canada’s new mental disorder disposition provisions:: a case study of the british columbia...

International Journal of Law and Psychiatry, Vol. 20, No. 4, pp. 419–443, 1997Copyright © 1997 Elsevier Science LtdPrinted in the USA. All rights reserved

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419

Canada’s New Mental DisorderDisposition Provisions:

A Case Study of the British Columbia Criminal CodeReview Board

Isabel Grant*

Introduction

Canada has had an insanity defence for over one hundred years but, until re-cently, there have been very few sensational cases arousing public concern.The mental disorder provisions of the

Criminal Code

underwent major revi-sions in 1992 to bring them in line with the

Canadian Charter of Rights andFreedoms

.

1

Those changes have made the defence potentially more attractiveto some accused persons because of the new flexibility in the disposition op-tions. The new provisions have come under increasing public scrutiny recentlyin light of three prominent cases involving the defence. In May 1996, DorothyJoudrie was found not criminally responsible on account of mental disorderfor the attempted murder of her husband.

2

In June 1996, Andre Dallaire wasfound not criminally responsible for the attempted murder of Prime MinisterJean Chrétien.

3

On August 2, 1996, 14-year-old Sandy Charles was found not

*Associate Professor, The University of British Columbia

Address correspondence and reprint requests to I. Grant, Faculty of Law, 1822 East Mall, Vancouver,B.C. V6T121 Canada.

I would like to thank Mr. Norman Prelypchan, former Chair of the British Columbia Criminal Code ReviewBoard, who made the Board’s decisions available to me and Mr. William Enwright for his help throughout theproject. I would also like to thank Debra Parkes for her research assistance and help with coding the data andDr. James Ogloff of Simon Fraser University who provided useful comments on an earlier draft of this paper.Special thanks to Dr. Masaru Kohno, U.B.C. Political Science, who assisted with the statistical analysis andmade many helpful comments. The views expressed and any mistakes are, of course, my own.

1

Part 1 of the

Constitution Act, 1982

, being Schedule B of the

Canada Act 1982 (U.K.)

, 1982, c. 11,hereinafter the

Charter

.

2

Joudrie, who shot her estranged husband six times with a semi-automatic handgun, raised the defenceof sane automatism, which, if successful, would have resulted in an absolute acquittal. The jury brought in afinding of not criminally responsible on account of mental disorder (n.c.r.m.d.), a verdict that might bedescribed as a compromise between conviction and acquittal.

3

The Globe and Mail

(June 29, 1996) at A-1 and A-3.

420 I. GRANT

criminally responsible for the brutal murder of a seven-year-old boy.

4

Con-flicting headlines about the various cases fostered public confusion on the na-ture of the verdict. The headline in

The Globe and Mail

following the Joudrieverdict proclaimed “Joudrie cleared in attack,”

5

mistakenly giving the impres-sion that the mental disorder defence exonerates an accused completely andhas no legal consequences.

6

In the Daillaire case, by contrast, the media re-ported the verdict as “guilty but not criminally responsible,” a verdict notknown in Canadian law.

7

This paper will attempt to shed light on what actually happens to personsfound not criminally responsible. The paper examines, as a case study, the dis-position decisions of one provincial Review Board for those found not crimi-nally responsible on account of mental disorder. The paper begins with a briefreview of the Canadian law prior to the 1992 amendments and the seminal de-cision in

R. v. Swain

,

8

which ultimately forced the federal government of Can-ada to enact the new provisions. It then summarizes the most importantchanges made in 1992, focusing on the disposition provisions and what thesechanges mean for individuals found not responsible. The paper then presentsa description of all the initial dispositions of the British Columbia ReviewBoard for persons found not criminally responsible during the two and a halfyears immediately following the amendments.

The Situation Prior to 1992

Prior to 1992, an individual found “not guilty by reason of insanity” (n.g.r.i)for a criminal offence would be ordered held in strict custody at the pleasureof the lieutenant governor of the province. Detention in a strict-custody psy-chiatric facility was mandatory; the trial judge had no discretion to considerother dispositions. This was the case even though a successful insanity defenceestablished mental illness at the time of the offence but said nothing about theaccused’s mental state at the time of trial.

The most comprehensive study of persons found not guilty by reason of in-sanity under Canada’s previous system

9

revealed that such individuals wereoften held in custody longer than if they had been convicted of the substantiveoffence charged. The average time in hospital across Canada was 53 monthsand the average time on warrant for n.g.r.i. accused was 80.9 months.

Under the old regime, provinces could set up an advisory review board thatwould make recommendations to the lieutenant governor as to the vacating of

4

See, for example,

The Globe and Mail

(June 20, 1996) at A-6 and (June 25, 1996) at A-3. Charles wasfound not responsible by a judge sitting alone on August 2, 1996.

The Vancouver Sun

(August 3, 1996) at A-5.

5

May 10, 1996, at A-1.

6

This is particularly telling given that Joudrie was ultimately ordered held in custody by the

CriminalCode

Review Board in Alberta. She has since been granted a conditional discharge.

7

Supra

, note 3. This confusion probably stemmed from the fact that the trial judge held that thedefendant had committed the elements of attempted murder but that he was not criminally responsible.

8

[1991] 1 S.C.R. 933.

9

Sheilagh Hodgins, Christopher Webster, & Jean Paquet,

Annual Report Year 3 Canadian Database:Patients Held on Lieutenant Governors’ Warrants

(1991). (Hereinafter cited as Webster).

CANADA’S MENTAL DISORDER DISPOSITION PROVISIONS 421

warrants. The

Criminal Code

, however, contained no criteria on which suchdecisions were to be made and only general administrative law principles re-lating to advisory tribunals governed its procedures. Board recommendations,while generally followed, were not binding on the lieutenant governor.

In fact, the release process was generally seen as being politically driven,with decisions made by elected politicians. It is notable in this regard that, intheir study of persons on warrant, Webster found that the only statistically sig-nificant predictor of length of time in custody was the severity of the offencewith which an accused had been charged, suggesting a punitive component torelease decisions.

10

Because a finding of n.g.r.i. could result in long periods of indeterminatecustody in a strict-custody psychiatric facility, it was generally felt that onlythose charged with serious offences had an incentive to raise the insanity de-fence. For less serious offences, a guilty verdict with a short period of impris-onment might be more attractive to some mentally ill offenders.

11

R. v. Swain

In 1991, in

Swain

,

12

the Supreme Court of Canada held that s. 542(2) of the

Criminal Code

, which provided for automatic detention in a strict-custodypsychiatric facility for those found n.g.r.i., was unconstitutional. The provisionwas found to violate s. 7 of the

Charter

because it deprived an accused of lib-erty without a hearing as to his or her present dangerousness

13

and s. 9 of the

Charter

because it provided for arbitrary detention by applying automaticallyand without regard to the circumstances of the particular accused.

14

Boththese violations were found not to be reasonable limits under s. 1 of the

Char-ter

, a provision that allows the state to impose limits on

Charter

rights whichare “demonstrably justifiable in a free and democratic society.” The Courtheld that the

Charter

requires that the accused be detained no longer than isnecessary to determine whether he or she currently presents a danger and thatthis decision must be made pursuant to clear criteria.

Rather than strike down an important

Code

provision, which could have re-sulted in the release of many individuals held on warrants across the country,

10

See, also, for example, Lee J. Baldwin, Anthony A. Menditto, Niels C. Beck, & Sara M. Smith,

FactorsInfluencing Length of Hospitalization for NGRI Acquittees in a Maximum Security Facility

J. Psychiatry

&L. 257 (1992), where the authors found a strong relationship between the severity of the index offence andthe length of hospitalization.

11

The study by Webster,

supra

, note 9, provided some support for this intuition. It was found that almosthalf those held on a lieutenant governor’s warrant had originally been charged with homicide (generallymurder) or attempted murder. Their figures were 30% for homicide and 17% for attempted murder. Thestudy included all persons under a lieutenant governor’s warrant (including those found unfit to stand trial).The fact that those charged with more serious offences were likely to be detained longer could makecomparisons difficult.

12

Supra

, note 8.

13

Section 7 provides

Everyone has the right to life, liberty and security of the person and the right not to be de-prived thereof except in accordance with the principles of fundamental justice.

14

Section 9 provides that “Everyone has the right not to be arbitrarily detained or imprisoned.”

422 I. GRANT

the Court suspended its declaration of invalidity for 6 months to enable Parlia-ment to enact legislative reforms.

15

The Aftermath of

Swain

: Bill C-30

The result of

Swain

was to pressure Parliament to pass Bill C-30,

16

whichhad been years in the making, and subject to many federal/provincial squab-bles.

17

Bill C-30 was proclaimed into law in February 1992. The bill made ma-jor changes to the

Code

provisions dealing with mentally ill offenders. The in-sanity defence in s. 16 of the

Code

was changed to the mental-disorder defencealthough the definition of mental disorder was identical to that of insanity un-der the former provisions. The defence no longer led to a finding of

not guiltyby reason of insanity

but rather to a finding of

not criminally responsible on ac-count of mental disorder

(n.c.r.m.d.). The changes to s. 16 of the

Code

, how-ever, were largely cosmetic as the substantive definitions of the exculpatorystandard remained the same.

The changes to the disposition provisions of the

Code

, were much more sig-nificant. As described above, prior to the amendments a trial judge had no dis-cretion but to sentence an n.g.r.i. accused to indeterminate detention in strictcustody.

18

Under the new law, once an accused person has been found notcriminally responsible, s. 672.54 empowers a judge either to make a disposi-tion or defer the matter to the provincial Review Board. Section 672.47(1)provides that if the judge defers the matter to the Review Board, it shall hold ahearing and make a disposition not later than 45 days after the verdict wasrendered. If the judge makes a disposition, other than an absolute discharge,the Review Board shall hold a hearing and make a disposition within 90 daysof the disposition made by the judge.

19

Whoever grants the disposition, the judge or the Review Board, has threeoptions as set out in the

Code

: an absolute discharge, a conditional discharge,or indeterminate custody in a psychiatric facility. The criteria for making thatchoice are also set out in s. 672.54. The Board or court shall consider

the need to protect the public from dangerous persons, the mentalcondition of the accused, the reintegration of the accused into soci-ety and the other needs of the accused

Bearing these factors in mind, the choice of disposition must be the “leastonerous and least restrictive to the accused.” However, after setting out these

15

When this objective could not be attained within that period, the Department of Justice applied forand received a 6-month extension. For more details on

Swain

and the legislative response, see Simon N.Verdun-Jones,

The Insanity Defence in Canada

17 I

nt

’

l

J. L. & P

sychiatry

175 (1994).

16

Bill C-30,

An Act to amend the Criminal Code and to amend the National Defence Act and the YoungOffenders Act in consequence thereof

(assented to 1991, c. 43, s. 4, proclaimed in force February 4, 1992).

17

For a description of the history of the new legislation, see Edwin A. Tollefson & Bernard Starkman,M

ental

D

isorder in

C

riminal

P

roceedings

1–12 (1993).

18

The former s. 542(2). It was this part of the regime which was found to be unconstitutional.

19

Section 672.47(3).


criteria, the section goes on to state that an absolute discharge must be givenwhere “in the opinion of the court or Review Board, the accused is not a sig-nificant threat to the safety of the public.”

These criteria are not self-explanatory and have required some judicial in-terpretation on the relationship between the preamble factors (such as themental condition of the accused) and the specific direction concerning abso-lute discharges. The British Columbia Board initially took the position that itcould deny an absolute discharge in cases where the accused presented a riskof harm to self even if the individual was not a significant threat to the pub-lic.

20

However, in a number of cases, the British Columbia Court of Appealhas rejected this approach and clarified somewhat the application of these cri-teria.

In

R. v. Orlowski

,

21

the Court held that if the Review Board can make an af-firmative finding that the accused is not a significant threat to the safety of thepublic, the accused is entitled to an absolute discharge. Obviously if the Boardis of the opinion that the accused is a significant threat, an absolute dischargewill not be granted. Thus, the first task of the Board is to address the questionof whether it believes the accused is

not

a significant threat.Perhaps the most important part of the decision was the Court’s holding

that if the Board is unsure about whether the accused presents a significantthreat, it is not required to grant an absolute discharge. In other words, onlyan affirmative finding that the accused is not a significant threat warrants anabsolute discharge.

22

The Orlowski Court also distinguished between being a threat and being a

significant

threat, noting that an accused could be a threat to the public with-out being a significant threat.

23

Although the Court has held that there is noburden of proof on the hospital to prove that the accused is a significantthreat,

24

the Board must have some evidentiary basis for its refusal to find thatthe accused was not a significant threat and that such evidence must go be-yond mere speculation.

25

If the Board is unable to conclude that the accused is not a significant threat, itmust choose between a conditional discharge and an order that the accused bedetained in custody in a psychiatric facility. A conditional discharge may nothave as a condition that the accused be required to undergo treatment.

26

20

Re Hillairet and the B.C. Review Board

(May 14, 1992).

21

Orlowski v. B.C. (Attorney General)

(1992), 16 B.C.A.C. 204, 28 W.A.C. 204, 75 C.C.C. (3d) 138.

22

In

R.

v.

Winko

(1977), 112 C.C.C. (3d) (B.C.C.A.), a majority of the court held that s. 672.54 imposedno burden of proof on either party and hence that it did not violate the

Charter

. The dissenting judgment ofWilliams J.A. held that the section was tantamount to imposing a burden of proof on the accused and thatthe negative test of “not a significant threat” in s. 672.54 violated s. 7 of the

Charter

and was not areasonable limit under s. 1. He held that a less intrusive and yet effective option would be to require theBoard to make a finding of significant threat before denying an absolute discharge.

23The Court did not elaborate on the circumstances in which a threat to the public safety would not besignificant. In Chambers v. British Columbia (A.G.) (1997), 116 C.C.C. (3d) 406, the Court of Appeal heldthat the threat must relate to criminal conduct.

24Davidson v. British Columbia (A.G.) (1993), 31 B.C.A.C. 111, 50 W.A.C. 111.25D.H., supra, note 22.26Section 672.55 (1).

424 I. GRANT

Orlowski makes it unlikely that the Review Board will often find that theaccused is not a significant threat because of the “future connotation”27 givento the phrase:

if the board is concerned that an accused with an appropriate his-tory is not a present significant threat and will not become one if hecontinues with prescribed medications, but the board also has theopinion that he may be a significant threat if he does not take hismedication, the board cannot be said to have an opinion that the ac-cused is not a significant threat.28

The new legislation introduced more protections than its predecessor, mostnotably putting limits on the length of time a person can be detained in cus-tody based on the seriousness of the crime for which the person was found notresponsible. However, these “capping” provisions have not yet been pro-claimed and thus the conditional discharge and custody dispositions remain in-determinate. While the indeterminate nature of the former system was not ad-dressed by the Supreme Court in Swain, concerns about its legality remain.29

Judges now defer most dispositions to the provincial Review Boards. Thosethat are not deferred must be reassessed by the Review Board within 90days.30 Thus, the authority to determine what happens to individuals foundnot criminally responsible has effectively been transferred from a politicalprocess to an administrative one. Under the old regime, Review Boardsplayed an advisory role only and a province was not required to establish sucha Board. Under the current regime, however, Review Boards are independentdecision-makers.31 This study focuses on one such board, the British ColumbiaCriminal Code Review Board.

Objectives and Data of the Study

Objectives

Using data from the British Columbia Review Board, this study examines anumber of issues. First, are more people raising the defence because of the

27Supra, note 21, at 146 C.C.C.28Id.29When the capping provisions were first introduced in 1986, they were described by a government news

release as being “in keeping with the Charter.” News Release, Minister of Justice and Attorney General ofCanada, June 25, 1986.

In R. v. Lepage (1995), 40 C.R. (4th) 43 (Ont. Ct. (Gen. Div.)) Mr. Justice Howden rejected theaccused’s argument that the failure to proclaim the capping provisions constituted a violation of s.7 of theCharter. The Court held that there is no constitutional right to capping within a certain period of time andthere is no authority for saying that failing to proclaim a legislative provision is contrary to the Charter. Thisdecision, which also found that the disposition provisions of the new regime violate the equality guaranteesof s. 15 of the Charter by discriminating against mentally disordered accused persons, is under appeal.

30Absolute discharges, when granted by a court, are not reviewed by the Review Board.31See J. Peay, Tribunals on Trial: A Study of Decision-Making Under the Mental Health Act

1983 (1989).


new flexibility in disposition provisions? Under the new law, although a per-sons faces the possibility of indeterminate hospitalization, it is no longer inevi-table. Thus, one might expect an increase in n.c.r.m.d. defences for personscharged with less serious offences, the group that historically had less incen-tive (than those charged with more serious offences) to raise the defence andrisk indeterminate detention.

Second, is the Review Board in fact utilizing the new disposition provi-sions? Whether more accused decide to raise the mental-disorder defence maydepend partially upon the extent to which provincial Review Boards are will-ing to utilize dispositions other than indeterminate custody. Is the British Co-lumbia Review Board meting out absolute discharges in many cases or is it re-lying more on custodial dispositions?

Third, and most importantly, the study examines the factors that influencedthe Board in its decisions. Were more onerous dispositions given to those whohad been charged with more serious offences? Was gender a relevant factor,i.e., were men more likely to receive custodial dispositions on the basis thatthey are perceived as more dangerous?32 Was the Board’s finding about thethreat to the public presented by the accused determinative of disposition?Was the Board’s perception of the accused’s clinical diagnostic status influen-tial? Did it matter whether the accused was in the community or in custody atthe time of the hearing?

The Data

This study examines all the decisions of the British Columbia Review Boardfrom May 1992 until the end of 1994.33 The author was given access to all Re-view Board orders and reasons for orders but not to any of the clinical dataprovided to the Board by attending psychiatric staff. During the 32 months ofthis study, the Board released 112 initial dispositions in new n.c.r.m.d. cases.By initial dispositions, I refer to those dispositions where a court either de-ferred the disposition decision to the Review Board or where a court ordereda conditional discharge or a custody disposition that would only be in force fora maximum of 90 days. As this is a study of whether the recent amendmentshave changed initial dispositions (as opposed to reviews), individuals who hadbeen found n.g.r.i. under the old law but were still in the system at the time ofthe amendments were not included in the sample.

Each order and reasons for judgment were read and the following variableswere coded for each case: gender, underlying charge leading to the n.c.r.m.d.verdict, disposition, the Board’s finding as to whether the accused was a signif-icant threat, the diagnosis of the accused as identified by the Board, andwhether the accused was in custody or in the community at the time of the ini-

32See, for example, Robert Menzies, Dorothy Chunn, & Christopher Webster, Female Follies: The Fo-rensic Psychiatric Assessment of Women Defendants 15 Int’l . J. L. & Psychiatry (1992) 179, and P. Coontz& E. Mulvey, Gender and the Assessment of Dangerousness in the Psychiatric Emergency Room, 17 Int’l.J. L. & Psychiatry 369 (1994).

33The first case of an accused found n.c.r.m.d. after the amendments were proclaimed in February 1992was heard by the Review Board in May 1992.

426 I. GRANT

tial Review Board hearing. An attempt was made to choose variables thatcould be coded as objectively as possible. Most of these variables were easilyidentified and there was complete agreement between the two persons codingthe data. It was occasionally difficult to distinguish between a conditional dis-charge and a conditional discharge with a custody condition. Where there wasany disagreement between the two coders, the disposition was confirmed ei-ther with Review Board records or with counsel representing clients beforethe Board.

The following sections will begin to paint a picture of who is successfullyraising the mental-disorder defence, what dispositions are being meted out,and what factors are influencing at least one Board in its decisions.34 Twoforms of analyses are undertaken. First, the data is presented in a descriptiveform in an attempt to illustrate who is successfully raising the defence of men-tal disorder and what dispositions are being meted out by the Board. Second,the results of a regression analysis are presented to illustrate which factors, ifany, were particularly influential in determining the Board’s dispositions.

Results

Who Is Raising the Defence?

Has the number of persons entering the system having been foundn.c.r.m.d. increased since the 1992 amendments? The answer appears to beyes. For example, the study by Webster revealed that between March 1, 1990,and February 28, 1991, a total of 23 new individuals entered the system onwarrants in British Columbia. Only seven of those were based on a finding ofn.g.r.i. Ogloff reported that the numbers of persons admitted to the ForensicPsychiatric Institute following a finding of n.g.r.i. for the years 1988, 1989, and1990 were 11, 14, and 7, respectively.35

In the present study, by contrast, over each of the two full calendar years,1993 and 1994, which were included in the study, the numbers of newn.c.r.m.d.’s entering the forensic system were 38 and 60, respectively. This is asubstantial increase. While there is no way to prove from this data alone thatthe increase is a result of more accused persons choosing to raise the defence(as opposed to simply a higher success rate of the defence), this explanationappears likely. As the amendments do not change the substantive criteria forthe defence, there is no reason to believe that the defence is easier to maintainafter 1992. In fact, after Swain, it is now more difficult for the Crown to raise men-tal disorder, which, if anything, should decrease the number of not-responsibleverdicts. Thus, in the absence of any evidence that it is only the success ratio

34There were other variables that would have been helpful but were not revealed in enough of the deci-sions to undertake a systematic analysis. For example, psychiatric history, criminal record, and various de-mographic information about the accused were not consistently referred to by the Board. Nor was it alwaysclear from the reasons what the psychiatric evidence about the accused recommended.

35James R. P. Ogloff, The Use of the Insanity Defence in British Columbia: A Qualitative andQuantitative Analysis (1991).


for the defence that has increased, it seems reasonable to conclude that moreaccused persons are raising the defence.

The data also reveals that accused persons are raising the defence for abroad range of offences. Webster found that almost half those held on a lieu-tenant governor’s warrant (L.G.W.) had been charged with murder or at-tempted murder.36 In 1989, Golding et al., found that slightly more than 40%of their n.g.r.i. sample had been charged with murder or attempted murder.37

Phillips et al., in a study of all lieutenant governor’s warrants in Ontario, re-ported that 85% of the women and 70% of the men had been charged withmurder or attempted murder.38 Rice and Harris found a much higher numberof murder and attempted-murder charges in a group of n.g.r.i. acquittees thanin a random group of patients admitted for pretrial assessment who were notfound n.g.r.i.39 Of their n.g.r.i. sample, 74% had been charged with murder orattempted murder.

Of the 112 cases in the present study, only 7 accused (6.25%) were chargedwith murder with an additional 6 (5%) accused charged with attempted mur-der.40 Eighty of the 112 (71.43%) successful n.c.r.m.d. defences involvedcharges of offences against the person, 22 accused (19.64%) were charged withproperty crimes, and 10 (8.93%) with what I have designated crimes againstpublic order (such as possession offences, dangerous driving, indecent expo-sure).41 The 80 crimes against the person included 10 homicides,42 6 attemptedmurders, 8 sexual assaults, and 45 assaults ranging from simple assault to ag-gravated assault. For 13 accused (12%), simple assault was the most seriouscharge against them. With respect to property crimes, the defence was raisedfor offences ranging in seriousness from mischief and loitering to intentionallyor recklessly causing damage by fire. Table 1 displays the distribution of typesof offences.

Thus, it is clear that the defence is being raised for a very broad range of of-fences from the minor (e.g., mischief) to the most serious (murder). The rate

36Supra, note 9.37Stephen Golding, Derek Eaves, & Andrea Kowaz, The Assessment, Treatment and Community

Outcome of Insanity Acquittees: Forensic History and Response to Treatment, 12 Int’l. J. L. & Psychiatry149 (1989). See also Robert M. Wettstein & Edward P. Mulvey, Disposition of Insanity Acquittees in Illinois,16 Bull. Am. Acad. Psychiatry L. 11 (1988), who found that 48% of their sample of n.g.r.i.’s had beencharged with murder or attempted murder. See also Robert A. Nicholson, Steve Norwood, and CharlesEnyart, Characteristics and Outcomes of Insanity Acquittees in Oklahoma, 9 Behav. Sci. & L. 487 (1991).

38M.S. Phillips, T. Landau, D. Sepejak, & C. Osborne, The Advisory Review Board and Characteristics ofPatients on Warrants of the Lieutenant Governor of Ontario, 13 Bull. Am. Acad. Psychiatry L. 373 (1985).This study combined those found n.g.r.i. with those found unfit to stand trial.

39Marnie E. Rice & Grant T. Harris, The Predictors of Insantiy Acquittal, Int’l. J L. & Psychiatry 217(1990). See also Michael S. Phillips, Tammy Landau, & Catherine Osbourne, Persons Discharged fromWarrants of the Lieutenant Governor, 32 Can. J. Psychiatry 343 (1987).

40For the purpose of this study, each accused was categorized based on the most serious crimecommitted. Many accused, in fact, had multiple charges against them.

41Other offences categorized as public order offences include being unlawfully at large, breach ofprobation, driving while prohibited, and causing a disturbance.

42Seven murders, two manslaughters, and one infanticide. One of the two manslaughters actuallyinvolved an accused charged with three counts of manslaughter resulting from the deaths of three childrenafter the accused set fire to a house that he believed to be unoccupied at the time.

428 I. GRANT

of very serious crimes in the sample is lower in this population than that re-ported in earlier studies of n.g.r.i. populations.43

The data reveal a higher proportion of women raising the defence thanfound in many previous studies.44 For example, of Webster’s entire sample ofL.G.W. patients, only 11% were women. In the description of the 143 patientsheld on warrant in British Columbia (B.C.) as of March 1, 1990, only 5.6%were female. Of the 23 new persons to enter the B.C. system (only 7 of whomwere n.g.r.i.’s) between March 1990 and February 1992, only 13% werewomen. Phillips et al., in their study of persons on lieutenant governor’s war-rants in Ontario, found that approximately 10% were female.45

In the present study, there were 28 women (25%) and 84 men (75%). Menwere slightly more likely than women to have been charged with crimesagainst the person. Sixty-two of the 84 men (73.8%) were charged with crimesagainst the person as compared with 18 of the 28 women (64.3%). All of the 7accused charged with murder were men. The only female homicide case in-volved a charge of infanticide.46 Eight women (28.6%) were charged withcrimes against property as compared to 14 (16.7%) men (Table 2). It may be

TABLE 1Distribution of Offences

Offence Incidence

Property offences 22 (19.64%)Crimes against public order 10 (8.93%)Crimes against person 80 (71.43%)Total 112 (100%)

43Although see Jeffrey L. Rogers, Joseph D. Bloom, & Spero M. Manson, Oregon’s New Insanity De-fense System: A Review of the First Five Years, 1978 to 1982, 12 Bull. Am. Acad. Psychiatry L. 383, (1984)at 388 where only 10% of the accused had been charged with murder or attempted murder and 26% of thesample had committed only misdemeanor crimes.

44Data on ethnicity, marital status, employment and education, previous hospitalizations and criminalrecord, some of the variables examined by other studies, were not consistently available in the decisions.

45Supra, note 38, at 378. See also Wettstein & Mulvey, supra, note 37, where 18.2% of their sample ofn.g.r.i.’s were female, Jeffrey L. Rogers, William H. Sack, Joseph D. Bloom, & Spero M. Manson, Women inOregon’s Insanity Defence System 11 J. Psychiatry & L. 515 (1983), and Sheilagh Hodgins, Jacques Hébert,& Rosanna Baraldi, Women Declared Insane: A Follow-up Study 8 Int’l. J. L. & Psychiatry 203 (1986).Steadman notes that women tend to be overrepresented in n.g.r.i. populations as compared to penalpopulations, although the percentages he cites are markedly lower than found in the present study. Henry J.Steadman, Insanity Defense Research and Treatment of Insanity Acquittees 3 Behav. Sci. & L. 37, 39 (1985).

For a study of sex differences in persons found n.g.r.i., see Howard V. Zonana, Roxanne L. Bartel,James A. Wells, Josephine Buchanan, & Marjorie Getz, Sex Differences in Persons Found Not Guilty byReason of Insanity: Analysis of Data from the Connecticut NGRI Registry, 18 Bull. Am. Acad. PsychiatryL. 129 (1990).

46A crime that rarely leads to incarceration on conviction. See Isabel Grant, Christine Boyle, & DorothyChunn, The Law of Homicide (1994) at ch. 7.5 Numerous studies suggest that female n.g.r.i.’s are morelikely than male n.g.r.i.’s to have committed crimes against family members, particularly spouses, childrenand parents. See, for example, Steadman, supra, note 45, at 39.


that as the incentive for raising the defence for less serious crimes increases,the numbers of women entering the system will increase.47

The distribution of diagnoses identified by the Review Board was also ex-amined. Analysis of diagnosis was limited by the fact that the only source ofdata available was the Board’s decision. None of the clinical reports reliedupon by the Board were made available to the author. This data is presented,therefore, not to illustrate clinical determinations on diagnosis but rather thediagnoses identified and relied upon by the Board in its decisions.

The Board’s reasons contain statements of diagnosis in only 75 of the 112cases (66.96%). Of those 75, five individuals (6.67%) were labeled with nomental disorder at the time of the Review Board hearing. Only 33.33% ofthose with an identified diagnosis by the Board were labeled as schizophrenic,a lower figure than in most studies of n.g.r.i. acquitees.48 Table 3 reveals the di-agnoses identified by the Board.

Is the Review Board Utilizing the New Dispositions?

The data reveal that absolute discharges are rare in the context of initial dis-positions.49 Of the 112 cases, only one person was granted an absolute dis-charge.50

Conditional discharges were granted quite frequently. Seventy-five of the112 (67%) accused received a conditional discharge. This figure is misleading,however, because 33 of those 73 conditional discharges had, as a condition,

TABLE 2Gender and Offences Committed

Person Public Order Property

Male (N 5 84) 62 (73.8%) 8 (9.5%) 14 (16.7%)Female (N 528) 18 (64.3%) 2 (7.1%) 8 (28.6%)

47In 1994, 81% of the charges brought against women were for nonviolent crimes. In that year, womenwere accused of a total of 8,897 crimes against the person, 25,088 crimes against property, and 13,053 otherCriminal Code offences. Statistics Canada, Canadian Crime Statistics (1994). Of course, men commit agreater percentage of property crimes than crimes of violence as well although the difference is smaller. In1994, men were charged with 59,243 violent crimes, 116,561 property crimes, and 60,765 other CriminalCode offences. (These numbers exclude driving offences.)

48See, for example, Rice and Harris, supra note 39; Webster, supra, note 9, and Golding et al., supra, note37. Most of the previous studies rely on much more extensive diagnostic information than the present studyand should thus be taken as more reliable. However, it is nonetheless possible that the changes in the mentaldisorder provisions have provided an incentive for persons with less serious mental disorders to raise thedefence.

49While there are no reported cases in British Columbia involving absolute discharges granted by judgesfollowing an n.c.r.m.d. verdict, the author did not undertake a comprehensive search of unreporteddecisions. Thus it is possible that courts are playing a role in meting out absolute discharges.

50This disposition was given to a young man charged with mischief and theft. He was allegedly sufferingfrom a drug-induced psychosis at the time of the offence, but the Review Board found that he did not haveany significant mental disorder at the time of the hearing.

430 I. GRANT

that the accused reside at the Forensic Psychiatric Facility or that the directorbe given the authority to order the accused to reside there. While these dispo-sitions were formally called conditional discharges, the practical result for theindividual was a custodial disposition, the only difference being that the direc-tor would have the authority to release the individual without a further Re-view Board hearing. It should be noted that the British Columbia Court ofAppeal has since held that the hybrid conditional discharge with custody is il-legal.51 The likely impact of the Court’s decision, however, is that the rate ofpure custodial dispositions under s. 672.54 will increase to cover all those per-sons the Board believes should be detained in custody.52

There were 42 (37.5%) true conditional discharges granted. This is still asubstantial figure given that prior to 1992, everyone who was found n.g.r.i. wasdetained in a psychiatric facility indefinitely. Custody orders were made for 36(32.1%) of the accused, but if one adds in the 33 conditional discharges wherethe accused was required to live in hospital, the percentage of custodial dispo-sitions increases to 61.6%. Table 4 presents a summary of the dispositions or-dered.

What Factors Determine the Review Board’s Dispositions?

Analysis of the factors influencing the Review Board’s dispositions takesplace on two levels. First, the results of the multivariate regression analysis un-dertaken to determine whether there were any statistically significant predic-tors of disposition are presented. Second, the data are presented in tabular

TABLE 3Breakdown of Diagnoses

Diagnosis Incidence

Schizophrenia 25 (33.33%)Biopolar disorder 20 (26.67%)Other psychoses 10 (13.33%)Organic brain disorder 7 (9.33%)Personality disorder 3 (4.00%)Other disorders 2 (2.67%)No present mental disorder 5 (6.67%)Unsure diagnosis 3 (4.00%)Total 75 (100%)

51In British Columbia (Forensic Psychiatric Institute) v. Johnson, [1995] B.C.J. No. 2247, the Court heldthat this form of disposition was not authorized by the Criminal Code provisions. All individuals for whomthis order was originally made were entitled to have the decision reviewed. However, since that reviewmight have occurred up to 2 years after the original illegal order was made, the revised dispositions were notincluded in the pool of initial dispositions.

52Conversations with lawyers for persons before the Board confirm that this appears to be the trendafter Johnson. The Board is now ordering many more persons be held indeterminately in custody andattaching conditions allowing for leaves to be taken.


form to highlight the specific findings. The implications of the findings are ad-dressed in the Discussion section.

Data Modifications. Some modifications were made to the data for the pur-poses of running the regressions. The dependent variable of disposition wasdichotomized into two categories of disposition: custodial and noncustodial.There was only one absolute discharge in the initial sample and this wasgrouped with the conditional discharges to constitute the noncustodial cate-gory. Similarly, indeterminate custody dispositions were combined with theorder, fashioned by the Review Board, of a conditional discharge, with onecondition being that the accused continue to remain in custody at the ForensicPsychiatric Institute. This latter form of disposition was categorized as custo-dial because that was the practical impact on the accused.53

With respect to the crime charged, accused persons were initially put intoone of three categories: crimes against the person, crimes against property,and crimes against public order. While many accused were charged with morethan one offence, categorizations were based on the most serious offencecharged, according to the penalty available. However, if one of the offenceswas an offence against the person, the accused was placed in that category onthe assumption that individuals who have committed a crime of violence aremore likely to be considered a significant threat to the safety of others. Crimesagainst public order were combined with property offences and then con-trasted with crimes against the person.54

When no significant relationship was found between the type of offence anddisposition, crimes against the person were further categorized based on theirseriousness in an attempt to add more specificity to the offence variable.Those charged with murder were placed in a category of their own based onthe unique seriousness of the crime and the harsh mandatory penalties.55

TABLE 4Dispositions

Disposition Incidence

Absolute discharge 1 (0.9%)Conditional discharge 42 (37.5%)Conditional discharge (with custody condition) 33 (29.5%)Custody 36 (32.1%)Total 112 (100%)

53As was discussed in note 51, this hybrid form of conditional discharge has since been held to be illegalby the B.C. Court of Appeal.

54This makes the first categorization of offences the equivalent of those used by Sheilagh Hodgins, AFollow-Up Study of Persons Found Incompetent to Stand Trial and/or Not Guilty By Reason of Insanity inQuebec, 6 Int’l. J. L. & Psychiatry 399 (1983). Hodgins used violent vs. nonviolent crimes. The categoriesof public order and crimes against property were merged because it was not possible to rank the categoriesas to seriousness.

55Many other authors rank all homicides together. This was deliberately avoided, given that thepunishment and the constitutional dimensions of murder set it aside from other forms of homicide.

432 I. GRANT

Other homicides and attempted murders together constituted a separate cate-gory, and all remaining crimes against the person constituted the final cate-gory. Crimes against property and crimes against public order were then com-bined into one category.

With respect to the status of the individual at the time of the hearing, i.e.,whether the accused was in custody or in the community at the time of thehearing, the accused were divided into two categories: community and cus-tody. Because this information was not available for 10 accused individuals,these people were removed from the sample as necessary.

With respect to the Review Board’s findings as to whether the accused wasa significant threat, there were 11 cases in which the Board made no referenceto this issue. Those 11 cases were omitted from the analysis as necessary.There was only one case where the Board found that the accused was not asignificant threat, and this case was treated as anomalous and excluded fromthe analysis. Thus, the study dealt with two categories: those where the Boardhad found the accused was a significant threat and those where the Board wasunable to reach a conclusion on the issue.

To test the significance of various potential predictors of the Board’s dispo-sition decisions, a set of multivariate logistic regression models was created.For the purpose of statistical analysis, a dichotomous dependent variable DIS-POSITION was created, to which the value of one was assigned if the accusedwas given either an absolute discharge or a conditional discharge with no cus-tody condition attached. The value of 0 was assigned to all custodial disposi-tions. The following were then included as independent variables: SEX (0 5female, 1 5 male); OFFENCEA (1 5 crimes against person, 0 5 crimes notagainst person); OFFENCEB (1 5 crimes not against person, 2 5 crimesagainst person [other than homicide and attempted murder], 3 5 manslaugh-ter, infanticide, attempted murder, 4 5 murder); RISK, whether the Boardcategorized the person as a significant threat (1 5 significant threat, 0 5 un-able to make a conclusion); prehearing STATUS (1 5 community, 0 5 cus-tody). Dummy variables were added to describe the diagnosis of the patient;SCHIZ (1 5 schizophrenia, 0 5 nonschizophrenia) and BIPO (1 5 bipolar, 0 5nonbipolar). Only schizophrenia and bipolar disorder were included in the re-gression because the sample size for other diagnoses was so small.56

The Regression Analysis. The estimation results of the models are summa-rized in Table 5.

As can be seen, the only statistically significant predictor of the ReviewBoard’s disposition was whether or not the accused was in custody at the time ofthe initial hearing. The implications of this finding will be discussed below. How-ever, the findings will first be presented in a more descriptive format to present afull picture of the Board’s first 2 years with the new disposition provisions.

The Relationship of Specific Factors to Disposition.Gender. The regression analysis revealed that gender was not a significant

predictor of disposition. This can be confirmed by looking bivariately at the

56I also ran a regression using the category of NODIAG for all those for whom the Review Board didnot mention a diagnosis, but the results were not significant.


relationship between disposition and gender. Of the 112 accused, there were28 women (25%) and 84 men (75%). Of the 28 women, 8 (28.57%) receivedcustody orders, with a further 8 (28.57%) receiving conditional dischargeswith custody conditions attached. Thus, 57.14% of the women received somesort of custodial disposition. The remaining 12 (42.86%) received conditionaldischarges. For the 84 men, 28 (33.33%) received custody orders, with a fur-ther 25 (29.76%) receiving conditional discharges with custody conditions at-tached. Thus, 63.09% of the men received custodial dispositions as comparedto 57.14% of the women, a difference that was not statistically significant.Conditional discharges were given to 30 (35.71%) of the men, and one man(1.2%) received an absolute discharge. Table 6 summarizes the dispositionsgranted as for male and female accused persons.

TABLE 5Regression Results

Equation 1A 1B 2A 2B 3A 3B

Constant 22.8430* 23.3479* 22.7449* 23.2686* 23.2401** 23.7633*(1.1923) (1.5006) (1.1999) (1.5141) (1.2522) (1.5513)

Sex .4436 .3955 .4051 .3587 .3953 .3303(.9064) (.9092) (.9072) (.9073) (.9291) (.9293)

Offence a .3240 .3828 .5254(.9415) (.9404) (.9321)

Offence b .3986 .4336 .4878(.5889) (.5982) (.5874)

Risk 27.9934 28.1622 28.0158 28.1780 27.8338 28.0216(37.5400) (37.1259) (37.4862) (37.1760) (37.1295) (36.7626)

Status 4.1534** 4.1934** 4.1181** 4.1645** 4.2260** 4.2835**(.7828) (.7919) (.7844) (.7936) (.8157) (.8284)

Schiz 2.3653 2.3826(.8672) (.8592)

Bipo 1.2194 1.2286(1.0004) (.9964)

*Significant at .05%.**Significant at .01%.Numbers in parentheses represent standard error.

TABLE 6Disposition by Gender

Absolute ConditionalConditional

(with custody)Custody

Male (n 5 84) 1 (1.20%) 30 (35.70%) 25 (29.76%) 28 (33.33%)Female (n 5 28) 0 12 (42.86%) 8 (28.57%) 8 (28.57%)Total (N 5 112) 1 42 33 36

434 I. GRANT

Significant Threat. Even though the Criminal Code gives a central role towhether the accused is a significant threat to the public, the regression analysisrevealed that this was not a statistically significant predictor of the disposition.

The most notable finding about “significant threat” is that there is only oneindividual about whom the Review Board was satisfied that he was not a sig-nificant threat. But this does not mean that the Board felt the other 111 indi-viduals were necessarily a threat to the public. In fact, there were only 20 ofthe 112 (17.86%) individuals about whom the Board concluded that the indi-vidual did pose a significant threat to the public. In 80 of the 112 cases(71.43%), the Board was unable to conclude whether or not the individual wasa significant threat. The remaining 11 cases made no reference to a finding ofsignificant threat.57

Not surprisingly, all those found to be a significant threat were given a cus-todial disposition of some form. Nineteen of the 20 (95%) individuals labeledas a significant threat were given custody dispositions, and one was given aconditional discharge but ordered to remain in the Forensic Psychiatric Insti-tute. Thus, a positive finding of significant threat always led to a custodial dis-position. However, custodial dispositions cannot be explained merely on thebasis of a finding of a significant threat. Seventeen of the 36 custodial disposi-tions involved individuals about whom the Review Board did not conclude theperson was a significant threat. The same is true of 32 of the 33 conditional dis-charges with custody. While a finding of significant threat inevitably leads to acustodial disposition, factors other than risk are clearly also contributing tocustodial dispositions. Table 7 demonstrates the absence of a relationship be-tween disposition and the finding regarding “significant threat.”

The regression analysis results also indicate that there was no relationshipbetween a finding of significant threat and the underlying index offence. Fif-teen of the 20 (75%) persons found to be a threat had been charged with acrime against the person. This figure is less striking when compared with the71.43% of the total sample being crimes against the person. Four of the 20(20%) persons found to be a significant threat to the public had been chargedwith crimes against property. Of the total sample, 19.64% had been charged

57Six of the decisions not raising the matter were before the decision in Orlowski. Of the five after Or-lowski, three received conditional discharges and two received conditional discharges with custody condi-tions.

TABLE 7Significant Threat and Disposition



No threat (n 5 1) 1 0 0 0Threat (n 5 20) 0 0 1 (5.00%) 19 (95.00%)Unsure (n 5 80) 0 37 (46.25%) 29 (36.25%) 14 (17.50%)No reference (n 5 11) 0 5 (45.45%) 3 (27.27%) 3 (27.27%)Total (N 5 112) 1 42 33 36


with property crimes. There was one person (5%) found to be a significantthreat who had been charged with a crime against public order. Thus, the find-ings about risk were spread fairly evenly over the three groups of crimes. TheReview Board’s risk assessments were based on something other than the na-ture of the crime with which the individual had been charged.

The results for murder deserve mention. Of the 80 accused charged withcrimes against the person, only 15 (18.75%) were found to be a significantthreat to the public. However, of the 7 accused charged with murder, 4(57.14%) were found to be a significant threat to the public.

Seriousness of the Offence. One of the most surprising results of the regres-sion analysis was that the seriousness of the underlying offence was not a sig-nificant predictor of the disposition granted by the Review Board.

For the 80 accused in the crimes against the person group, 27 (33.75%) re-ceived custody orders, with a further 23 (28.75%) receiving conditional dis-charges with custody conditions. Thus, a total of 62.5% received custodial dis-positions. Thirty (37.5%) received conditional discharges. Table 8 summarizesthe findings on types of offences and dispositions.

Of the 22 accused in the property-crime group, 7 (31.82%) received custodyorders, with an additional 8 (36.36%) receiving conditional discharges withcustody conditions, Thus, 68.18% received custodial dispositions. There weresix (27.27%) conditional discharges and one (4.55%) absolute discharge.

Of the 10 accused in the public-order category 2 (20%) received custody or-ders with an additional 2 (20%) receiving conditional discharges with custodyconditions. Thus, 40% received custodial dispositions. The remaining 6 (60%)received conditional discharges.

When the crimes against the person group was further subdivided based onthe seriousness of the crime, there was still no significant relationship.58 Onceagain the seriousness of the offence was not a statistically significant predictorof the Review Board’s disposition. Of these more narrowly defined groups,the only crime for which there was a clear relationship between dispositionand the seriousness of the offence was murder. Six of seven accused chargedwith murder (85.7%) received custodial dispositions, with the seventh receiv-ing a conditional discharge.59 Hence, there is no support for the proposition

58For a description of the categories, see supra, text at note 54.59This was a case that received a great deal of media attention involving an accused who killed his wife

allegedly in a state of insane automatism. Re Sullivan and the B.C. Review Board (March 8, 1994).

TABLE 8Disposition by Offences



Person (n 5 80) 0 30 (37.5%) 23 (28.75%) 27 (33.75%)Property (n 5 22) 1 (4.55%) 6 (27.27%) 8 (36.36%) 7 (31.82%)Public order (n 5 10) 0 6 (60%) 2 (20%) 2 (20%)Total (N 5 112) 1 42 33 36

436 I. GRANT

that crimes against the person (other than murder) will lead to more onerousdispositions.60

Diagnosis. The regression analysis also indicated that the Review Board’sassessment of diagnosis did not predict disposition. Table 9 presents disposi-tions as a function of the diagnosis identified by the Board.

Neither a diagnosis of schizophrenia nor of bipolar disorder predicted thedisposition, although 76% of schizophrenics received a custodial disposition ascompared to only 40% of those with bipolar disorder. These differences werenot significant.

One notable finding about diagnosis was the number of persons the Boardfound had no significant mental disorder at the time of the Review Boardhearing. Of the 5 individuals so identified, 1 received an absolute discharge, 2received conditional discharges, and the remaining 2 were detained in custody.Neither of the 2 detained in custody was found to be a significant threat to oth-ers, but there were concerns in both cases about a history of substance abuseas well as the possibility of harm to self.61

60If murder is excluded, of the 73 accused charged with other crimes against the person, a total of 21(28.77%) custody orders and 23 (31.5%) conditional discharges with custody condition were granted. Theremaining 29 (39.73%) were given conditional discharges.

61These findings raise issues, beyond the scope of this paper, about the respective roles of the (federal)criminal justice system and the (provincial) mental health system regarding the appropriateness of thecriminal justice system detaining those who are a danger to themselves but do not present a significantthreat to others. See R. E. Turner, Warrants of the Lieutenant Governor, 32 Can. J. Psychiatry 337 (1987).Note that since this paper went to press, the B.C. Court of Appeal has held that the significant threat mustrelate to a threat of criminal activity. See Chambers, supra, note 23.

TABLE 9Diagnosis and Disposition



TotalCustodial

Schizophrenia (n 5 25) 0 6 (24%) 9 (36%) 10 (40%) 19 (76%)Bipolar disorder

(n 5 20)0 12 (60%) 7 (35%) 1 (5%) 8 (40%)

Other psychoses(n 5 10)

0 4 (40%) 2 (20%) 4 (40%) 6 (60%)

Organic brainDisorder (n 5 7)

0 2 (28.57%) 1 (14.29%) 4 (57.14%) 5 (71%)

Personality disorder(n 5 3)

0 1 (33.33%) 0 2 (66.67%) 2 (66.67%)

Other disorders (n 5 2) 0 1 (50%) 1 (50%) 0 1 (50%)No present mental

disorder (n 5 5)1 (20%) 2 (40%) 0 2 (40%) 2 (40%)

Unsure diagnosis (n 5 3) 0 2 (66.67%) 0 1 (33.33%) 1 (33.33%)No mention in

Decision (n 5 37)0 12 (32.43%) 13 (35.14%) 12 (32.43%) 25 (67.57%)

Total (N 5 112) 1 42 33 36 69 (61.61%)


Prehearing Status. As indicated above, the only statistically significant pre-dictor of disposition was whether the accused was in custody or in the commu-nity at the time of the Review Board hearing. A brief description of the Crim-inal Code provisions relating to this status will help put this issue in context.

On finding an accused n.c.r.m.d., s. 672.45 of the Code allows a court tomake a disposition where “satisfied that it can readily do so.” Section 672.54provides that the judge may order that the person be absolutely discharged, con-ditionally discharged or held in custody. If either of the latter two dispositions ismade, the case must be heard by the Review Board within 90 days. If the judgedoes not make a disposition, s. 672.46 provides that the order in effect for in-terim release or detention at the time of the verdict shall remain in force untilthe Review Board’s disposition. Section 672.46(2) provides an exception to thisand allows the judge to make a release or detention order, including an orderfor custody in a hospital pending the Review Board hearing. Thus, at the time ofthe Review Board hearing, some accused are in custody while others are not.

Of the 112 accused, information was available about their prehearing statusfor 102 accused. Of those, 65 (63.73%) were being detained in custody and 37(36.27%) were in the community on conditions at the time of the hearing. Anexamination of the dispositions given to each of these two groups reveals theclose relationship between prehearing status and disposition.

Of the 65 persons held in custody prior to the hearing, 60 (92.31%) weregiven some form of custodial disposition: 27 conditional discharges with cus-tody (41.54%) and 33 (50.77%) custody orders. The remaining 5 (7.69%) weregiven conditional discharges.

Of the 37 accused who were in the community at the time of the ReviewBoard hearing, 1 (2.7%) received an absolute discharge and 30 (81.08%) re-ceived conditional discharges. There were 5 (13.51%) conditional dischargeswith custody conditions and 1 (2.7%) custodial order, for a total of only 6 cus-todial dispositions (16.22%). Table 10 reveals the strong relationship betweenprehearing status and disposition granted.

The results reveal that those in custody at the time of the hearing werelikely to stay there; those in the community were likely to remain there. Only 5individuals who were initially in custody were given conditional dischargesand only 6 individuals who were initially in the community were detained bythe Review Board.

The study also examined whether gender or the seriousness of the offencepredicted prehearing status, but none of the results were statistically signifi-

TABLE 10Prehearing Status and Disposition

Prehearing Status Absolute ConditionalConditional


Community (n 5 37) 1 (2.70%) 30 (81.08%) 5 (13.51%) 1 (2.7%)Custody (n 5 65) 0 5 (7.69%) 27 (41.54%) 33 (50.77%)No information (n 5 10) 0 7 (70%) 1 (10%) 2 (20%)Total (N 5 112) 1 42 33 36

438 I. GRANT

cant.62 Although the majority of accused charged with the most serious crimeswere in custody prior to the Review Board hearing, seriousness of the offencewas not a statistically significant predictor of prehearing status.

Beyond Initial Dispositions: Absolute Discharges on Review

Given the limited data available to the author, this study did not undertaketo conduct a complete follow-up of all 112 accused persons to determine howlong they were detained in the system. However, the B.C. Review Board didmake available data as to which of the 112 accused had been granted an abso-lute discharge by June 15, 1996. As of this date, 29 (25.89%) of the sample of112 had been absolutely discharged.

A logistic regression was then used to determine what factors could predictthe granting of absolute discharges within this period. Gender, offence, dispo-sition, risk, and diagnosis were all examined. Prehearing status was omittedbecause it had been a statistically significant predictor of disposition. The onlytwo statistically significant variables were the initial disposition, with personsgiven a conditional discharge more likely subsequently to be given an absolutedischarge, and diagnosis, with those diagnosed with a bipolar disorder beingmore likely to receive an absolute discharge. Table 11 presents the results ofthe regression analysis.

62As neither variable was significant, the regression results have not been included.

TABLE 11Regression Results

Equation 1A 1B 2A 2B 3A 3B

Constant 22.6015*** 22.5139** 22.3999** 22.3516** 23.0678*** 22.9372***(.9428) (1.0367) (.9362) (1.0406) (1.0201) (1.0973)

Offence a .7576 .8482 1.0435(.7382) (.7405) (.7833)

Offence b .2808 .3196 .3874(.4191) (.4254) (.4328)

DISP 1.4399*** 1.4525*** 1.3523** 1.3794** 1.3076** 1.3519**(.5528) (.5493) (.5601) (.5550) (.5737) (.5663)

SEX .7169 .6795 .6362 .6150 .7130 .6600(.6879) (.6831) (.6904) (.6843) (.7217) (.7074)

RISK 27.8340 27.9490 27.8829 27.9795 27.7729 27.8845(22.5366) (22.5664) (22.4041) (22.5438) (22.1340) (22.2921)

SCHIZ 2.6699 2.6102(.6704) (.6655)

BIPO 1.4144** 1.2868*(.7128) (.6811)

*Significant at 0.1%.**Significant at .05%.***Significant at .01%.Numbers in parentheses represent standard error.


Tables 12 and 13 illustrate the relationship between absolute discharge anddisposition and absolute discharge and a diagnosis of bipolar disorder.

The type of offence charged was not a statistically significant predictor ofwhich accused received an absolute discharge. Of the 29 absolute dischargesgranted, 3 (10.34%) were for crimes against property, 5 (17.24%) were forcrimes against public order, and 21 (72.14%) were for crimes against the per-son. As of June 1996, no absolute discharges had been granted to a personcharged with murder.

Discussion

What can be drawn from these data? The most striking finding was the rela-tionship between prehearing status and disposition. There are several possibleinterpretations of this finding. One is that the Review Board is deferring to thecourt’s assessment of who should be detained and who should be released.There is certainly no support for this explanation in the decisions themselvesas the Board does not explicitly defer to the courts. To the contrary, shortly af-ter the amendments came into force, the Review Board indicated that, on de-termining the appropriate disposition for an accused for whom the court hadmade a disposition, the Board was still to hold a full hearing and make a dispo-sition regarding the accused. It was not the role of the Board merely to review

TABLE 12Relationship Between Initial Disposition and Absolute Discharge

Original Disposition Incidence of Absolute Discharge

Conditional discharge 20 (68.97%)Conditional (with custody) 5 (17.24%)Custody 4 (13.79%)Total absolute discharges 29 (100%)

TABLE 13The Relationship Between Review Board Diagnosis

and Absolute Discharge

Schizophrenia 4 (13.79%)Bipolar 11 (37.93%)Other psychoses 1 (3.45%)Organic brain disorder 0 (0%)Personality disorder 1 (3.45%)Other disorders 1 (3.45%)No present mental disorder 1 (3.45%)Unsure diagnosis 2 (6.90%)No mention of diagnosis 8 (27.59%)Total 29 (100%)

440 I. GRANT

a court’s disposition.63 Deference to judicial decisions would also be contraryto the very purpose of having a specialized tribunal, which apparently hasmore expertise than courts in determining appropriate dispositions.

A second possible interpretation is that the Review Board and the courtsare reaching the same conclusions about each individual independent of eachother. If the Board and courts are relying on the same factors, it is somethingother than gender, seriousness of the offence, diagnosis, or risk. One possibil-ity is that both are merely deferring to psychiatric reports presented to them.A more thorough examination of the psychiatric evidence available to courtsand the Board would be useful in assessing this possibility. Certainly such aconclusion was not obvious on the face of the Board decisions themselves.

A third explanation is that the mere fact of being in the community or incustody has an important impact on how the Board sees the individual beforeit. If a person is functioning at some minimal level in the community, it wouldbe a drastic move to detain that individual in custody at the Forensic Psychiat-ric Institute (although in six cases this is just what happened). In essence, be-ing in the community before the hearing has given such individuals an oppor-tunity to demonstrate to the Review Board their ability to cope. Persons heldin custody, however, have had no such opportunity. The Board sees those in-dividuals as detained patients who have not been deemed safe to release in thepast and who have had no opportunity to change that perception. They havenot demonstrated an ability to cope in the community because they have hadno opportunity to do so. In essence then, the Board’s dispositions largelymaintain the status quo.

This interpretation also points to the importance of the judicial role in dis-position decisions, not through the mechanism of Review Board deference tojudicial decisions but rather because the courts have the power to establish thestatus quo from which the Board appears reluctant to depart. While the newCriminal Code provisions delegate significant powers to the Review Board, infact the decision made by a judge either prior to or after trial is the most signif-icant predictor of the Review Board’s disposition.64

Perhaps the most surprising finding of this study was the absence of a rela-tionship between the offence charged and either disposition or the obtainingof an absolute discharge during the period under study. The fact that the dis-position granted cannot be predicted from the nature of the offence can be in-terpreted from different vantage points. On the one hand, it illustrates that theBoard is willing to employ noncustodial dispositions even for relatively seriousoffences against the person. On the other hand, the Board is also willing to im-pose custodial dispositions on those charged with less serious property of-fences. In fact, the highest rate of custodial dispositions was found for accusedcharged with property crimes.

63Re Poole and the B.C. Review Board (June 2, 1992). The Board relied on s. 672.47, which requires theReview Board within 90 days to “make a disposition.”

64This finding has implications for lawyers representing clients at trial. For example, ample attentionshould be given to developing arguments regarding bail and regarding release pending the Review Boardhearing.


This is not to suggest that the Board’s decisions should necessarily reflectthe seriousness of the crime. Undue concern for the crime involved could besaid to reflect a punitive element to a Board’s decisions, i.e., the idea thatsomeone who had at least committed the actus reus of a more serious crimeshould face a correspondingly more onerous disposition. Such an approachwould be contrary to the purpose of the mental-disorder defence, which ne-gates criminal responsibility.

This finding may, however, complicate the incentive structure for accusedpersons raising the defence. While the increased flexibility of disposition op-tions might increase the likelihood of persons charged with less serious of-fences raising the defence, the Board’s willingness to impose indeterminatecustodial dispositions for minor offences might cause an individual to thinktwice about raising the defence. For persons charged with serious offences, onthe other hand, the incentive structure might be quite different. Given theBoard’s willingness to grant noncustodial dispositions even for serious of-fences, an accused might prefer to risk that option over the certainty of impris-onment following conviction. The even distribution of dispositions across dif-ferent types of offences makes it impossible for an accused person to assesswhich type of disposition is likely merely from the offence charged.

While the seriousness of the crime per se is not a factor the Review Boardshould be considering in its dispositions, whether the accused is a significantthreat to the public is a very important concern. However, because of the in-terpretation given to this phrase by both the Review Board and the BritishColumbia Court of Appeal, the importance of the threat to others as a predic-tor of disposition has been minimized. Positive findings with respect to a sig-nificant threat do lead to custody but, because the courts have told the Boardthat it need not reach a conclusion on whether the accused is a significantthreat, in the majority of cases this criteria is not determinative.

A related point is the Board’s obvious reluctance to conclude that a personis not a significant threat. In the 112 initial dispositions, that conclusion wasreached only once. Most commonly, the Board would say it was unable to con-clude whether the accused was a significant threat. In those cases where theBoard did reach a conclusion that the accused was a significant threat, a purecustodial disposition was virtually inevitable. The cases where the Board de-clined to make a finding were based on limited evidence and reflected anabundance of caution. In one case, for example, in ordering a custodial dispo-sition, the Board could not conclude that the accused was not a significantthreat because it did not have all her mental health records and it was possiblethat those records would reveal information that would suggest she was athreat.65

The difficulty created by this interpretation of the criteria is that someonewith a history of mental illness, in combination with having been found notcriminally responsible for a criminal offence, will have a very difficult time es-tablishing that he or she is not a significant threat. Many contingencies relatingto medication, the cyclical nature of some disorders, and to the presence/absence of community support make a finding of no significant threat extremely

65Re Eskenazy and the B.C. Review Board (March 1, 1993).

442 I. GRANT

remote. While the courts have said there is no burden of proof on the accusedperson, this is in fact what it amounts to. As it was pointed out by the dissentin Winko, the accused may have neither the resources nor the mental ability toobtain the necessary evidence to satisfy the Review Board.66 If the Board isnot satisfied that the accused is neither an imminent risk, nor that he or shecould not become one if certain contingencies ensued, an absolute dischargeis denied. This is particularly important given the significance of the prehear-ing status of the accused to disposition. An accused in custody has an evenmore difficult time establishing that he or she is not a significant threat. Prov-ing an absence of risk, in the context of a person with a mental disorder whohas committed the actus reus of a crime and is in custody, is an onerous taskindeed.

The data on diagnosis was too limited to draw firm conclusions. The Boarddid not consistently refer to diagnosis in its reasons, and the sample sizes formany of the diagnoses were too low to produce meaningful results. The rate ofschizophrenia in the present population, for example, is lower than in previousstudies, but it is difficult to assess the validity of this finding given the numberof cases in which no conclusion on diagnosis was stated. Further study isneeded on the relationship of diagnosis to disposition.

Neither of the findings regarding the predictors of absolute discharges issurprising. With respect to disposition, one would expect the Board to gradu-ally reduce the level of supervision over an accused. An absolute discharge isless likely for someone who has had no opportunity to live in the community.This finding is also consistent with the statistical relationship between pre-hearing status and disposition.

With respect to a diagnosis of bipolar disorder, if in fact drug treatment ismore successful for this form of disorder than for many of the psychotic condi-tions listed, such as schizophrenia, it is likely that stabilization would takeplace somewhat more quickly. It was illustrated above that a lower percentageof persons diagnosed as bipolar was given custodial dispositions than for mostother diagnoses although this difference was not statistically significant. Fur-ther, the stigma associated with affective disorders is generally not as severe asthat associated with schizophrenia.

The findings on absolute discharge highlight the importance of the role ofprehearing status in determining disposition. If prehearing status is highly pre-dictive of disposition, and disposition is predictive of who gets an absolute dis-charge sooner, then obviously prehearing status will also have an impact onthe speed at which persons are absolutely discharged.

Conclusion

Unlike most of the previous studies, which focused on the population ofpersons successfully raising the insanity/mental disorder defence, this study fo-cused on the Review Board itself and the factors influencing its decision mak-ing. Given the brevity of the Board’s reasons in most cases and the lack of sta-tistically significant predictors, other than prehearing status, it is difficult to

66Supra, note 22.


draw broad conclusions. Certainly the link between prehearing status and dis-position warrants further examination. Because this status is so crucial in pre-dicting disposition, it is necessary to examine just how judges are making thesedecisions and to ensure that lawyers are aware of the importance of this in-terim stage of the process.

The findings of this study suggest that increasing numbers of accused per-sons are successfully raising the mental disorder defence. The Criminal Codedelegates to the provincial Review Boards the power to determine whatshould happen to persons found n.c.r.m.d. These two facts highlight the im-portance of Review Board decisionmaking, which should be of interest to law-yers, psychiatrists, and policymakers. Further research is necessary to eluci-date more fully the factors influencing Review Board decisionmaking inBritish Columbia and in other Canadian provinces. Researchers need accessto all the materials available to the Review Board in order to undertake amore definitive analysis of the role of risk in decisionmaking and of the degreeof reliance on psychiatric recommendations. At the very least, it is hoped thatthis study will trigger interest in studying Criminal Code Review Boards as im-portant legal decision-makers in the criminal justice system.

canada’s new mental disorder disposition provisions:: a case study of the british columbia...

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