Bill C-10

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:

CRIMINAL CODE

1. (1) Section 672.1 of the Criminal Code is renumbered as subsection 672.1(1).

(2) The definition “assessment” in subsection 672.1(1) of the Act is replaced by the following:

“assessment” means an assessment by a medical practitioner or any other person who has been designated by the Attorney General as being qualified to conduct an assessment 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):

(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.

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:

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.

4. Subsection 672.13(2) of the Act is replaced by the following:

(2) An assessment order may be in Form 48 or 48.1.

5. Subsection 672.14(3) of the Act is replaced by the following:

(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.

6. Subsection 672.15(1) of the Act is replaced by the following:

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.

7. (1) The portion of subsection 672.16(1) of the Act before paragraph (a) is replaced by the following:

672.16 (1) Subject to subsection (3), an accused shall not be detained in custody under an assessment order of a court unless

(2) Subsection 672.16(2) of the Act is replaced by the following:

(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.

(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.

(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.

(3) Subsection 672.16(3) of the English version of the Act is replaced by the following:

(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.

8. Section 672.17 of the Act is replaced by the following:

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.

9. Section 672.18 of the French version of the Act is replaced by the following:

10. Section 672.191 of the Act is replaced by the following:

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.

11. (1) Subsection 672.2(2) of the Act is replaced by the following:

(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.

(2) Subsection 672.2(4) of the Act is replaced by the following:

(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.

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):

(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):

(1.1) If the court does not hold a hearing under subsection (1), it shall send without delay, following the verdict, in original or copied form, any transcript of the court proceedings in respect of the accused, any other document or information related to the proceedings, and all exhibits filed with it, to the Review Board that has jurisdiction in respect of the matter, if the transcript, document, information or exhibits are in its possession.

15. Subsection 672.47(3) of the Act is replaced by the following:

(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.

16. (1) Section 672.5 of the Act is amended by adding the following after subsection (5):

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

(1.1) The portion of subsection 672.5(8) of the Act before paragraph (a) is replaced by the following:

(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):

(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.

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

(3) Subsection 672.5(16) of the Act is replaced by the following:

(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.

(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).

17. The Act is amended by adding the following after section 672.5:

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.

(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.

(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.

(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.

(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.

(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.

(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.

(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.

(9) An order made under subsection (3) may be subject to any conditions that the Review Board thinks fit.

(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.

(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.

(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.

18. The portion of subsection 672.51(11) of the Act before paragraph (a) is replaced by the following:

(11) No person shall publish in any doc­ument or broadcast or transmit in any way

19. Subsection 672.52(2) of the Act is replaced by the following:

(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, 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.

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

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:

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

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.

22. Subsection 672.55(2) of the Act is repealed.

23. Section 672.63 of the Act is replaced by the following:

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.

25. Subsection 672.67(2) of the Act is replaced by the following:

(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.

26. Sections 672.79 and 672.8 of the Act are repealed.

27. (1) Subsection 672.81(1) of the French version of the Act is replaced by the following:

(2) Subsection 672.81(2) of the Act is replaced by the following:

(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.

(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.

(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.

(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.

(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.

(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).

28. Subsection 672.82(1) of the Act is replaced by the following:

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.

(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.

29. Subsection 672.83(2) of the Act is repealed.

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

32. (1) The portion of section 672.85 of the Act before paragraph (a) is replaced by the following:

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

(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 the hearing at the time and place fixed for it.

33. The Act is amended by adding the following after section 672.85:

Stay of Proceedings

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 ever become fit to stand trial, and

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

(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.

(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.

(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 ever become fit to stand trial; and

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

(5) If the court holds an inquiry under subsection (3) or (4), it shall order an assessment of the accused.

(6) Section 672.51 applies to an inquiry of the court under this section.

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

(a) on the basis of clear information, that the accused remains unfit to stand trial and is not likely to ever become fit to stand trial;

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

(c) that a stay is in the interests of the 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.

(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.

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.

(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.

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.

(2) Subsection 672.86(3) of the Act is replaced by the following:

(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.

(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.

35. Section 672.9 of the French version of the Act is replaced by the following:

36. Sections 672.91 to 672.94 of the Act are replaced by the following:

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.

672.92 (1) 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

(a) issue a summons or appearance notice compelling the accused’s appearance before a justice, and

(b) deliver the accused to the place specified in the disposition or assessment order.

(2) 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,

(iii) prevent the commission of an offence, or

(iv) prevent the accused from contravening or failing to comply with the disposition or assessment order;

(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 a justice.

(3) If a peace officer does not release the accused, 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.

(4) If a peace officer arrests an accused under section 672.91 who is subject to a disposition under paragraph 672.54(c), 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.

(5) If a justice described in subsection (3) or (4) is not available within twenty-four hours after the arrest, the accused shall be taken before a justice as soon as practicable.

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.

(1.1) If the justice releases the accused, notice shall be given to the court or Review Board, as the case may be, that made the disposition or assessment order.

(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 a Review Board with respect to the disposition 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 the court or Review Board, as the case may be, that made the disposition or assessment order.

672.94 Where a Review Board receives a notice given under subsection 672.93(1.1) or (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.

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.

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.

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 ............... .

41. Form 51 in Part XXVIII of the Act is repealed.

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

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:

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.

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.

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:

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,

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.

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.

48. Subsection 202.12(2) of the Act is replaced by the following:

(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.

(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:

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 ever become fit to stand trial, and

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

(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.

(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.

(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 ever become fit to stand trial; and

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

(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.

(6) If the court martial holds an inquiry under subsection (3) or (4), it shall order an assessment of the accused person.

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

(a) on the basis of clear information, that the accused person remains unfit to stand trial and is not likely to ever become fit to stand trial;

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

(c) that a stay is in the interests of the 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.

(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.

50. The portion of subsection 202.17(1) of the Act before paragraph (a) is replaced by the following:

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

51. Subsection 202.18(1) of the Act is replaced by the following:

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.

52. Subsection 202.19(1) of the Act is replaced by the following:

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.

53. Section 202.2 of the Act is replaced by the following:

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.

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

55. Subsection 202.22(3) of the Act is replaced by the following:

(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, in original or copied form, a transcript of the hearing, any document or information relating to the hearing and all exhibits filed with it, if the transcript, document, information or exhibits are in its possession.

(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, in original or copied form, any transcript of the proceedings in respect of the accused, any document or information relating to the proceedings and all exhibits filed with it, if the transcript, document, information or exhibits are in its possession.

56. Subsections 202.23(2) to (4) of the Act are replaced by the following:

(2) An officer, a non-commissioned member appointed for the purposes of section 156, or any other peace officer within the meaning of the Criminal Code, may arrest an accused person without a warrant if they have reasonable grounds to believe that the accused person

(a) is at large contrary to the terms of a disposition made by a court martial under section 201, 202 or 202.16 or by a Review Board; or

(b) has contravened or wilfully failed to comply with the disposition or any condition of a disposition or assessment order, or is about to do so.

(2.1) An officer, a non-commissioned member or another peace officer who makes an arrest under subsection (2) may, as soon as possible, release an accused person arrested under that subsection who is subject to a disposition made by a court martial under paragraph 201(1)(a) or 202.16(1)(b), a disposition made by a Review Board under paragraph 672.54(b) of the Criminal Code or an assessment order and deliver the accused person to the place specified in the disposition or assessment order.

(2.2) The officer, non-commissioned member or other peace officer shall not release the accused person if they believe on reasonable grounds

(a) that it is necessary in the public interest that the accused person be detained in custody having regard to all the circumstances, including the need to

(i) establish the identity of the accused person,

(ii) establish the terms and conditions of the disposition or assessment order referred to in subsection (2.1),

(iii) prevent the commission of an offence, or

(iv) prevent the accused person from doing anything referred to in paragraph (2)(a) or (b); or

(b) that the accused person is subject to a disposition or an assessment order of a Review Board of another province.

(2.3) An accused person referred to in subsection (2.1) who is not released or an accused person arrested under subsection (2) who is subject to a disposition of a court martial made under paragraph 201(1)(b), subsection 202(1) or paragraph 202.16(1)(c) or a disposition of a Review Board made under paragraph 672.54(c) of the Criminal Code shall be taken to a justice having jurisdiction in the territorial division in which the accused person is arrested or a commanding officer without unreasonable delay and in any event within a period of twenty-four hours after the arrest.

(3) 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 commanding officer as soon as practicable.

(3.1) A justice or commanding officer shall release an accused who is brought before them unless they are satisfied that there are reasonable grounds to believe that the circumstances referred to in paragraph (2)(a) or (b) exist.

(3.2) If the justice or commanding officer releases the accused, notice shall be given to the Review Board that made the disposition or to the court martial or Review Board that made the assessment order.

(4) If a justice or commanding officer before whom an accused person is taken is satisfied that there are reasonable grounds to believe that the circumstances referred to in paragraph (2)(a) or (b) exist, the justice or commanding officer may, pending a hearing of a Review Board with respect to the disposition or a hearing of a court martial or Review Board with respect to the assessment order, make an order that is appropriate in the circumstances in relation to the accused person, including an order that the accused person be delivered to a place that is specified in the disposition or assessment order. If the justice or commanding officer makes an order under this subsection, notice shall be given to the Review Board that made the disposition or to the court martial or Review Board that made the assessment order.

57. Paragraph 202.24(3)(c) of the Act is repealed.

58. Sections 202.25 and 202.26 of the Act are replaced by the following:

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.

(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.

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:

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.

(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.

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).

Nuclear Safety and Control Act

62. Section 124 of the Nuclear Safety and Control Act is repealed.

Youth Criminal Justice Act

63. (1) Subsection 141(1) of the Youth Criminal Justice Act is replaced by the following:

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

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:

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

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.