INTRODUCTION AND BRIEF DESCRIPTION
This section states that if an accused in custody under a Review Board is transferred to another province, the Review Board of the original province retains jurisdiction over the accused.
SECTION WORDING
672.89(1) Where an accused who is detained in custody pursuant to a disposition made by a Review Board is transferred to another province otherwise than pursuant to section 672.86, the Review Board of the province from which the accused is transferred has exclusive jurisdiction over the accused and may continue to exercise the powers and shall continue to perform the duties mentioned in sections 672.5 and 672.81 to 672.83.
EXPLANATION
Section 672.89(1) of the Criminal Code of Canada outlines the jurisdiction of Review Boards in cases where an accused who is currently in custody is transferred to another province. In such cases, the Review Board of the province from which the accused is transferred will have exclusive jurisdiction over the accused and will be able to exercise its powers and perform its duties as per sections 672.5 and 672.81 to 672.83 of the Criminal Code. This means that even if an accused is transferred to a different province, the Review Board of the original province will still have the authority to review the accused's detention, order a conditional or absolute discharge, or impose any necessary conditions on the accused's release. The Review Board will also be able to continue providing treatments and services aimed at rehabilitating the accused, even if the accused is no longer physically present in the original province. This section of the Criminal Code plays an essential role in ensuring that the Review Board maintains its authority and mandate over detained individuals, even if they are relocated to another province. It also underscores the importance of providing individuals with the necessary treatment and support to aid their rehabilitation, regardless of where they are physically located.
COMMENTARY
Section 672.89(1) of the Criminal Code of Canada is a provision that outlines the jurisdiction of Review Boards in cases where an accused, who is detained in custody, is transferred to another province. Under this provision, the Review Board of the province from which the accused is transferred has exclusive jurisdiction over the accused, and may continue to exercise its powers and perform its duties. The purpose of this provision is to ensure that the Review Board that has been most involved in the accused's case, and that has made a previous disposition regarding the accused's detention, retains jurisdiction and control over the proceedings. This provision is particularly important in cases where an accused has been determined by a Review Board to be a high-risk offender and requires specialized treatment or monitoring. In such cases, it is crucial that the Review Board with the most knowledge and experience of the accused's situation and needs continues to oversee the proceedings. It is important to note that this provision only applies to cases where the accused is transferred to another province, other than pursuant to section 672.86 of the Criminal Code. Section 672.86 provides for the transfer of an accused from one province to another for the purpose of completing a sentence imposed by a court. This type of transfer is different from a transfer of an accused who is detained in custody pursuant to the disposition made by a Review Board. Additionally, sections 672.5 and 672.81 to 672.83 mentioned in this provision outline the powers and duties of Review Boards in relation to high-risk offenders. Section 672.5, for example, provides that a Review Board may make an order for an accused's conditional or absolute discharge, subject to various conditions. Section 672.81 outlines the criteria that Review Boards must consider when making a disposition regarding detention or release of a high-risk offender. Finally, sections 672.82 and 672.83 provide for the powers and duties of Review Boards in relation to the monitoring and supervision of high-risk offenders. Overall, Section 672.89(1) of the Criminal Code of Canada is an important provision that ensures appropriate continuity of care and oversight for high-risk offenders who are transferred between provinces. It ensures that the Review Board with the most knowledge and understanding of an accused's case has the authority to continue to make decisions and take action in the best interest of both the offender and the community. This provision is a crucial part of Canada's judicial system, ensuring that justice is served and high-risk offenders receive the support and supervision they require upon transfer to a different province.
STRATEGY
Section 672.89(1) of the Criminal Code of Canada establishes the exclusive jurisdiction of the Review Board of the province from which an accused who is detained in custody pursuant to a disposition made by a Review Board is transferred to another province. This provision is crucial for ensuring that the review and supervision of individuals who have been found not criminally responsible on account of mental disorder (NCRMD) or unfit to stand trial (UST) are not disrupted by interprovincial transfers. However, it also presents some strategic considerations for legal practitioners, healthcare professionals, and other stakeholders involved in the management of NCRMD and UST cases. The first strategic consideration is the potential impact of an interprovincial transfer on the continuity and quality of care. One of the key principles of the NCRMD regime is that the mental health needs of the accused must be addressed in a timely and effective manner. If an accused is transferred to another province, it may become more difficult to ensure that they receive the necessary mental health treatment and support, particularly if the receiving province has a different healthcare system, cultural or linguistic barriers, or a lack of specialized resources. Thus, legal practitioners and healthcare professionals should assess the potential risks and benefits of an interprovincial transfer before agreeing to or advocating for it. The second strategic consideration is the potential for disagreements or conflicts between the Review Boards of the sending and receiving provinces. Section 672.89(1) explicitly grants exclusive jurisdiction to the Review Board of the sending province, which means that the receiving province has no authority to make any decisions or take any actions regarding the accused's status, treatment, or supervision. This can create a situation where the two Review Boards have different views on the appropriate course of action, including the level of security, the type of treatment, or the frequency of reviews. Legal practitioners and healthcare professionals should be aware of this potential for jurisdictional conflicts and strive to maintain constructive relationships with all parties involved in the case. The third strategic consideration is the potential impact of an interprovincial transfer on the timely resolution of the case. NCRMD and UST cases are subject to periodic reviews, which can result in a variety of dispositions, including absolute discharge, conditional discharge, detention in a healthcare facility, or detention in a correctional facility. When an accused is transferred to another province, their case may be delayed or disrupted, which can prolong their stay in custody, increase the legal and healthcare costs, and hamper their reintegration into society. Legal practitioners and healthcare professionals should prioritize the efficient management of NCRMD and UST cases and seek to minimize any unnecessary delays or administrative hurdles. To address these strategic considerations, various strategies could be employed, depending on the specific circumstances of the case. For example, legal practitioners and healthcare professionals could negotiate a transfer agreement between the Review Boards of the sending and receiving provinces, which would provide clear guidelines and expectations regarding the accused's treatment and supervision. They could also use technology and remote communication tools to facilitate consultations and exchanges of information between the parties involved in the case. Additionally, they could advocate for the development of specialized interprovincial protocols or programs that would ensure continuity of care and treatment for NCRMD and UST accused who are transferred between provinces. Overall, the key to successfully navigating the jurisdictional challenges posed by Section 672.89(1) is to maintain a collaborative and proactive approach that prioritizes the mental health and legal rights of the accused while respecting the legal and institutional frameworks of the different provinces involved.