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The paramount consideration : decision-making by the British Columbia Review Board in initial disposition decisions McCleery, Kyle Andrew

Abstract

Within Canadian criminal law, the mental disorder defence grants exemptions from criminal liability to those who commit criminal acts while suffering from a mental disorder that renders “the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.” Unlike traditional defences, the mental disorder defence does not result in an outright acquittal and unconditional release. Instead, those who satisfy the requirements of the defence are found “not criminally responsible on account of mental disorder” (NCRMD) and become subject to the jurisdiction of a provincial Review Board, which is tasked with reviewing the case of each NCRMD accused annually and deciding whether each accused should be discharged absolutely, discharged with conditions, or detained in a hospital for the purpose of treatment. The Review Board also has jurisdiction over those found unfit to stand trial, but these accused are outside the scope of this thesis. This thesis examines decision-making by the British Columbia Review Board in initial disposition decisions relating to NCRMD accused in 2015 and 2016. A quantitative analysis suggests that the best predictors of disposition in these cases are the sex, age, and diagnosis of the accused. A review of the contents of the Review Board’s decisions confirms the importance of the accused’s mental health status, but also reveals a concern for the accused’s criminal history and ongoing substance abuse. The Review Board is highly focused on risk assessment and the protection of the public to the exclusion of other considerations, including those listed in the governing legislation. This thesis examines this focus on public safety and calls for the introduction of measures to better balance the interest of the NCR accused with those of the public. It concludes with a discussion of the implications of this focus on public safety and calls for the introduction of measures to better balance the interests of the accused with those of the public.

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Attribution-NonCommercial-NoDerivatives 4.0 International

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