An Act to amend the Criminal Code (mental disorder) and to make consequential amendments to other Acts (S.C. 2005, c. 22)
Full Document:
Assented to 2005-05-19
R.S., c. C-46CRIMINAL CODE
Marginal note:1991, c. 43, s. 4
15. Subsection 672.47(3) of the Act is replaced by the following:
Marginal note:Disposition made by court
(3) Where a court makes a disposition under section 672.54 other than an absolute discharge in respect of an accused, the Review Board shall, not later than ninety days after the disposition was made, hold a hearing and make a disposition in respect of the accused.
16. (1) Section 672.5 of the Act is amended by adding the following after subsection (5):
Marginal note:Notice
(5.1) At the victim's request, notice of the hearing and of the relevant provisions of the Act shall be given to the victim within the time and in the manner fixed by the rules of the court or Review Board.
Marginal note:1991, c. 43, s. 4
(1.1) The portion of subsection 672.5(8) of the Act before paragraph (a) is replaced by the following:
Marginal note:Assigning counsel
(8) If an accused is not represented by counsel, the court or Review Board shall, either before or at the time of the hearing, assign counsel to act for any accused
(2) Section 672.5 of the Act is amended by adding the following after subsection (13):
Marginal note:Adjournment
(13.1) The Review Board may adjourn the hearing for a period not exceeding thirty days if necessary for the purpose of ensuring that relevant information is available to permit it to make or review a disposition or for any other sufficient reason.
Marginal note:Determination of mental condition of the accused
(13.2) On receiving an assessment report, the court or Review Board shall determine whether, since the last time the disposition in respect of the accused was made or reviewed there has been any change in the mental condition of the accused that may provide grounds for the discharge of the accused under paragraph 672.54(a) or (b) and, if there has been such a change, the court or Review Board shall notify every victim of the offence that they are entitled to file a statement in accordance with subsection (14).
Marginal note:1999, c. 25, s. 11
(3) Subsection 672.5(16) of the Act is replaced by the following:
Marginal note:Presentation of victim statement
(15.1) The court or Review Board shall, at the request of a victim, permit the victim to read a statement prepared and filed in accordance with subsection (14), or to present the statement in any other manner that the court or Review Board considers appropriate, unless the court or Review Board is of the opinion that the reading or presentation of the statement would interfere with the proper administration of justice.
Marginal note:Inquiry by court or Review Board
(15.2) The court or Review Board shall, as soon as practicable after a verdict of not criminally responsible on account of mental disorder is rendered in respect of an offence and before making a disposition under section 672.45 or 672.47, inquire of the prosecutor or a victim of the offence, or any person representing a victim of the offence, whether the victim has been advised of the opportunity to prepare a statement referred to in subsection (14).
Marginal note:Adjournment
(15.3) On application of the prosecutor or a victim or of its own motion, the court or Review Board may adjourn the hearing held under section 672.45 or 672.47 to permit the victim to prepare a statement referred to in subsection (14) if the court or Review Board is satisfied that the adjournment would not interfere with the proper administration of justice.
Definition of “victim”
(16) In subsections (14) and (15.1) to (15.3), “victim” has the same meaning as in subsection 722(4).
17. The Act is amended by adding the following after section 672.5:
Marginal note:Order restricting publication — victims of sexual offences
672.501 (1) Where a Review Board holds a hearing referred to in section 672.5 in respect of an accused who has been declared not criminally responsible on account of mental disorder or unfit to stand trial for an offence referred to in subsection 486(3), the Review Board shall make an order directing that any information that could identify a victim, or a witness who is under the age of eighteen years, shall not be published in any document or broadcast or transmitted in any way.
Marginal note:Order restricting publication — child pornography
(2) Where a Review Board holds a hearing referred to in section 672.5 in respect of an accused who has been declared not criminally responsible on account of mental disorder or unfit to stand trial for an offence referred to in section 163.1, a Review Board shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of section 163.1, shall not be published in any document or broadcast or transmitted in any way.
Marginal note:Order restricting publication — other offences
(3) Where a Review Board holds a hearing referred to in section 672.5 in respect of an accused who has been declared not criminally responsible on account of mental disorder or unfit to stand trial for an offence other than the offences referred to in subsection (1) or (2), on application of the prosecutor, a victim or a witness, the Review Board may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the Review Board is satisfied that the order is necessary for the proper administration of justice.
Marginal note:Order restricting publication
(4) An order made under any of subsections (1) to (3) does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.
Marginal note:Application and notice
(5) An applicant for an order under subsection (3) shall
(a) apply in writing to the Review Board; and
(b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the Review Board specifies.
Marginal note:Grounds
(6) An applicant for an order under subsection (3) shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.
Marginal note:Hearing may be held
(7) The Review Board may hold a hearing to determine whether an order under subsection (3) should be made, and the hearing may be in private.
Marginal note:Factors to be considered
(8) In determining whether to make an order under subsection (3), the Review Board shall consider
(a) the right to a fair and public hearing;
(b) whether there is a real and substantial risk that the victim or witness would suffer significant harm if their identity were disclosed;
(c) whether the victim or witness needs the order for their security or to protect them from intimidation or retaliation;
(d) society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process;
(e) whether effective alternatives are available to protect the identity of the victim or witness;
(f) the salutary and deleterious effects of the proposed order;
(g) the impact of the proposed order on the freedom of expression of those affected by it; and
(h) any other factor that the Review Board considers relevant.
Marginal note:Conditions
(9) An order made under subsection (3) may be subject to any conditions that the Review Board thinks fit.
Marginal note:Publication of application prohibited
(10) Unless the Review Board refuses to make an order under subsection (3), no person shall publish in any document or broadcast or transmit in any way
(a) the contents of an application;
(b) any evidence taken, information given or submissions made at a hearing under subsection (7); or
(c) any other information that could identify the person to whom the application relates as a victim or witness in the proceedings.
Marginal note:Offence
(11) Every person who fails to comply with an order made under any of subsections (1) to (3) is guilty of an offence punishable on summary conviction.
Marginal note:Application of order
(12) For greater certainty, an order referred to in subsection (11) also prohibits, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim or witness whose identity is protected by the order.
Marginal note:1991, c. 43, s. 4
18. The portion of subsection 672.51(11) of the Act before paragraph (a) is replaced by the following:
Marginal note:Prohibition on publication
(11) No person shall publish in any document or broadcast or transmit in any way
Marginal note:1991, c. 43, s. 4
19. Subsection 672.52(2) of the Act is replaced by the following:
Marginal note:Transmittal of transcript to Review Board
(2) If a court holds a disposition hearing under subsection 672.45(1), whether or not it makes a disposition, it shall send without delay to the Review Board that has jurisdiction in respect of the matter, in original or copied form, a transcript of the hearing, any other document or information related to the hearing, and all exhibits filed with it, if the transcript, document, information or exhibits are in its possession.
Marginal note:1991, c. 43, s. 4
20. The portion of section 672.54 of the Act before paragraph (a) is replaced by the following:
Marginal note:Dispositions that may be made
672.54 Where a court or Review Board makes a disposition under subsection 672.45(2) or section 672.47 or 672.83, it shall, taking into consideration the need to protect the public from dangerous persons, the mental condition of the accused, the reintegration of the accused into society and the other needs of the accused, make one of the following dispositions that is the least onerous and least restrictive to the accused:
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