About the Review Board


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Overview

The Manitoba Criminal Code Review Board (the "Review Board") is an independent tribunal, established by the Province of Manitoba pursuant to section 672.38(1) of the Criminal Code of Canada.

The Review Board has jurisdiction to hold hearings to make and review dispositions for any accused who has been subject to a verdict of not criminally responsible on account of mental disorder (NCRMD) or who has been found unfit to stand trial.

The Review Board is tasked with holding a hearing at least once annually to assess each accused who has been found not criminally responsible or unfit to stand trial as long as the accused is under the jurisdiction of the Board.

At the conclusion of each hearing, the Review Board must decide whether the accused poses a significant risk to the safety of the public and issue an order accordingly. Orders may include:

  • an absolute discharge, pursuant to which an accused is free of the jurisdiction of the Review Board;
  • a conditional discharge, pursuant to which an accused may be permitted to live in the community subject to certain conditions or restrictions deemed appropriate by the Review Board
  • a detention order, pursuant to which the accused is detained in custody, typically in a hospital or other secure forensic setting.

When making its decisions, the Review Board's paramount consideration is the safety of the public. The Review Board is also required to take into consideration the mental condition of the accused, the reintegration of the accused into society, as well as the other needs of the accused. The Review Board process is intended to be rehabilitative, not punitive, with the goal, where appropriate, of safely reintroducing an accused into the community.

A one-page document with key information about the Review Board is available here.


Background

The courts and Parliament have determined that it is unfair to hold mentally ill persons to the same standard of culpability as those without mental illness. At the same time, courts and Parliament also recognize that it is important to protect the public from mentally ill persons who are dangerous. As a result, in 1992, Parliament enacted Part XX.1 of the Criminal Code. Among other things, Part XX.1 of the Criminal Code requires each province and territory in Canada to establish a Review Board to hold hearings and make and review dispositions for anyone found by a court to be unfit to stand trial or not criminally responsible on account of mental disorder.


Mandate

The mandate of the Review Board is set out in s. 672.38 (1) of the Criminal Code:

672.38 (1) A Review Board shall be established or designated for each province to make or review dispositions concerning any accused in respect of whom a verdict of not criminally responsible by reason of mental disorder or unfit to stand trial is rendered, and shall consist of not fewer than five members appointed by the lieutenant governor in council of the province.

Persons under Review Board jurisdiction are referred to as "accused" as they have been charged with a criminal offence but have not been convicted.


Composition of the Review Board and Quorum

The Criminal Code requires Review Boards to be appointed in every province and territory. The Chair of the Review Board must be either a judge, a retired judge, or a person qualified to be appointed as a judge. At least one member of the Review Board must be qualified to practice psychiatry. Other members include individuals who are qualified professionals with relevant experience.

Quorum for the Review Board consists of at least three members:

  • the Review Board Chair or a designated alternate chair
  • a psychiatrist
  • any other member

Members of the Review Board

Current members of the Review Board are:

  • Karen Wittman
Chairperson
  • Jamie Jurczak
Alternate Chair
  • Ken Mandzuik, K.C.
Alternate Chair
  • Kathleen McCandless
Alternate Chair
  • Andrew Thompson
Alternate Chair
  • Dr. Marc Teillet
Psychiatrist
  • Dr. Jim Skinner
Psychiatrist
  • Dr. Tom Thompson
Psychiatrist
  • Dr. Hazel Wiebe
Psychiatrist
  • Jacob Hiebert
lay member representing the public

Not Criminally Responsible on Account of Mental Disorder (NCRMD)

A person who has been found by a court to be not criminally responsible on account of mental disorder (NCRMD) is deemed to have been suffering from a mental disorder at the time of the criminal offence that rendered the person incapable of appreciating the nature and quality of the alleged illegal act or of knowing that it was wrong.

Where a person is found NCRMD, the verdict is final. The NCRMD verdict is distinct from the other criminal law verdicts of "guilty" and "acquitted." To issue an NCRMD verdict, two criteria must be met:

  1. The court must be satisfied beyond a reasonable doubt that the accused committed the acts alleged to constitute the offence.
  2. The court must be satisfied that, on a balance of probabilities, or more likely than not, the accused committed the act or acts while suffering from a mental disorder that rendered him or her incapable of appreciating the nature or quality of the act, or of knowing that it was wrong.

In dealing with an accused found NCRMD, the Review Board has two main goals: to protect the public from dangerous persons and, at the same time, treat mentally disordered offenders fairly and appropriately. The Criminal Code recognizes that while some accused who have been found NCRMD may, by virtue of their illness, be dangerous to the safety of the public after the verdict, others may not. Part of the role and responsibility of the Review Board is to assess the dangerousness of each individual NCRMD accused in order to make a fair and just decision about the liberty of the person while at the same time protecting the public from dangerous persons.


Unfit to Stand Trial

An accused who is found unfit to stand trial is someone who, on account of mental disorder, is unable to conduct a defense or to provide instructions to counsel to do so because the accused is unable to understand the nature and object of the proceedings, unable to understand the possible consequences of the proceedings, or unable to communicate with counsel.

The law recognizes that it would be unfair to force an unfit accused person to stand trial when he or she is too ill to understand what the trial is about or to be able to provide instructions to legal counsel.

If the Review Board is of the opinion that, at the time of its hearing, an accused is fit to stand trial, the accused is returned to court for trial. If the Review Board determines that the person remains unfit, the person is either detained in custody or discharged into the community under conditions imposed by the Review Board.


Factors considered by the Review Board at Hearings

In rendering its decisions, the Review Board is required to take into consideration the safety of the public, which is the paramount consideration, as well as the mental condition of the accused, the reintegration into society of the accused, and the other needs of the accused.

A "significant threat to the safety of the public" has been determined by the Supreme Court of Canada to mean a real risk of physical or psychological harm to members of the public that is serious in the sense that is more than merely trifling or annoying.

There is no presumption that an NCRMD accused poses a significant threat to the safety of the public. Restrictions on the accused's liberty can only be justified if, at the time of the hearing, the evidence before the Review Board shows that the NCRMD accused actually constitutes such a threat.

The Review Board process is intended to be rehabilitative, not punitive, with the goal, where appropriate, of safely reintroducing an accused into the community. As a consequence, and in addition to considering the safety of the public, the Review Board is also required to take into consideration the mental condition of the accused, the reintegration of the accused into society, as well as the other needs of the accused.


Possible dispositions that may be issued by the Review Board

The Review Board is responsible for making decisions with respect to an accused. The decision made by the Review Board is referred to as the 'disposition.'

The Review Board may impose one of three dispositions for an accused found NCRMD and one of two dispositions for an accused found unfit to stand trial.

For those who are found not NCRMD, after considering the risk to the safety of the public, the Review Board may impose an absolute discharge, a conditional discharge or a detention order. If the Review Board concludes that the NCRMD accused is not a significant threat to the safety of the public, it must discharge the accused absolutely from the jurisdiction of the Review Board. The accused is then free of the jurisdiction of the Review Board.

If the Review Board concludes that the NCRMD accused is a significant threat to the safety of the public, it has two alternatives. It may order that they be discharged subject to conditions that the Board considers necessary, or it may direct that they be detained in custody in a hospital, again subject to appropriate conditions.

Pursuant to a conditional discharge, an accused may be permitted to live in the community subject to certain conditions or restrictions deemed appropriate by the Review Board. Pursuant to a detention order, the accused is detained in custody, typically in a hospital or other secure forensic setting, and is subject to certain conditions or restrictions as deemed appropriate or necessary by the Review Board.

For those who are found unfit to stand trial, if the Review Board is of the opinion that the accused remains unfit to stand trial, the Review Board may impose either a conditional discharge or a detention order. An accused who is unfit to stand trial is not entitled to an absolute discharge because the person has not yet been tried for the offence. If the Review Board is of the opinion that, at the time of the hearing, a previously unfit accused has been restored to fitness and is fit to stand trial, the accused is returned to court for trial.

Both a conditional discharge and a detention order may be made subject to certain conditions with which the accused must comply. In making this decision, the Review Board must again consider the need to protect the public from dangerous persons, as well as the mental condition of the NCRMD accused, the reintegration of the accused into society, and the other needs of the NCRMD accused, and make the order that is "necessary and appropriate." This phrase has been interpreted by the courts as being the disposition that is the least onerous and least restrictive to the accused. The Review Board process is intended to be rehabilitative, not punitive, and so the dispositions are intended to safely reintroduce an accused into the community.

A majority vote of the Review Board panel determines the disposition that will be made.


Indigenous Accused

In all cases, the Review Board is required to make the disposition that is the least restrictive and onerous, consistent with public safety. When considering the appropriate disposition for Indigenous accused, the Review Board is required to consider the accused's unique circumstances.


Frequency of hearings

All dispositions of accused who appear before the Review Board are reviewed at least annually or more frequently at the discretion of the Review Board or at the request of one of the parties. If an accused who has been found unfit to stand trial is later found to be fit to stand trial, the Board must order the return of the accused to court.