While an accused found not criminally responsible on account of mental disorder by a court is not convicted in the usual sense, the verdict does not constitute an acquittal; it represents a unique third option. An accused that is found NCRMD is diverted to a provincial or territorial Review Board established pursuant to section 672.38 of the Criminal Code. Review Boards are specialized tribunals chaired by a judge, or an individual qualified for a judicial appointment, and comprised of at least four other members, one of which must be entitled under the laws of the particular province to practice psychiatry.
The rationale for this separate stream is that, while the accused is not criminally responsible for his or her behaviour, the public may still require protection from future dangerous behaviour. Therefore, the goal of a Review Board is to conduct an individual assessment of the accused and subsequently craft a disposition that both protects the public and attempts to provide opportunities to treat the underlying mental disorder.
While most NCRMD cases are diverted to a Review Board, the court which renders the verdict also has the authority to order a disposition if it is satisfied that it could readily do so and that a disposition should be made without delay. Under section 672.54 of the Criminal Code, there are three dispositions available to a court or Review Board:
an absolute discharge;
a conditional discharge; or
detention in custody in a hospital.
If the court orders a conditional discharge or detention, however, the provincial or territorial Review Board is still obligated to hold a hearing and order a new disposition within 90 days. Therefore, with the exception of cases that receive an absolute discharge by the courts, Review Boards are generally responsible for determining the appropriate disposition of an accused found NCRMD.
Under section 672.54, the court or Review Board must order the disposition that is the least onerous and least restrictive to the accused. In determining such a disposition, the court or Review Board must balance the dual roles of protecting the public and treating the accused in a fair and humane manner that respects his or her rights. Section 672.54 states that the court or Review Board shall take into account "the need to protect the public from dangerous persons, the mental condition of the accused, the reintegration of the accused into society and the other needs of the accused."