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Criminal - NCR - General (2). Ontario (Attorney General) v. G. [CCC Part XX.1]
In Ontario (Attorney General) v. G. (SCC, 2020) the Supreme Court of Canada summarizes aspects of CCC Part XX.1 ['Mental Disorder'], which applies to those who "are exempt from criminal responsibility and receive a verdict of NCRMD by virtue of ss. 16(1) and 672.34 ...":V. Criminal Code, Part XX.1
[33] Part XX.1 of the Criminal Code sets out the “assessment‑treatment system” that applies to persons who are exempt from criminal responsibility and receive a verdict of NCRMD by virtue of ss. 16(1) and 672.34 (Winko, at para. 16). Part XX.1 provides for the establishment of provincial review boards, with the responsibility to hold hearings to determine whether to grant persons found NCRMD conditional or absolute discharges under s. 672.54.[1]
[34] In Winko, at para. 20, this Court described the purposes of Part XX.1, a scheme founded on the “twin goals of fair treatment [for those found NCRMD] and public safety”:... the purpose of Part XX.1 is to replace the common law regime for the treatment of those who offend while mentally ill with a new approach emphasizing individualized assessment and the provision of opportunities for appropriate treatment. . . . [The NCRMD finding] triggers a balanced assessment of the offender’s possible dangerousness and of what treatment‑associated measures are required to offset it. Throughout the process the offender is to be treated with dignity and accorded the maximum liberty compatible with Part XX.1’s goals of public protection and fairness to the NCR accused. [para. 43] [35] Following a disposition or review hearing, a review board may order an absolute discharge, a conditional discharge, or a hospital detention (s. 672.54). In arriving at a disposition that is “necessary and appropriate in the circumstances”, review boards must take into account the safety of the public, along with the mental condition of the person found NCRMD, their reintegration into society, and their other needs (s. 672.54). Conditions relating to treatment may only be included in a disposition if the accused consents to the condition (s. 672.55).
[36] In general, disposition hearings are held within 45 days of an NCRMD verdict, and disposition review hearings are held no more than 12 months after the most recent disposition or disposition review hearing (ss. 672.47 and 672.81).
[37] The review board must absolutely discharge any person found NCRMD unless it concludes, based on the evidence presented at the hearing, that the person poses a “significant risk of committing a serious criminal offence” (Winko, at para. 57; see also s. 672.54(a)). If the review board cannot make the required positive finding of significant risk, jurisdiction under Part XX.1 falls away — the criminal law cannot legitimately restrain that individual’s liberty any further (Winko, at para. 33).
[38] This constitutional imperative, coupled with the individualized review that the review board must undertake at least annually in every person’s case, illustrate Part XX.1’s rejection of “invidious” stereotypical notions that persons with mental illnesses are inherently dangerous (Winko, at paras. 35, 47 and 89). Risk cannot be assumed; it must be positively found. And it must be found based on evidence considered within an individualized assessment of a person’s circumstances.
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