This text concludes a series of four texts seeking to demystify the law and judicial practices relating to mental health. It shines the spotlight on the workings of the review board.
The provisions of the Criminal Code are intended not to punish persons who, because of mental disorder, cannot present a defense or incur criminal liability. They aim to strike a balance between the protection of society and the rights of data subjects.
The criminal law provides two mechanisms in mental health. The first concerns accused persons who are unfit to stand trial because, due to mental illness, they are unable to assume their defense or mandate their lawyer. Unfitness to stand trial leads to stay of proceedings pending return of fitness; it can lead to the discontinuance of proceedings if it is permanent. The second mechanism concerns people who, at the time of committing an offence, were unable to distinguish right from wrong due to mental disorders. Not having had the intention to commit the offence, their criminal responsibility cannot be engaged.
The administrative follow-up of the examination committee
In the absence of a guilty verdict, persons unfit to stand trial and not criminally responsible on account of mental disorder cannot receive a sentence. Persons deemed unfit to stand trial may be subject to hospital detention or conditional release. As for those found not criminally responsible, they can also be released unconditionally. The decision depends on the risk they pose to public safety, which is the overriding factor and which must be important, along with their mental state, social rehabilitation and other needs.
These measures are administrative in nature: they are not linked to the offence, but rather to the situation of the persons, which is assessed every twelve months by the Review Board, a specialized administrative tribunal which sits in formation of three commissioners. — lawyer, psychiatrist and social worker or psychologist. The commission renders its decision following a hearing during which the psychiatrist treating the person concerned presents his or her risk assessment and makes recommendations. The decision is implemented in the hospital environment, by the treating team.
Quebec specificities
Unlike the other provinces where the review boards are made up of members who are specialists in the field of mental health, Quebec has chosen to create its own within the Administrative Tribunal of Quebec, responsible for settling disputes between state bodies and citizens. Apart from the psychiatrists, the other commissioners do not necessarily have expertise in the field and they sit on other types of files, which calls into question the real specialization of the commission.
The number of people monitored by the Quebec Review Board is steadily increasing. In 2022, there were 1962. In comparison, 1653 and 268 people were followed by the Ontario and British Columbia commissions. This situation can be explained in particular by a higher number of verdicts of not criminally responsible in Quebec than elsewhere. Violent crimes represent 6% of not-at-fault verdicts in Quebec, 10% in British Columbia and 15% in Ontario.
In Quebec, Review Board hearings last an hour on average and it is not uncommon for the psychiatric report, the main evidence in the file, to be available only at the time of the hearing, leaving little time for persons concerned and their lawyers to become acquainted with it. If the persons concerned are most often present, only 65% of them are represented by a lawyer, a proportion exceeding 95% in Ontario and British Columbia.
The decisions of the Quebec Review Board are consistent with the recommendations of psychiatrists in 83.5% of cases; they are more restrictive in 10% of files. Research shows that, for equal offences, people found not criminally responsible are detained three times more often, and for longer periods, than convicted people. In Quebec, the average time spent under the authority of the Review Board is seven years.
Compared to the decisions of the Ontario and British Columbia commissions, the decisions of the Quebec Review Board are less legally argued and rarely refer to the decisions of the Court of Appeal or the Supreme Court of Canada. Similarly, only 2% of Quebec decisions have been appealed in recent years, the proportion being 16% in Ontario and British Columbia.
However, the appeal is an essential recourse when fundamental rights are at stake, as demonstrated by the debates of a constitutional nature and the changes in practice that the decisions of the Court of Appeal for Ontario have brought about. These disturbing findings call into question the seriousness given to the practice of mental health law in Quebec, in a context where the volume of legal cases continues to increase and where services continue to decline.