The Hearing Process


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Nature of Review Board Hearings

Review Board hearings are inquisitorial rather than adversarial. Under an inquisitorial system, the Review Board is expected to play an active role in assessing the facts and evidence. The Review Board has the burden of reviewing all relevant evidence on both sides of the case, of searching out and considering evidence that favours restricting the liberty of the NCRMD accused and searching out and considering evidence favouring an absolute discharge. The legal and evidentiary burden rests with the Review Board.


Powers of the Review Board

In order to meet the burden upon it, and pursuant to the powers provided to it by The Inquiries Act, the Review Board has the power to summon witnesses to provide evidence or produce documents and records, and to enforce the attendance of a witness.


Parties to the Hearing

A "party" is a person with the right to receive notice of a court or administrative tribunal hearing, and the right to fully participate in the hearing. The parties to all hearings before the Review Board include:

  • the NCRMD or unfit accused
  • the Director of Adult or Youth Forensic Psychiatric Services ("Director")
  • the provincial Attorney General

In addition to the accused, the Director, and the Crown, the Review Board also has general discretion to designate as a party any person who has a substantial interest in protecting the interests of the accused.

Where an accused becomes a "dual status offender," the Minister of Public Safety and Emergency Preparedness or the relevant minister responsible for corrections must be given notice of any placement hearing.


Representation at Hearings

Parties are entitled to be represented at hearings by counsel or other representatives.

Where no counsel or advocate has been retained by the accused, the Criminal Code requires the Review Board to assign a lawyer for any accused who is unfit to stand trial and gives the Review Board discretion to assign counsel for any NCRMD accused where the Chair determines this to be necessary to ensure a fair hearing.


Types of Review Board Hearings

After a verdict rendering an accused NCRMD or unfit to stand trial, the court may make an initial disposition or may refer the accused to the Review Board.

  1. Mandatory Periodic Review
    Once an accused has been referred to the Review Board, the Review Board is required to hold an annual hearing for the accused, also known as a mandatory periodic review. The Review Board must continue to hold a hearing annually for the accused until such time as the Review Board either absolutely discharges an NCRMD accused, or finds that a previously unfit accused is fit to stand trial in which case the formerly unfit accused is to be returned to court.
    The Review Board must also hold a disposition review hearing where the accused has experienced a significant increased restriction on his or her liberties for a period of seven days or more or where the accused is detained in custody and a sentence of imprisonment is imposed on the accused related to another offence.
  2. Discretionary Periodic Review
    In addition to mandatory hearings, the Review Board has discretion to hold a discretionary periodic review hearing at any time, on its own motion or at the request of a party.
  3. Placement Hearings for Dual Status Offenders
    Where an NCRMD or unfit accused is under the jurisdiction of the Board and is later convicted of a crime and sentenced to custody, the Review Board may choose to hold a "placement hearing" if the Board is of the opinion that the place of custody is inappropriate to meet the mental health needs of the offender or to safeguard the well-being of other persons. A placement hearing requires the Board to decide whether the accused should be detained in a hospital or in a prison.

Location and Time of Hearings

Most Review Board hearings are typically held each Monday in Courtroom 312, Law Courts Building, 408 York Ave., in Winnipeg. Some hearings are also held at the Selkirk Mental Health Centre. Where necessary, additional dates and times may be scheduled for hearings.


Public Attendance

Review Board hearings are generally open to the public. However, the Review Board may close the hearing to the public if it is in the best interests of the accused and not contrary to the public interest. A member of the public interested in attending a hearing should contact the Review Board Administrator.


The Hearing Process

Review Board hearings are usually informal. However, because the Canadian Charter of Rights and Freedoms interests are at stake, the Review Board must ensure that informality does not compromise the accused's right to be treated in a procedurally fair manner.

The Review Board hears evidence from witnesses, then the witnesses are subject to questions and cross-examination by the Review Board, the Crown and the accused. After hearing all of the evidence, the Review Board hears closing submissions. The Review Board then deliberates in private.

Hearings are held in person, or by video with the accused's agreement. The Board sometimes receives evidence by video where this can be done fairly. All hearings are recorded.


Orders and Reasons

The Review Board must provide written orders and reasons for each disposition. The order is the Review Board's formal legal disposition under the Criminal Code. The reasons are the rationale or justification for the order.

The formal written order is issued within one week of the hearing. Reasons are issued later.

The Review Board's decision in a particular case is the decision of the majority of the panel. Where a member dissents from the majority, it is noted in the reasons.

Orders are public unless an order has been made restricting public access. To request a copy of a decision or reasons, contact the Review Board Administrator.


Rules of Practice and Procedure

The procedure for disposition hearings of Review Boards is set out in Section 672.5 of the Criminal Code, and all Review Boards, including the Manitoba Review Board, must follow the processes, procedures and requirements in the Criminal Code.

Section 672.5(2) of the Criminal Code provides that the hearing may be conducted in as informal a manner as is appropriate in the circumstances.

The Manitoba Review Board has adopted Rules of Practice and Procedure. Anyone appearing before the Review Board should consult the Rules.

The Rules of Practice and Procedure for the Review Board process can be found here.