The Review Board Systems in Canada: An Overview of Results from the Mentally Disordered Accused Data Collection Study

3. Results (cont'd)

3. Results (cont'd)

3.6 Review Board Dispositions

The most common disposition among both NCRMD and UST accused during the initial Review Board hearing was detention, which was ordered in approximately half of all cases. However, NCRMD accused were much more likely to remain within the Review Board system after the initial hearing than accused found UST. This is likely due to the fact that UST accused are often mandated into treatment for sixty days between the court finding of UST and the Review Board hearing under section 672.58 of the Criminal Code. Once an accused found UST has been treated and/or medicated, he or she is often found legally fit to stand trial.

Table 14 – Legal status (ncrmd/ust) by initial disposition
Disposition NCRMD N (column %) UST N (column %) TOTAL N (column %)
Absolute discharge 852 (12.5%) N/A 852 (9.8%)
Conditional discharge 2,372 (34.9%) 173 (9.2%) 2,545 (29.3%)
Detention 3,514 (51.7%) 909 (48.4%) 4,423 (51.0%)
Fitness determination N/A 751 (40.0%) 751 (8.7%)
Other dispositions 64 (0.9%) 44 (2.3%) 107 (1.2%)
TOTAL 6,802 (78.4%) 1,877 (21.6%) 8,679 (100%)
  • Other dispositions include cases where the charges were withdrawn or stayed, cases that were transferred to another province, or cases where the accused died.
  • Fitness determination indicates that the accused was returned to court and found fit to stand trial prior to a disposition.
  • N/A = not applicable as NCRMD cases cannot be found fit and UST cases cannot be given an absolute discharge.
  • Percentages may not always total 100% due to rounding error.
  • Totals may not be exact due to the rounding of the weighted data.

If absolute discharges, fitness determinations and "other dispositions" are combined, approximately one in five cases appearing before Review Boards were released upon an initial hearing. When examining the cases that were not released upon an initial hearing, UST accused were much more likely to be given a detention order compared to NCRMD accused. Approximately 60% of NCRMD cases that were not given an absolute discharge were detained while almost 85% of UST cases that were not found fit were detained. Therefore, it appears that UST accused who remain in the Review Board system after an initial hearing are assessed as posing a greater risk than NCRMD accused who remain in the system after an initial hearing. This may be a result of the differences in diagnosis and most serious charge between UST and NCRMD cases. Compared to accused with a finding of NCRMD, accused found UST are more likely to be accused of a sexual offence and suffer from a more permanent mental disorder (e.g., mental retardation, organic brain disorders).

Table 15 describes the conditions imposed on NCRMD/UST cases that were given a conditional discharge at the initial hearing. Generally, almost all accused are directed to live in a particular location and most are mandated to take medication and/or treatment. There are several significant differences, however, between the conditions imposed in NCRMD cases and those imposed in UST cases. For example, NCRMD cases are more likely to have medication/treatment mandated and to have alcohol and/or drug restrictions imposed while UST cases are more likely to have reporting conditions, non-communication conditions with victims and others (e.g., children) and living restrictions wherein the UST accused must live with a particular person (e.g., parent). Again, this is likely due to the differences in diagnoses and offending behaviour among UST accused.

Table 15 – legal status (ncrmd/ust) by conditions imposed at initial hearing
Condition NCRMD N (%) UST N (%) TOTAL N (%)
Live in a particular location (e.g. group home) 2,147 (95.4%) 152 (89.4%) 2,298 (94.9%)
Mandated medication/treatment 1,632 (72.5%) 93 (54.6%) 1,725 (71.2%)
Alcohol/drug restrictions 1,173 (52.1%) 38 (22.4%) 1,211 (50.0%
Weapons restrictions 563 (25.0%) 41 (24.1%) 604 (24.9%)
Reporting requirements (e.g., weekly) 445 (19.8%) 61 (35.6%) 506 (20.9%)
Attend assessment for treatment/counselling 370 (16.4%) 43 (25.4%) 413 (17.1%)
Non–communication with victim 254 (11.3%) 38 (22.2%) 292 (12.0%)
Banned from a particular location 143 (6.4%) 10 (6.2%) 154 ( 6.4%)
General mobility restrictions (e.g., curfew) 95 (4.2%) 12 (7.4%) 107 (4.4%)
Non–communication with others (e.g., children) 68 (3.0%) 29 (17.3%) 98 (4.0%)
Administrative conditions 87 (3.8%) 11 ( 6.4%) 97 (4.0%)
Transportation restrictions (e.g., driving, taking the bus) 54 (2.4%) 4 (2.5%) 59 (2.4%)
Live with a particular person (e.g., parent) 23 (1.0%) 35 (20.5%) 58 ( 2.4%)
Imposed custody 30 (1.3%) 6 (3.7%) 36 ( 1.5%)
Attend school/work 3 (0.1%) 5 (3.1%) 8 (0.3%)
  • Includes all cases that received a conditional discharge on their initial hearing.
  • Administrative conditions includes requirements to disclose psychiatric records or changes in medication to the Review Board, to allow forensic teams to conduct home visits, and to be in possession of Review Board dispositions at all times.
  • Percentages do not total 100% as accused typically received more than one condition.
  • Totals may not be exact due to the rounding of the weighted data.

Observations of the operations of Review Boards indicate that when discussing the conditions related to living in a particular location (e.g. group home), Review Board members consider the rules, regulations and operating procedures of the program or facility. Thus, when this condition is applied, the Review Board may not feel it necessary to impose other conditions that mirror those of the program or facility, such as curfew, alcohol and/or drug restrictions, reporting conditions, and weapon restrictions.

Table 16 – original disposition by offence type
Disposition Violent N (column %) Sexual N (column%) Non-Violent N (column %)
Absolute Discharge 497 (7.9%) 47 (9.6%) 308 (16.4%)
Conditional Discharge 1,925 (30.6%) 150 (30.5%) 470 (24.9%)
Detention 3,394 (53.9%) 226 (45.9%) 803 (42.6%)
Fitness Determination 402 (6.4%) 67 (13.6%) 282 (15.0%)
Other dispositions 84 (1.3%) 2 (0.4%) 22 (1.2%)
  • Other dispositions include cases where the charges were withdrawn or stayed, cases that were transferred to another province, or cases where the accused died.
  • Fitness determination indicates that the accused was returned to court and found fit to stand trial prior to a disposition.
  • Percentages may not always total 100% due to rounding error.

Review Board dispositions also varied according to the most serious offence for which the accused was charged. For example, in Table 16, it can be seen that non–violent offences were more likely to receive an absolute discharge compared to violent or sexual offences. In addition, violent offences were more likely to receive detention compared to sexual or non-violent offences.

The conditions imposed on NCRMD/UST accused also seem to vary in Table 17 according to the type of offence. Although accused charged with sexual offences were much less likely to be mandated to take treatment or medication compared to accused charged with violent or non-violent offences, they were much more likely to be ordered to attend an assessment for treatment/counselling. In fact, they were at least twice as likely as violent or non-violent accused to have every other condition attached to their conditional discharge with the exception of "administrative conditions". It is clear that those accused charged with sexual offences are generally more closely controlled by the Review Boards.

Table 17 – offence type by conditions imposed at initial hearing

As indicated in Table 18, the diagnoses of the accused also appeared to impact on Review Board dispositions. Those accused who had been diagnosed with an affective disorder or a substance abuse disorder were much more likely to receive an absolute discharge compared to accused diagnosed with schizophrenia, mental retardation, delusional disorders and organic brain disorders. Those accused who had been diagnosed with schizophrenia, a personality disorder or an organic brain disorder were more likely than others to receive a detention order.

Table 18 – primary diagnoses by original disposition

Generally speaking, of the two largest categories of primary diagnosis in Table 19 – schizophrenia and affective disorders – it appears that accused with a diagnosis of schizophrenia have a more narrow breadth of conditions imposed than do those diagnosed with an affective disorder. Patterns amongst the other diagnosis categories are from smaller samples and are harder to judge. However, those diagnosed with an organic brain disorder also appear to have a relatively wide breadth of conditions imposed.

The condition to reside in a particular location is usually applied in at least 95% of cases. However, those whose primary diagnosis is organic brain disorder (87.5%) or a delusion disorder (91.9%), are slightly less likely to have this condition imposed. This observation must be balanced with the view that 12.5% of those with organic brain disorder have imposed custody as a condition, and 6.9% have a condition imposed that they must live with a particular person. In 8.1% of cases, accused with a primary diagnosis of a delusional disorder must live with a particular person as a condition. Along a similar vein, the condition to live with a particular person was imposed most often in cases where the primary diagnosis was mental retardation (13.4%). Thus, restrictions on living situation is recorded as a condition in virtually all cases.

As can be expected, 100% of patients with a primary diagnosis of substance abuse had alcohol or drug restrictions placed upon them, while only about a quarter of patients with a primary diagnosis of mental retardation or delusional disorder had a similar restriction.

Table 19 – primary diagnoses by conditions imposed at initial hearing

Given the interpretation of section 672.54 by the Supreme Court of Canada in R. v. Winko (i.e., the court or Review Board must order an absolute discharge if the accused does not pose a significant threat to the safety of the public), it was anticipated that the dispositions given to NCRMD accused would change after 1999. Table 20 provides a pre- and post-Winko analysis of Review Board dispositions for accused deemed NCRMD.

Table 20 – pre/post winko analysis of ncrmd dispositions
Disposition Pre-Winko N (column %) Post-Winko N (column%)
Absolute discharge 361 (10.0%) 491 (15.3%)
Conditional discharge 1,184 (32.9%) 1,188 (37.1%)
Detention 2,016 (56.0%) 1,498 (46.8%)
Other dispositions 41 (1.1%) 23 (0.7%)
Total 3,602 (100%) 3,200 (100%)
  • Other dispositions include cases where the charges were withdrawn or stayed, cases that were transferred to another province, or cases where the accused died.
  • Percentages may not always total 100% due to rounding error.
  • Pre-Winko refers to cases disposed prior to the year 2000 and post-Winko refers to cases disposed after 1999.

There was an observable change in the way in which Review Boards disposed of NCRMD cases after the Winko decision. Absolute discharges increased from 10% of cases up to 15% of cases, conditional discharges increased from 33% of cases up to 37% of cases, and detention orders decreased from 56% of cases down to 47% of cases. In other words, it was clear that Review Boards were drafting less onerous dispositions for NCRMD cases after the Winko decision.

Table 21 contains a pre–and post–Winko analysis of conditions imposed at the initial Review Board hearing. There were some noticeable differences. First, mandated treatment was a condition more often imposed after the Winko decision. However, this difference could be due to changes made to the Criminal Code in 1997. Originally, section 672.55 prohibited Review Boards from ordering psychiatric or other treatment as a condition of a disposition. However, after the amendment in 1997, Review Boards were able to attach a condition whereby the accused must adhere to psychiatric or other treatments when the accused has consented to the condition. Second, conditions in general were imposed less often after Winko including weapons restrictions, reporting requirements, non–communication conditions, administration conditions and transportation conditions. Of particular importance was the fact that custody was never imposed as a condition of a conditional discharge after Winko.

Table 21 – pre/post winko analysis of conditions imposed at initial hearing
Condition Pre–Winko N (%) Post-Winko N (%)
Live in a particular location (e.g. group home) 1126 (93.4%) 1172 (96.5%)
Mandated medication/treatment 749 (62.1%) 976 (80.3%)
Alcohol/drug restrictions 572 (47.4%) 639 (52.6%)
Weapons restrictions 407 (33.7%) 197 (16.2%)
Reporting requirements (e.g., weekly) 420 (34.8%) 86 (7.1%)
Attend assessment for treatment/counselling 271 (22.5%) 142 (11.7%)
Non-communication with victim 188 (15.6%) 103 (8.5%)
Banned from a particular location 93 (7.7%) 61 (5.0%)
General mobility restrictions (e.g., curfew) 71 (5.9%) 36 (3.0%)
Non-communication with others (e.g., children) 67 (5.6%) 31 (2.5%)
Administrative conditions 80 (6.7%) 17 (1.4%)
Transportation restrictions (e.g., driving, taking the bus) 59 (4.9%) 0 (0.0%)
Live with a particular person (e.g., parent) 52 (4.3%) 6 (0.5%)
Imposed custody 35 (2.9%) 0 (0.0%)
Attend school/work 5 (0.4%) 3 (0.3%)
  • Includes all cases that received a conditional discharge on their initial hearing.
  • Administrative conditions include requirements to disclose psychiatric records or changes in medication to the Review Board, to allow forensic teams to conduct home visits, and to be in possession of Review Board dispositions at all times.
  • Pre-Winko refers to cases disposed prior to the year 2000 and post-Winko refers to cases disposed after 1999.
  • Percentages do not total 100% as accused typically received more than one condition.
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