section 672.89(2)

INTRODUCTION AND BRIEF DESCRIPTION

This section allows the Attorneys General of provinces to enter into agreements for Review Boards to exercise powers over transferred accused individuals.

SECTION WORDING

672.89(2) Notwithstanding subsection (1), the Attorneys General of the provinces to and from which the accused is to be transferred as described in that subsection may, after the transfer is made, enter into an agreement subject to this Act, enabling the Review Board of the province to which an accused is transferred to exercise the powers and perform the duties referred to in subsection (1) in respect of the accused, subject to the terms and conditions and in the circumstances set out in the agreement.

EXPLANATION

Section 672.89(2) of the Criminal Code of Canada provides for the possibility of an agreement between the Attorneys General of the provinces regarding the transfer of an accused person. This follows from subsection (1), which sets out the conditions under which a person who has been found not criminally responsible (NCR) may be transferred from one province to another for the purposes of the Review Board. Under the terms of an agreement entered into pursuant to this section, the Review Board of the receiving province would be empowered to exercise the powers and perform the duties set out in subsection (1) with respect to the accused, subject to the conditions set out in the agreement. This would effectively allow for a seamless transfer of the responsibility for the management and treatment of NCR accused between provinces. The purpose of this section is to provide flexibility in the management of NCR accused persons, recognizing that the resources and expertise available in different provinces may vary. By enabling provinces to enter into agreements regarding the management of NCR accused persons, this section ensures that all individuals receive the appropriate care and treatment, regardless of their location within Canada.

COMMENTARY

Section 672.89(2) of the Criminal Code of Canada provides a mechanism for the Attorneys General of the provinces involved in transferring a mentally ill accused to enter into an agreement subject to the Act. The agreement enables the Review Board of the receiving province to exercise the powers and perform the duties, as stipulated in subsection (1), in respect of the transferred accused. This agreement is subject to specific terms, conditions, and circumstances set out in the agreement. This section of the Criminal Code was introduced to facilitate the transfer of mentally ill accused between provinces while ensuring that the protective powers granted by Review Boards pursuant to subsection (1) are not reduced or impacted upon. Every province in Canada has a Review Board that is responsible for determining the disposition of mentally ill accused persons and their detention in a healthcare facility. The Review Board is also mandated to perform the statutory duties as prescribed in subsection (1), which is to review the detention of every accused found not criminally responsible by reason of a mental disorder (NCRMD). The Review Board must determine whether detention is necessary, prescribe the appropriate conditions to be imposed on the accused, and monitor the progress of the accused towards release. The ability to transfer an NCRMD accused to another province that may have more suitable healthcare facilities or family support is paramount for the effective management of the mental health of the accused. However, the transfer process must not abrogate the role of the Review Board. This is why section 672.89(2) was enacted. It ensures that the Review Board of the receiving province has the authority to continue the work of the Review Board of the sending province, making sure that the accused's healthcare and detention are managed according to existing protocols. The Minister of Justice recommends such transfers after receiving reports from the Review Board and the Director of Mental Health. Detailed information about the health status and background of the accused; the severity, nature, and likelihood of reoccurrence of the accused's mental condition; the need for the transfer, treatment, and rehabilitation of the accused is communicated with the Attorney General of the receiving province. The agreement entered into pursuant to section 672.89(2) is essential for the successful transfer of an NCRMD accused. The agreement must be subject to the Act and all other relevant provincial legislation, ensuring that the Review Board of the receiving province has all the powers and obligations conferred on the Review Board of the sending province. The terms and conditions set out in the agreement will include the NCRMD accused's medication, treatment, supervision, access to family support, and conditions of release. These terms and conditions are integral to the rehabilitation and reintegration of the accused in society, and they are reflective of the core values of the Canadian justice system - rehabilitation and public safety. The Canadian justice system recognizes that the treatment and rehabilitation of mentally ill accused persons are critical for their benefit, the safety of the public, and the maintenance of a just society. The ability to transfer NCRMD accused persons to other provinces is fundamental to achieving these goals. However, if the transfer process results in the loss of the powers and duties granted to the Review Board, mentally ill accused persons will be exposed to greater health risks, and public safety may be compromised. Consequently, section 672.89(2) provides a crucial mechanism through which NCRMD accused may receive healthcare and necessary treatment while maintaining the protective powers granted by the Review Board in a province.

STRATEGY

Section 672.89(2) of the Criminal Code of Canada allows the Attorneys General of provinces to enter into an agreement that will enable the Review Board of the province where an accused is transferred to exercise the powers and perform the duties in respect of the accused. Such agreements are subject to the terms and conditions set out in the agreement and in accordance with the law. Strategic considerations when dealing with this section of the Criminal Code of Canada are important as they may have implications for the accused, the Review Board, and the Attorneys General involved. One major consideration is how the agreement will be structured to ensure that the accused is treated fairly and protected while undergoing the review process by the Review Board. There are several strategies that can be employed to address these considerations. Some of these strategies are: 1. Collaborative approach: In this strategy, the Attorneys General of the provinces involved may choose to work collaboratively to ensure that the agreement is structured in a way that will safeguard the rights of the accused and minimize the risk of any negative outcomes or unintended consequences. This approach emphasizes the need for communication, active listening, and clarity in decision-making. 2. Consultation with stakeholders: Another strategy that could be employed is the consultation of stakeholders such as the accused, their lawyer, the Review Board, and representatives from the community. This strategy promotes transparency and inclusivity in the decision-making process and helps to ensure that the agreement is balanced and fair in addressing the concerns of all parties involved. 3. Legal and procedural compliance: Ensuring compliance with legal and procedural requirements is also a key consideration when dealing with this section of the Criminal Code of Canada. The Attorneys General should ensure that the agreement adheres to the provisions of the law and relevant laws and regulations governing the transfer process. 4. Addressing Conflicts of Interest: Another strategy that could be employed is to address any potential conflicts of interest that may arise by designating an impartial mediator or governance body to oversee the transfer process and review the agreement. This helps to promote transparency, accountability, and fairness in decision-making. In conclusion, when dealing with Section 672.89(2) of the Criminal Code of Canada, the Attorneys General of provinces must consider several strategic considerations to ensure a fair and impartial process for the accused undergoing review by the Review Board. Strategies such as a collaborative approach, consultation with stakeholders, legal, and procedural compliance, and addressing conflicts of interest are essential in ensuring that the agreement is balanced and fair and that the rights of the accused are protected.