The role and powers of forensic psychiatric Review Boards in Canada: recent developments.

I. Introduction: Overview of the Law of Forensic Psychiatry The law of forensic psychiatry deals with the criminal justice system's response to criminal conduct caused by mental disorder. In 1992, Canada wholly rewrote its forensic psychiatry law. Parliament enacted a new Part XX.1 of the Criminal Code of Canada, titled Disorder, which provides a detailed code governing the forensic psychiatric system. The principal reform accomplished by Part XX.1 was the creation of a system of forensic Review Boards in each province. The Boards assumed the role previously played by provincial Cabinets in determining the custodial status of forensic patients. Part XX.1 established the Review Boards as quasi-judicial tribunals which would afford all parties, including the accused, a full panoply of procedural justice rights. The Review Boards overnight became significant players in the lives of forensic patients, and in the professional lives of treatment personnel charged with providing therapeutic services to patients. This represented a quiet revolution in this relatively discreet, yet important world where criminal justice and mental health services meet. The new system began with trepidation on all sides. Would it adequately protect public safety with respect to those few individuals who present a serious risk owing to serious mental disorder? Would the Review Boards assert a genuine independence from executive government and from the therapeutic community and be willing to find in favour of patients with respect to issues of release into the community? Would the legalization of the decision-making process interfere with efficient psychiatric treatment, including by imposing an adversarial relationship between patients and therapists? (1) Would the new law succeed in balancing the twin goals of a forensic justice system, as later identified by the Chief Justice of Canada?: Justice requires that [not criminally responsible by reason of mental disorder] accused be accorded as much liberty as is compatible with public safety. The difficulty lies in devising a rule and a system that permits this to be accomplished in each individual's case. (2) Given these questions, Parliament inserted into the 1992 legislation a clause requiring a parliamentary review of Part XX.1 ten years following its passage. The required review took place between 2002 and May 19, 2005, when a package of amendments to Part XX.1 were passed and proclaimed into law. (3) Several months later, the Supreme Court of Canada rendered a decision in Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services). (4) The combined effect of the legislative amendments and the Mazzei decision is to reinforce the predominant role of the Review Boards in the forensic system. This article provides an overview of these developments and their significance. A. The Defence of Mental Disorder Substantive Canadian criminal law adopted the British approach to individuals found to lack the mental element necessary for conviction due to illness or disability rendering them unable to comprehend the nature of their actions. This was formulated in the M'Naghten (5) rules governing the defence of not guilty by reason of insanity [NGRI], incorporated into section 16 of the Criminal Code. Prior to 1992, the Criminal Code concerned itself with little other than the bare basis for the NGRI disposition. The Code provided that once acquitted on the basis of insanity, the accused person was automatically detained at the pleasure of the Lieutenant Governor, acting on the advice of the Cabinet of the province. (6) The Code said nothing further about how executive government was to carry out this responsibility, nor whether forensic patients could challenge their ongoing detention. In the 1970s, several provinces enacted forensic psychiatry statutes to govern procedural and treatment issues in the system. …

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