CRM 3311 Chapter Notes - Chapter 18: Insanity Defense, Endangerment
25 Nov 2018
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(18) Controversies Concerning the Canadian Not Criminally Responsible Reform
Act (Lacroix et al., 2017)
History of the Review Board System
• In Swain, the SCC ruled that the automatic detention of an insanity acquittee
violates Section Nine of the Canadian Charter of Rights and Freedoms. (45)
o Before Swain, the safety of the public was placed ahead of the liberty of
the insanity acquittee. A person found not guilty by reason of insanity
(NGRI) before Swain could be held in detention indefinitely at the
pleasure of the Lieutenant Governor. (45)
• Individuals found either unfit to stand trial or NCRMD fall under the dispositional
control of the Provincial or Territorial Review Board (RB) in the jurisdiction of
the committed offense. (45)
o The RB must hear a case within 45 days (which may be extended to 90
days) from the initial NCRMD verdict. (45)
o The RB of every province is composed of at least 5 members. (45)
o RBs hear evidence in the form of a psychiatric report that includes detailed
information on the individual’s background, offense information, clinical
status, and risk assessment. Victims also have the right to file victim
impact statements with the RB for the hearing. (45)
o The RB has the ability to make one of three dispositions: absolute
discharge (released with no restrictions), conditional discharge (released
with conditions), or custodial detention (detained in hospital). (45)
▪ Individuals who are determined not to pose a significant threat to
the public must receive absolute discharges. If there is a
determination that there is a significant threat, the NCRMD-
accused individual receives either a conditional discharge or
custodial detention. (45)
o The dispositions of these individuals were reviewed, at least annually, by
the RB. (45)
Cause for Change
• Numerous misperceptions held by the public include the belief that NCRMD
accused are soon released from custody once adjudicated NCRMD, that the
defense is overused, and that those who use the defense are usually faking their
condition. These misperceptions propagate the idea that dangerous offenders with
disordered thinking are absolved of their crimes, are free to walk the streets, and
essentially “get off.” The insanity defense is not in keeping with publicly held
values of punishment, retribution, and an overall “culture of punishment” in
today’s society. (45)
Bill C-14
• Replaces the “least onerous and least restrictive” provision of the previous version
with “necessary and appropriate.” It further codifies that the RB must make the
“safety of the public” the “paramount consideration” in making disposition
decisions. (47)
Document Summary
(18) controversies concerning the canadian not criminally responsible reform. A person found not guilty by reason of insanity (ngri) before swain could be held in detention indefinitely at the pleasure of the lieutenant governor. (45) Individuals who are determined not to pose a significant threat to the public must receive absolute discharges. If there is a determination that there is a significant threat, the ncrmd- accused individual receives either a conditional discharge or custodial detention. (45: the dispositions of these individuals were reviewed, at least annually, by the rb. (45) Bill c-14: replaces the least onerous and least restrictive provision of the previous version with necessary and appropriate. it further codifies that the rb must make the. Controversy: the measures in bill c-14 will deter defendants from availing themselves of the. Increasing the length of time between rb hearings is also seen as punitive. (46: these persons may instead opt to be tried in a regular prosecutorial manner.
