Mental Disorder Review Board
Background*
In 1992 the Parliament of Canada passed Bill C-30 which amended section 16 of the Criminal Code of Canada. This amendment represented a significant change in the intersection of criminal law and persons suffering from mental illnesses. It replaced what were previously procedures associated with questions of fitness to stand trial and what was previously the defence of insanity to a criminal charge. While the substantive law respecting what constituted a mental disorder did not change, the manner in which such persons were dealt with did.
The law regarding mental disorders or, reducing responsibility for criminal activity, has essentially remained unchanged in Canada since the English decisions regarding James Hadfield (1880) and Daniel M'Naghten (1843). As a result of acquittals by reason of insanity in these cases, the M'Naghten rules were developed, which have been thereafter applied in the Canadian law context for over a century. These rules provided that a person was presumed sane unless it could be clearly proven that, at the time of committing the act, the party accused was labouring under such a defect of reason, from disease of the mind, as to not know the nature and quality of the act he was doing; or if he did know, that he did not appreciate that it was wrong. This substantive test continues to be applied in Canada in determining whether there is a question of mental illness of the accused.
Prior to the C-30 changes, a person found to be not criminally responsible was held in custody at the pleasure of the lieutenant governor. This posed obvious conflicts with the Charter of Rights, including but not limited to the indeterminate nature of the disposition and the fact that any process to review it was not public and not subject to the procedural safeguards provided in other criminal law contexts.
While Review Boards were provided for to give advice and assistance to the lieutenant governor, there was no obligation to accept, receive or follow such advice.
This charter infringement aspect of the pre C-30 law was the focus of a 1991 court decision in The Queen v. Swain (1 S.C.R. 933 (1991)). In that decision the Supreme Court of Canada held that the Criminal Code provision requiring that an accused "be held in strict custody to await the pleasure of the lieutenant governor" was contrary to sections 7 and 9 of the Canadian Charter of Rights and Freedoms and it could not be justified under section 1. The Mental Disorder Review Board amendments were introduced in 1991. These amendments have significantly changed the procedures surrounding the treatment of persons with mental disorders charged and/or convicted of offences under the Criminal Code.
*Excerpt from Peterson, Katherine R. The Northwest Territories Mental Disorder Review Board: Report to the Honourable Charles Dent, Minister of Justice, Government of the Northwest Territories. 2005
