Type of document: Prosecution Directive
Effective date: November 14, 2017

An accused found either unfit to stand trial or not criminally responsible becomes subject to a comprehensive statutory process that determines when and under what conditions the accused person may be returned to the community. The process is aimed at protecting the public and treating the accused’s mental illness. In Ontario, the Ontario Review Board (ORB) generally makes these decisions.

Ontario Review Board (ORB)

Once a person is found unfit to stand trial or not criminally responsible the court may hold a disposition hearing or refer the matter directly to the ORB. The ORB is an independent specialized provincial tribunal with jurisdiction to make and review dispositions whose members are appointed by the lieutenant governor in council. The ORB consists of legal, medical and lay members. Its mandate is to make and review orders referred to as “dispositions” in respect of accused persons found unfit to stand trial or not criminally responsible. A “disposition” determines the terms and conditions of an accused’s supervision by a psychiatric hospital and the accused’s return to the community. The ORB has a legal duty to seek out all evidence it believes is necessary to make its decision and must treat public safety as the paramount factor of consideration.

The Criminal Code sets out timelines for when disposition hearings shall occur following a verdict of unfit to stand trial or not criminally responsible. The Attorney General is a party to the disposition hearings, and any appeals, and is represented by a Prosecutor.

The court or the ORB may conduct the initial disposition hearing. Thereafter and until the accused is absolutely discharged, the ORB conducts the annual disposition hearings.

In serious, lengthy and complex cases, the Prosecutor with carriage of the trial should when feasible attend the initial disposition hearing.

Appointment of counsel

Where an unrepresented accused has been found unfit to stand trial or it is otherwise in the interests of justice, the court or ORB shall assign counsel to act for the accused either before or at the time of the hearing.

Victim notification

The ORB is required to notify victims whenever a psychiatric assessment indicates a change in mental status of the accused that could provide grounds for an absolute or conditional discharge. The victim is also required to be notified, upon request, of any ORB hearing, any disposition of an ORB hearing and any escape of the accused from custody.

The victim is permitted to submit a Victim Impact Statement at any disposition hearing or a review of disposition order.

It is important that victims appreciate the process and purpose of the ORB. The Prosecutor should ensure that victims are informed of available victim services as facilitated by the Victim/Witness Assistance Program (V/WAP) or similar victim support services.

Reference should be made to the Victims Directive.

Not Criminally Responsible (NCR) disposition hearings

A verdict of not criminally responsible triggers an administrative process that is aimed at protecting the public and treating the accused’s mental illness. This process involves regular disposition hearings to determine what further control over the accused is required. Public safety is always the paramount factor of consideration. An accused found not criminally responsible is subject to a period of indefinite detention regardless of how minor or serious the alleged offence. The gravity of the offence does not determine how long an accused remains under the control of the ORB. The ORB also considers the mental condition of the accused and the reintegration of the accused into society.

The following three dispositions are available at the initial disposition hearing and/or the annual disposition hearing for an accused who is not criminally responsible:

  1. absolute discharge – where an NCR accused is found not to be a significant threat to the safety of the public, the person is no longer under the jurisdiction of the ORB and not subject to any conditions.
  2. conditional discharge – where an accused is discharged from the hospital and given conditions to do (or not do) certain things. An accused on a conditional discharge cannot be forced to return and remain at the hospital unless the hospital applies to the ORB to conduct a new disposition hearing.
  3. hospital detention order – where an accused is under the supervision of the hospital with conditions to do (or not do) certain things. An accused may reside at the hospital or in the community with the permission of the hospital. An accused on a hospital detention order is required to return to the hospital upon the request of the hospital.

Unfit disposition hearings

The trial of an accused found “unfit to stand trial” cannot proceed until they become fit to stand trial or until the charges are terminated in court by a stay of proceedings, a withdrawal of the charges or an acquittal. The Criminal Code requires that disposition hearings be conducted to determine where and under what conditions an accused should be held who is found “unfit to stand trial”.

The following findings are available at the initial disposition hearing and/or the annual disposition hearing for an accused that is unfit to stand trial:

  1. fit to stand trial – the accused shall be sent back to court where the court will determine if the accused is fit to stand trial. If the accused is fit to stand trial, the trial may proceed.
  2. unfit to stand trial – the accused can receive a disposition of either a conditional discharge or a Hospital Detention Order.
  3. permanently unfit to stand trial – if the permanently unfit accused is determined not to pose a significant threat to society and it is in the interests of the proper administration of justice, a court may enter a stay of proceedings. Otherwise, the accused can receive a disposition of either a conditional discharge or a Hospital Detention Order.

Once the Review Board is of the opinion that the accused has returned to a fit state, the accused is returned to court. The court will hold another fitness hearing to determine the issue of fitness. If the court determines that the accused is fit to stand trial, the trial will recommence. The Prosecutor must notify the Ontario Review Board that the accused has been found fit to stand trial.

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