1991, c. 43, s. 4

14. Paragraph 672.76(2)(a) of the Act is replaced by the following:

(a) by order, direct that a disposition made under section 672.58 be carried out pending the determination of the appeal, despite section 672.75;

(a.1) by order, direct that a disposition made under paragraph 627.54(a) be suspended pending the determination of the appeal;

2005, c. 22, s. 27(2)

15. Subsections 672.81(1.4) and (1.5) of the Act are replaced by the following:

Extension on consent — high-risk accused

(1.31) Despite subsections (1) to (1.2), the Review Board may extend the time for holding a hearing in respect of a high-risk accused to a maximum of 36 months after making or reviewing a disposition if the accused is represented by counsel and the accused and the Attorney General consent to the extension.

Extension — no likely improvement

(1.32) Despite subsections (1) to (1.2), at the conclusion of a hearing under subsection 672.47(4) or this section in respect of a high-risk accused, the Review Board may, after making a disposition, extend the time for holding a subsequent hearing under this section to a maximum of 36 months if the Review Board is satisfied on the basis of any relevant information, including disposition information as defined in subsection 672.51(1) and an assessment report made under an assessment ordered under paragraph 672.121(c), that the accused’s condition is not likely to improve and that detention remains necessary for the period of the extension.

Notice

(1.4) If the Review Board extends the time for holding a hearing under subsection (1.2) or (1.32), it shall provide notice of the extension to the accused, the prosecutor and 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) or (1.32) is deemed to be a disposition for the purpose of sections 672.72 to 672.78.

16. The Act is amended by adding the following after section 672.83:

Review of finding — high-risk accused

672.84 (1) If a Review Board holds a hearing under section 672.81 or 672.82 in respect of a high-risk accused, it shall, on the basis of any relevant information, including disposition information as defined in subsection 672.51(1) and an assessment report made under an assessment ordered under paragraph 672.121(c), if it is satisfied that there is not a substantial likelihood that the accused — whether found to be a high-risk accused under paragraph 672.64(1)(a) or (b) — will use violence that could endanger the life or safety of another person, refer the finding for review to the superior court of criminal jurisdiction.

Review of conditions

(2) If the Review Board is not so satisfied, it shall review the conditions of detention imposed under paragraph 672.54(c), subject to the restrictions set out in subsection 672.64(3).

Review of finding by court

(3) If the Review Board refers the finding to the superior court of criminal jurisdiction for review, the court shall, at the conclusion of a hearing, revoke the finding if the court is satisfied that there is not a substantial likelihood that the accused will use violence that could endanger the life or safety of another person, in which case the court or the Review Board shall make a disposition under any of paragraphs 672.54(a) to (c).

Hearing and disposition

(4) Any disposition referred to in subsection (3) is subject to sections 672.45 to 672.47 as if the revocation is a verdict.

Review of conditions

(5) If the court does not revoke the finding, it shall immediately send to the Review Board, in original or copied form, a transcript of the hearing, any other document or information related to the hearing, and all exhibits filed with it, if the transcript, document, information or exhibits are in its possession. The Review Board shall, as soon as practicable but not later than 45 days after the day on which the court decides not to revoke the finding, hold a hearing and review the conditions of detention imposed under paragraph 672.54(c), subject to the restrictions set out in subsection 672.64(3).

Appeal

(6) A decision under subsection (1) about referring the finding to the court for review and a decision under subsection (3) about revoking the finding are deemed to be dispositions for the purpose of sections 672.72 to 672.78.

1991, c. 43, s. 4

17. Subsection 672.88(1) of the Act is replaced by the following:

Review Board of receiving province

672.88 (1) The Review Board of the prov-ince to which an accused is transferred under section 672.86 has exclusive jurisdiction over the accused, and may exercise the powers and shall perform the duties mentioned in sections 672.5 and 672.81 to 672.84 as if that Review Board had made the disposition in respect of the accused.

1991, c. 43, s. 4

18. Subsection 672.89(1) of the Act is replaced by the following:

Other interprovincial transfers

672.89 (1) If an accused who is detained in custody under a disposition made by a Review Board is transferred to another province otherwise than under section 672.86, the Review Board of the province from which the accused is transferred has exclusive jurisdiction over the accused and may continue to exercise the powers and shall continue to perform the duties mentioned in sections 672.5 and 672.81 to 672.84.

2005, c. 22, s. 40

19. Form 48 in Part XXVIII of the Act is amended by replacing “pursuant to section 672.54 or 672.58 of the Criminal Code” with “under section 672.54, 672.58 or 672.64 of the Criminal Code or whether the court should, under subsection 672.84(3) of that Act, revoke a finding that the accused is a high-risk accused”.

2005, c. 22, s. 40

20. Form 48.1 in Part XXVIII of the Act is amended by replacing “section 672.54 of the Criminal Code” with “section 672.54 of the Criminal Code or determine whether the Review Board should, under subsection 672.84(1) of that Act, refer to the superior court of criminal jurisdiction for review a finding that the accused is a high-risk accused”.

R.S., c. N-5

NATIONAL DEFENCE ACT

21. Section 197 of the National Defence Act is amended by adding the following in alphabetical order:

“disposition”
« décision »

“disposition” means an order made by a court martial under section 201, 202 or 202.16 or a finding made by a court martial under subsection 202.161(4);

“significant threat to the safety of the public”
« risque important pour la sécurité du public »

“significant threat to the safety of the public” means a risk of serious physical or psychological harm to members of the public — including any victim of or witness to the offence, or any person under the age of 18 years — resulting from conduct that is criminal in nature but not necessarily violent.

1991, c. 43, s. 18

22. The portion of subsection 201(1) of the Act before paragraph (a) is replaced by the following:

Disposition

201. (1) When a court martial makes a disposition by virtue of subsection 200(2), it shall, taking into account the safety of the public, which is the paramount consideration, the mental condition of the accused person, the reintegration of the accused person into society and the other needs of the accused person, make one of the following dispositions that is necessary and appropriate in the circumstances:

2005, c. 22, s. 49

23. (1) Subparagraph 202.121(1)(b)(ii) of the French version of the Act is replaced by the following:

(ii) d’autre part, il ne présente aucun risque important pour la sécurité du public.

2005, c. 22, s. 49

(2) Paragraph 202.121(4)(b) of the French version of the Act is replaced by the following:

b) d’autre part, il ne présente aucun risque important pour la sécurité du public.

2005, c. 22, s. 49

(3) Paragraph 202.121(7)(b) of the French version of the Act is replaced by the following:

b) qu’il ne présente aucun risque important pour la sécurité du public;

1991, c. 43, s. 18

24. (1) The portion of subsection 202.16(1) of the Act before paragraph (b) is replaced by the following:

Disposition

202.16 (1) When a court martial makes a disposition by virtue of subsection 202.15(1), it shall, taking into account the safety of the public, which is the paramount consideration, the mental condition of the accused person, the reintegration of the accused person into society and the other needs of the accused person, make one of the following dispositions that is necessary and appropriate in the circumstances:

(a) by order, direct that the accused person be released from custody without conditions if, in the opinion of the court martial, the accused person is not a significant threat to the safety of the public;

1991, c. 43, s. 18

(2) Paragraph 202.16(1)(c) of the French version of the Act is replaced by the following:

c) la détention de l’accusé dans un hôpital ou un autre lieu approprié choisi par elle, sous réserve des modalités qu’elle estime indiquées.

25. The Act is amended by adding the following after section 202.16:

High-Risk Accused

Application to court martial

202.161 (1) If a court martial makes a finding under subsection 202.14(1) that an accused person is not responsible on account of mental disorder and it has not terminated its proceedings in respect of the accused person, the Director of Military Prosecutions may make an application to the court martial for a finding that the accused person is a high-risk accused.

Application to Chief Military Judge

(2) If the court martial has terminated its proceedings in respect of the accused person, the Director of Military Prosecutions may make the application to the Chief Military Judge. On receipt of the application, the Chief Military Judge shall cause the Court Martial Administrator to convene a Standing Court Martial.

Restriction

(3) No application shall be made under subsection (1) or (2) if a disposition has been made to release the accused person from custody without conditions or to discharge the accused person absolutely.

Finding

(4) The court martial referred to in subsection (1) or (2) may, at the conclusion of a hearing, find the accused person to be a high-risk accused if the accused person has been found not responsible on account of mental disorder for a serious personal injury offence, the accused person was 18 years of age or more at the time of the commission of the offence and

(a) the court martial is satisfied that there is a substantial likelihood that the accused person will use violence that could endanger the life or safety of another person; or

(b) the court martial is of the opinion that the acts that constitute the offence were of such a brutal nature as to indicate a risk of grave physical or psychological harm to another person.

Definition of “serious personal injury offence”

(5) For the purposes of subsection (4), “serious personal injury offence” means

(a) a serious offence, or an offence referred to in section 77, 86, 87, 92, 95, 113, 120, 124 or 127, 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 offence referred to in section 151, 152, 153, 153.1, 155, 160, 170, 171, 172, 271, 272 or 273 of the Criminal Code that is punishable under section 130 or an attempt to commit such an offence.

Factors to consider

(6) In deciding whether to find that the accused person is a high-risk accused, the court martial shall consider all relevant evidence, including

(a) the nature and circumstances of the offence;

(b) any pattern of repetitive behaviour of which the offence forms a part;

(d) the past and expected course of the accused person’s treatment, including the accused person’s willingness to follow treatment; and

(e) the opinions of experts who have examined the accused person.

Detention of high-risk accused person

(7) If the court martial finds the accused person to be a high-risk accused, the court martial shall make a disposition under paragraph 202.16(1)(c), but the accused person’s detention must not be subject to any condition that would permit the accused person to be absent from the hospital or other appropriate place unless

(a) it is appropriate, in the opinion of the person in charge of the hospital or other appropriate place, for the accused person to be absent from the hospital or place for medical reasons or for any purpose that is necessary for the accused person’s treatment, if the accused person is escorted by a person who is authorized by the person in charge of the hospital or place; and

(b) a structured plan has been prepared to address any risk related to the accused person’s absence and, as a result, that absence will not present an undue risk to the public.

Assessment order

(8) Subject to regulations, if the court martial has reasonable grounds to believe that evidence of the mental condition of an accused person is necessary for the purpose of determining the appropriate disposition to be made under this section, the court martial may make an order for an assessment of the accused person.

Referral to court martial for review

202.162 (1) If a Review Board, in exercising a power under section 202.25, decides to refer to a court martial for review under subsection 672.84(1) of the Criminal Code a finding that an accused person is a high-risk accused, the Review Board shall, immediately after making the decision, cause a copy of it to be sent to the Chief Military Judge.

Convening court martial

(2) On receipt of a copy of the decision, the Chief Military Judge shall cause the Court Martial Administrator to convene a Standing Court Martial to review the finding.

Review of finding by court martial

(3) The court martial shall, at the conclusion of a hearing, revoke the finding if the court martial is satisfied that there is not a substantial likelihood that the accused person will use violence that could endanger the life or safety of another person, in which case sections 202.15 and 202.21 apply as if the court martial has made a finding of not responsible on account of mental disorder.

Finding not revoked

(4) If the court martial does not revoke the finding, it shall immediately send to the Review Board, in original or copied form, a transcript of the hearing, any other document or information related to the hearing, and all exhibits filed with it, if the transcript, document, information or exhibits are in its possession.

Assessment order

(5) Subject to regulations, if the court martial has reasonable grounds to believe that evidence of the mental condition of the accused person is necessary for the purpose of determining whether to revoke the finding, the court martial may make an order for an assessment of the accused person.

26. The Act is amended by adding the following after section 202.2:

Procedure at disposition hearing

202.201 (1) A hearing by a court martial to make or review a disposition in respect of an accused person shall be held in accordance with this section and the regulations.

Hearing to be informal

(2) The hearing may be conducted in as informal a manner as is appropriate in the circumstances.

Interested person may be party

(3) The court martial may designate as a party any person who has a substantial interest in protecting the accused person’s interests, if the court martial is of the opinion that it is just to do so.

Notice of hearing — parties

(4) The court martial shall give notice of the hearing to the parties.

Notice of hearing — victim

(5) The court martial shall, at the request of a victim of the offence, give the victim notice of the hearing and of the relevant provisions of this Act.

Notice of release from custody

(6) If the accused person is released from custody without conditions under paragraph 202.16(1)(a) or with conditions under paragraph 201(1)(a) or 202.16(1)(b), a notice of the release shall, at the victim’s request, be given to the victim within the time and in the manner fixed by regulations.

Order excluding public

(7) If the court martial considers it to be in the accused person’s best interests and not contrary to the public interest, it may order the public or any members of the public to be excluded from the hearing or any part of it.

Right to counsel

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

Assigning counsel

(9) A court martial shall, either before or at the time of the hearing of an accused person who is not represented by counsel, direct that counsel be provided by the Director of Defence Counsel Services if the accused person has been found unfit to stand trial or the interests of military justice require that counsel be provided.

Right of accused person to be present

(10) Subject to subsection (11), the accused person has the right to be present during the entire hearing.

Removal or absence of accused person

(11) The court martial may permit the accused person to be absent during the entire hearing or any part of it on any conditions that the court martial considers appropriate. The court martial may also cause the accused person to be removed and barred from re-entry for the entire hearing or any part of it for any of the following reasons:

(a) the accused person is interrupting the hearing and it is not feasible to continue it in the accused person’s presence;

(b) the court martial is satisfied that the accused person’s presence would likely endanger the life or safety of another person or would seriously impair the treatment or recovery of the accused person; or

(c) the court martial is satisfied that the accused person should not be present for the hearing of evidence, oral or written submissions, or the cross-examination of any witness respecting the existence of grounds for removing the accused person under paragraph (b).

Rights of parties at hearing

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

Witnesses

(13) A party may not compel the attendance of witnesses, but may request the court martial to do so.

Video links

(14) If the accused person agrees, the court martial may permit them to appear by closed-circuit television or any other means that allows the court martial and the accused person to engage in simultaneous visual and oral communication, for any part of the hearing, so long as the accused person is given the opportunity to communicate privately with counsel if they are represented by counsel.

Determination of mental condition of accused person

(15) A court martial that reviews a disposition shall, on receipt of an assessment report, determine if there has been any change in the accused person’s mental condition since the disposition was made or last reviewed that may provide grounds for the accused person’s release from custody under section 202.16. If the court martial determines that there has been such a change, it shall notify every victim of the offence that they may prepare a statement.

Victim impact statement

(16) For the purpose of making or reviewing a disposition in respect of an accused person, a court martial shall consider the statement of any victim of the offence describing the harm done to, or loss suffered by, the victim arising from the commission of the offence.

Procedure

(17) A victim’s statement must be prepared in the form, and filed in accordance with the procedures, provided for by regulations made by the Governor in Council.

Presentation of victim statement

(18) Unless the court martial considers that it would not be in the best interests of the administration of military justice, the court martial shall, at the victim’s request, permit the victim to read their statement or to present the statement in any other manner that the court martial considers appropriate.

Consideration by court martial

(19) Whether or not a statement has been prepared and filed, the court martial may consider any other evidence concerning any victim of the offence for the purpose of making or reviewing the disposition.

Copy of statement

(20) The Court Martial Administrator shall, as soon as feasible after receiving a victim’s statement, ensure that a copy is provided to the prosecutor and to the accused person or their counsel.

Inquiry by court martial

(21) As soon as feasible after a finding of not responsible on account of mental disorder is made and before making a disposition, the court martial shall 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 that they may prepare a statement.

Adjournment

(22) On application of the prosecutor or a victim or on its own motion, the court martial may adjourn the hearing to permit a victim to prepare a statement or to present evidence referred to in subsection (19) if it is satisfied that the adjournment would not interfere with the proper administration of military justice.

Definitions

(23) The following definitions apply in this section.

“common-law partner”
« conjoint de fait »

“common-law partner” means, in relation to an individual, a person who is cohabiting with the individual in a conjugal relationship, having so cohabited for a period of at least one year.

“victim”
« victime »

“victim”, in relation to an offence, means

(a) a person to whom harm was done or who suffered loss as a direct result of the commission of the offence; and

(b) if the person described in paragraph (a) is dead, ill or otherwise incapable of making a statement describing the harm done to, or loss suffered by, the person arising from the commission of the offence, the spouse or common-law partner or any relative of that person, anyone who has in law or fact the custody of that person or is responsible for the care or support of that person or any of their dependants.

Additional conditions — safety and security

202.202 If a court martial holds a hearing referred to in section 202.201, the court martial shall consider whether it is desirable, in the interests of the safety and security of any person, particularly a victim of or witness to the offence or a justice system participant, to include as a condition of the disposition that the accused

(a) abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the disposition, or refrain from going to any place specified in the disposition; or

(b) comply with any other condition specified in the disposition that the court martial considers necessary to ensure the safety and security of those persons.

27. Subsection 202.24(3) of the Act is amended by adding the following after paragraph (b):

2005, c. 22, s. 58

28. Subsection 202.25(1) of the Act is 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 or subsection 202.161(4), except for the powers and duties referred to in sections 672.851 and 672.86 to 672.89 of the Criminal Code.

References to Attorney General

(1.1) For the purpose of subsection (1), a reference to the Attorney General in subsections 672.81(1.1) and (1.31) of the Criminal Code shall be read as a reference to the Director of Military Prosecutions.

29. Section 230 of the Act is amended by adding the following after paragraph (e):

(e.1) the legality of a finding made under subsection 202.161(4) or a decision made under subsection 202.162(3) about revoking such a finding;

30. Section 230.1 of the Act is amended by adding the following after paragraph (f):

(f.01) the legality of a decision not to make a finding under subsection 202.161(4) or a decision made under subsection 202.162(3) about revoking such a finding;

1991, c. 43, s. 22

31. (1) Subsection 233(1) of the Act is replaced by the following:

Automatic suspension of certain dispositions

233. (1) Subject to subsection (2), if the disposition appealed from is a disposition made under section 202, the filing of a Notice of Appeal in accordance with section 232 suspends the application of the disposition pending the determination of the appeal.

1991, c. 43, s. 22

(2) Paragraph 233(2)(a) of the Act is replaced by the following:

(a) by order, direct that the application of a disposition made under section 202 not be suspended pending the determination of the appeal;

(a.1) by order, direct that the application of a disposition made under paragraph 202.16(1)(a) be suspended pending the determination of the appeal;

COORDINATING AMENDMENTS

Bill C-15

32. (1) Subsections (2) to (5) apply if Bill C-15, introduced in the 1st session of the 41st Parliament and entitled the Strengthening Military Justice in the Defence of Canada Act (in this section referred to as the “other Act”), receives royal assent.

(2) If section 59 of the other Act comes into force before section 26 of this Act, then, on the day on which that section 59 comes into force, that section 26 is replaced by the following:

26. Section 202.201 of the Act is replaced by the following:

Procedure at disposition hearing

202.201 (1) A hearing by a court martial to make or review a disposition in respect of an accused person shall be held in accordance with this section and the regulations.

Hearing to be informal

(2) The hearing may be conducted in as informal a manner as is appropriate in the circumstances.

Interested person may be party

Notice of hearing — parties

(4) The court martial shall give notice of the hearing to the parties.

Notice of hearing — victim

(5) The court martial shall, at the request of a victim of the offence, give the victim notice of the hearing and of the relevant provisions of this Act.

Notice of release from custody

Order excluding public

Right to counsel

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

Assigning counsel

Right of accused person to be present

(10) Subject to subsection (11), the accused person has the right to be present during the entire hearing.

Removal or absence of accused person

(a) the accused person is interrupting the hearing and it is not feasible to continue it in the accused person’s presence;

Rights of parties at hearing

Witnesses

(13) A party may not compel the attendance of witnesses, but may request the court martial to do so.

Video links

Determination of mental condition of accused person

Victim impact statement

Procedure

(17) A victim’s statement must be prepared in the form, and filed in accordance with the procedures, provided for by regulations made by the Governor in Council.

Presentation of victim statement

Consideration by court martial

Copy of statement

(20) The Court Martial Administrator shall, as soon as feasible after receiving a victim’s statement, ensure that a copy is provided to the prosecutor and to the accused person or their counsel.

Inquiry by court martial

Adjournment

Definition of “victim”

(23) In this section, “victim” has the same meaning as in section 203.

Additional conditions — safety and security

(a) abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the disposition, or refrain from going to any place specified in the disposition; or

(b) comply with any other condition specified in the disposition that the court martial considers necessary to ensure the safety and security of those persons.

(3) If section 26 of this Act comes into force before section 59 of the other Act, then, on the day on which that section 26 comes into force, that section 59 is replaced by the following:

59. Subsection 202.201(23) of the Act is replaced by the following:

Definition of “victim”

(23) In this section, “victim” has the same meaning as in section 203.

(4) If section 59 of the other Act comes into force on the same day as section 26 of this Act, then that section 26 is deemed to have come into force before that section 59 and subsection (3) applies as a consequence.

(5) On the first day on which both section 61 of the other Act and section 28 of this Act are in force, subsection 202.25(1) of the National Defence Act is 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 or subsection 202.161(4), except for the powers and duties referred to in subsections 672.5(8.1) and (8.2) and sections 672.851 and 672.86 to 672.89 of the Criminal Code.

References to Attorney General

(1.1) For the purpose of subsection (1), a reference to the Attorney General of a province in which a hearing is held under subsection 672.5(3) of the Criminal Code and a reference to the Attorney General in subsections 672.81(1.1) and (1.31) of that Act shall be read as a reference to the Director of Military Prosecutions.

COMING INTO FORCE

Three months after royal assent

33. (1) Sections 1 to 20 come into force three months after the day on which this Act receives royal assent.

Order in council

(2) Sections 21 to 31 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

Explanatory Notes

Criminal Code

Clause 2: (1) Existing text of the definition:

“disposition” means an order made by a court or Review Board under section 672.54 or an order made by a court under section 672.58;

(2) New.

Clause 3: Relevant portion of section 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

Clause 4: Relevant portion of section 672.121:

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

Clause 5: Relevant portion of subsection 672.21(3):

(3) Notwithstanding subsection (2), evidence of a protected statement is admissible for the purpose of

Clause 6: (1) Existing text of subsection 672.47(2):

(2) Where the court is satisfied that there are exceptional circumstances that warrant it, the court may extend the time for holding a hearing under subsection (1) to a maximum of ninety days after the verdict was rendered.

(2) New.

Clause 7: (1) Existing text of subsection 672.5(1):

672.5 (1) A hearing held by a court or Review Board to make or review a disposition in respect of an accused shall be held in accordance with this section.

(2) New.

(3) New.

(4) Existing text of subsection 672.5(14):

(14) A victim of the offence may prepare and file with the court or Review Board a written statement describing the harm done to, or loss suffered by, the victim arising from the commission of the offence.

(5) Existing text of subsections 672.5(15.2) to (16):

(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).

(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.

(16) In subsections (14) and (15.1) to (15.3), “victim” has the same meaning as in subsection 722(4).

Clause 8: Existing text of subsection 672.51(1):

Clause 9: Relevant portion of section 672.54:

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:

Clause 10: 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, 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.

Clause 11: (1) Existing text of subsection 672.56(1):

672.56 (1) A Review Board that makes a disposition in respect of an accused under paragraph 672.54(b) or (c) may delegate to the person in charge of the hospital authority to direct that the restrictions on the liberty of the accused be increased or decreased within any limits and subject to any conditions set out in that disposition, and any direction so made is deemed for the purposes of this Act to be a disposition made by the Review Board.

(2) New.

Clause 12: New.

Clause 13: Existing text of section 672.75:

672.75 The filing of a notice of appeal against a disposition made under paragraph 672.54(a) or section 672.58 suspends the application of the disposition pending the determination of the appeal.

Clause 14: Relevant portion of subsection 672.76(2):

(2) On receipt of an application made pursuant to subsection (1) a judge of the court of appeal may, if satisfied that the mental condition of the accused justifies it,

(a) by order, direct that a disposition made under paragraph 672.54(a) or section 672.58 be carried out pending the determination of the appeal, notwithstanding section 672.75;

Clause 15: Existing text of subsections 672.81(1.4) and (1.5):

(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, the prosecutor and the person in charge of the hospital where the accused is detained.

(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.

Clause 16: New.

Clause 17: Existing text of subsection 672.88(1):

672.88 (1) The Review Board of the province to which an accused is transferred pursuant to section 672.86 has exclusive jurisdiction over the accused, and may exercise the powers and shall perform the duties mentioned in sections 672.5 and 672.81 to 672.83 as if that Review Board had made the disposition in respect of the accused.

Clause 18: Existing text of subsection 672.89(1):

672.89 (1) Where an accused who is detained in custody pursuant to a disposition made by a Review Board is transferred to another province otherwise than pursuant to section 672.86, the Review Board of the province from which the accused is transferred has exclusive jurisdiction over the accused and may continue to exercise the powers and shall continue to perform the duties mentioned in sections 672.5 and 672.81 to 672.83.

National Defence Act

Clause 21: New.

Clause 22: Relevant portion of subsection 201(1):

201. (1) Where a court martial makes a disposition pursuant to subsection 200(2), it shall, taking into consideration the need to protect the public from dangerous persons, the mental condition of the accused person, the reintegration of the accused person into society and the other needs of the accused person, make one of the following dispositions that is the least onerous and least restrictive to the accused person:

Clause 23: (1) Relevant portion of subsection 202.121(1):

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

...

(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

...

(ii) the accused person does not pose a significant threat to the safety of the public.

(2) Relevant portion of subsection 202.121(4):

(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

...

(b) the accused person does not pose a significant threat to the safety of the public.

(3) Relevant portion of subsection 202.121(7):

(7) The court martial may, on completion of an inquiry under this section, order a stay of proceedings if it is satisfied

...

(b) that the accused does not pose a significant threat to the safety of the public; and

Clause 24: (1) and (2) Relevant portion of subsection 202.16(1):

202.16 (1) Where a court martial makes a disposition pursuant to subsection 202.15(1), it shall, taking into consideration the need to protect the public from dangerous persons, the mental condition of the accused person, the reintegration of the accused person into society and the other needs of the accused person, make one of the following dispositions that is the least onerous and least restrictive to the accused person:

(a) by order, direct that the accused person be released from custody without conditions where, in the opinion of the court martial, the accused person is not a significant risk to the safety of the public;

...

(c) by order, direct that the accused person be detained in custody in a hospital or other appropriate place determined by the court martial, subject to such conditions as the court martial considers appropriate.

Clause 25: New.

Clause 26: New.

Clause 27: Relevant portion of subsection 202.24(3):

(3) Notwithstanding subsection (2), evidence of a protected statement is admissible for the purpose of

Clause 28: Existing text of subsection 202.25(1):

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.

Clause 29: Relevant portion of section 230:

230. Every person subject to the Code of Service Discipline 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 30: 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 31: (1) Existing text of subsection 233(1):

233. (1) Subject to subsection (2), where the disposition appealed from is a disposition made under section 202 or paragraph 202.16(1)(a), the filing of a Notice of Appeal in accordance with section 232 suspends the application of the disposition pending the determination of the appeal.

(2) Relevant portion of subsection 233(2):

(2) A judge of the Court Martial Appeal Court may, on application of any party who gives notice to each of the other parties within the time and in the manner prescribed under subsection 244(1), where the judge is satisfied that the mental condition of the accused justifies the taking of such action,

(a) by order, direct that the application of a disposition made under section 202 or paragraph 202.16(1)(a) not be suspended pending the determination of the appeal;

Table of Contents

COORDINATING AMENDMENTS

COMING INTO FORCE