INTRODUCTION AND BRIEF DESCRIPTION
Review Board members are not individually responsible for their actions or omissions carried out in good faith while exercising their powers and duties.
SECTION WORDING
672.38(3) No member of a Review Board is personally liable for any act done in good faith in the exercise of the member’s powers or the performance of the member’s duties and functions or for any default or neglect in good faith in the exercise of those powers or the performance of those duties and functions.
EXPLANATION
Section 672.38(3) of the Criminal Code of Canada is an important provision that protects members of Review Boards from personal liability for carrying out their duties and functions in good faith. Review Boards are appointed by the government to make decisions about individuals who have been found not criminally responsible or unfit to stand trial due to mental illness or other mental disorders. These individuals are usually detained in a psychiatric hospital, and the Review Board is responsible for reviewing their case on a regular basis to determine if they should be released, continue to be detained, or have their conditions modified. In carrying out their duties, members of Review Boards are required to make complex and often difficult decisions that can have significant consequences for the individuals involved and the community at large. As such, it is important that these members are protected from personal liability for any act done in good faith or default or neglect in good faith. This ensures that they can make decisions based on the best available information and in the interest of public safety without fear of legal repercussions. However, it is important to note that this provision only applies to members of Review Boards who are acting in good faith. If a member is found to have acted maliciously, with gross negligence, or in bad faith, they may still be held personally liable for their actions. Additionally, this provision does not absolve Review Boards from accountability or oversight. They must still adhere to their legal obligations and ensure their decisions are fair and reasonable, and can be subject to review by the courts if necessary. Overall, section 672.38(3) provides an important protection for members of Review Boards to carry out their duties without fear of personal liability so they can make informed decisions that are in the best interest of public safety and the individuals involved.
COMMENTARY
Section 672.38(3) of the Criminal Code of Canada is an important provision protecting members of Review Boards from being personally liable for their actions or inactions in the performance of their duties and functions. This legal protection is essential to empower and promote professional and fair decision-making in the context of Review Boards. Review Boards are an integral part of the Canadian criminal justice system, established under the Criminal Code to provide an independent review of the ongoing detention and treatment of persons found not criminally responsible on account of mental disorder (NCRMD) or unfit to stand trial. The Review Board's primary role is to conduct periodic reviews of the individual's status and determine whether the person should remain in detention, be released back into the community, or receive certain treatment programs tailored to their specific needs. The members of the Review Board are appointed by the Lieutenant Governor in Council and are drawn from diverse backgrounds such as mental health, law, and social services. They receive specific training to ensure that they are capable of providing independent and impartial decision-making in complex cases involving NCRMD or unfit persons. However, despite their specialized knowledge and expertise, they are still subject to human error and challenging decision-making situations that can lead to mistakes and unintentional consequences. Section 672.38(3) recognizes that the role of Review Board members is to make decisions based on complex evidence and circumstances, and that their decisions are not always black and white in nature. As such, it is vital that Review Board members feel comfortable and empowered to make decisions without the fear of legal repercussions. This protection also promotes transparency and accountability, as members can feel free to explain their reasoning and actions without fear of personal liability. It is important to note that the protection offered by Section 672.38(3) is not absolute. It only applies to those actions or inactions done in good faith. This means that if a Review Board member acts maliciously or recklessly, they may still be held personally liable for their actions. Review Board members are expected to uphold high ethical standards and make decisions based on the best available evidence and the principles of procedural fairness. In conclusion, Section 672.38(3) of the Criminal Code of Canada is a crucial protection for Review Board members in the discharge of their duties. It recognizes the challenging nature of the decisions they make and empowers them to make decisions without the fear of legal repercussions. This protection promotes transparency, accountability, and impartiality, which are integral to ensuring the ongoing fair and just treatment of persons found NCRMD or unfit.
STRATEGY
Section 672.38(3) of the Criminal Code of Canada outlines the immunity from personal liability that is granted to members of a Review Board, who are responsible for making decisions regarding the treatment and release of individuals found not criminally responsible or unfit to stand trial due to mental illness. It is important for legal practitioners and other stakeholders involved in these processes to understand the implications of this immunity and consider strategies for effectively navigating this legal landscape. One strategic consideration is the potential impact of this immunity on the accountability of Review Board members. While this provision is intended to protect members from baseless lawsuits and promote the exercise of their duties in good faith, it also raises questions about the ability to hold individuals accountable for instances of negligence or misconduct. As such, it may be important to consider how this immunity can be balanced with other mechanisms for promoting transparency and accountability in the Review Board system, such as through effective oversight and monitoring. Another key consideration is how this immunity might affect the interests of individuals subject to Review Board decisions. In cases where a person's liberty is at stake, the potential for negative outcomes resulting from a member's misconduct or negligence can be significant. In order to mitigate this risk, it may be important for legal practitioners and other stakeholders to advocate for robust mechanisms for ensuring procedural fairness and objective decision-making within the Review Board system. One strategy that could be employed to address these concerns is to focus on building relationships between Review Board members and other stakeholders involved in the decision-making process, including defense counsel, Crown attorneys, and mental health professionals. By engaging in collaborative dialogue and building trust, it may be possible to promote open communication and ensure that decisions are made in the best interests of all parties involved. Another strategy could involve advocating for reforms to the Review Board system that would increase transparency and accountability, such as enabling external review of board decisions or establishing independent oversight bodies. By promoting greater accountability, stakeholders can help ensure that the interests of all parties involved in the Review Board process are protected and that the system is functioning as intended. Ultimately, navigating the legal landscape surrounding Review Board decisions requires careful consideration of the potential implications of Section 672.38(3) of the Criminal Code of Canada, as well as a commitment to promoting transparency, accountability, and collaboration among all stakeholders involved in the process. By taking a strategic approach, legal practitioners and other advocates can help ensure that the interests of all parties involved are protected and that the Review Board system is fair, efficient, and effective.