Mozzei: Constrained Progress in Construing Review Board Powers

Document Type

Response or Comment

Publication Date



Mozzei, Access to Justice, Forensic Psychiatric Facilities, Insanity Defence, Mental Illness, Incarceration, Supreme Court of Canada, Not Criminally Responsible


Access to justice must have seemed a remote concept for inmates of Canadian forensic psychiatric facilities prior to R. v. Swain. A confluence of unfavourable factors had resulted in many insane acquittees (as they were then known) discovering that "the pleasure of the Lieutenant-Governor" would seldom be exercised in his or her favour. The insanity defence often meant that accuseds were confined for unconscionably long periods in punitive environments, with little thought being given to rehabilitation and community reintegration and with scant prospects of asking for the protective intervention of the courts. The post-Swain "sweeping changes" introduced through Part XX.1 of the Criminal Code "reflected an entirely new approach", emphasizing the "twin goals of protecting the public and treating the mentally ill offender fairly and appropriately." The Mental Disorder Amendments presaged a deluge of Supreme Court jurisprudence, confronting many of the complex interpretative dilemmas inherent in a new statutory regime with such bold aims. Heightened scrutiny by the courts has incrementally improved the lot of the accused who is found unfit or not criminally responsible. Mazzei, reported ante p. 1, continues this positive trend in its careful, although timorous, analysis of the powers and jurisdiction of Review Boards and in its prudent assessment of the reasonableness of the conditions imposed on this accused.

Although this article maintains that Mazzei deserves a measured acclaim, it also argues that a bolder stance would be justified in subsequent cases. Moreover, it will be suggested that the achievements of the Supreme Court's post-Swain regime must be assessed in the wider context of the intersection of mental illness and criminal justice, where not criminally responsible verdicts are empirically insignificant. Before turning to Mazzei, this comment will consider why the Canadian criminal justice must not become complacent.