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Mental Health and the Criminal Code (14:IX) (view source)

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An accused is presumed fit to stand trial until the contrary is proven on a balance of probabilities (s 672.22 of the ''Criminal Code''). The burden of proof is on whichever side raises the issue, either the accused or Crown Counsel (s 672.23(2)).  
An accused is presumed fit to stand trial until the contrary is proven on a balance of probabilities (s 672.22 of the ''Criminal Code''). The burden of proof is on whichever side raises the issue, either the accused or Crown Counsel (s 672.23(2)).  


An accused is deemed “unfit to stand trial” under s 2 of the ''Criminal Code'' if he or she is incapable of understanding the nature, object or possible consequences of the criminal proceedings, or is unable to communicate with counsel on account of mental illness. If the verdict is that the accused is unfit  to stand trial, any plea that has been made will be set aside and the jury will be discharged (s 672.31). Under s 672.32 the accused may stand trial once he or she is fit to do so. For more information on the test of fitness see ''R. v Taylor'' (1992), 77 CCC (3d) 551, which outlines the various tests in greater detail.  
An accused is deemed “unfit to stand trial” under s 2 of the ''Criminal Code'' if they are incapable of understanding the nature, object or possible consequences of the criminal proceedings, or is unable to communicate with counsel on account of mental illness. If the verdict is that the accused is unfit  to stand trial, any plea that has been made will be set aside and the jury will be discharged (s 672.31). Under s 672.32 the accused may stand trial once they are fit to do so. For more information on the test of fitness see ''R. v Taylor'' (1992), 77 CCC (3d) 551, which outlines the various tests in greater detail.  


The court may order a trial (not an assessment) on the issue of the accused’s fitness to stand trial at any stage in the proceedings prior to a verdict, either on its own motion or on an application of either the prosecution or the defence (s 672.23).  
The court may order a trial (not an assessment) on the issue of the accused’s fitness to stand trial at any stage in the proceedings prior to a verdict, either on its own motion or on an application of either the prosecution or the defence (s 672.23).  


If a person is found unfit to stand trial, he or she may be detained in a mental health facility until he or she recovers sufficiently to be able to proceed with the trial (Criminal Code, s 672.58). However, the court cannot make a disposition order to have an accused detained in a health facility without the consent of the hospital or treating physician (Criminal Code, s 672.62(1)). A recent Supreme Court of Canada case, ''R v Conception'', 2014 SCC 60 at para 3, confirmed the need for such consent. The court found that “[t]he hospital consent was required for the disposition order in its entirety, and not simply the treatment aspects of it.” The exception to this is the rare case in which a delay in treatment would breach the accused’s rights under the Charter and an order for immediate treatment is an appropriate and just remedy for that breach. An inquiry by the court must be held no later than two years after the verdict of “unfit” and every subsequent two years after that. The court may now extend the period for holding an inquiry where it is satisfied that such an extension is necessary to determine if sufficient evidence can be adduced to put the person on trial (Criminal Code, s 672.33).
If a person is found unfit to stand trial, they may be detained in a mental health facility until they recover sufficiently to be able to proceed with the trial (Criminal Code, s 672.58). However, the court cannot make a disposition order to have an accused detained in a health facility without the consent of the hospital or treating physician (Criminal Code, s 672.62(1)). A recent Supreme Court of Canada case, ''R v Conception'', 2014 SCC 60 at para 3, confirmed the need for such consent. The court found that “[t]he hospital consent was required for the disposition order in its entirety, and not simply the treatment aspects of it.” The exception to this is the rare case in which a delay in treatment would breach the accused’s rights under the Charter and an order for immediate treatment is an appropriate and just remedy for that breach. An inquiry by the court must be held no later than two years after the verdict of “unfit” and every subsequent two years after that. The court may now extend the period for holding an inquiry where it is satisfied that such an extension is necessary to determine if sufficient evidence can be adduced to put the person on trial (Criminal Code, s 672.33).


After the court deems a person unfit to stand trial, a disposition hearing must be held by the Review Board within 45 days, taking into account the safety of the public and the needs of the accused. While the term in section 672.54 “least onerous and least restrictive” has been replaced by “necessary and appropriate”, the intent of the legislation has not changed, as explained under Disposition Hearings after NCRMD.  
After the court deems a person unfit to stand trial, a disposition hearing must be held by the Review Board within 45 days, taking into account the safety of the public and the needs of the accused. While the term in section 672.54 “least onerous and least restrictive” has been replaced by “necessary and appropriate”, the intent of the legislation has not changed, as explained under Disposition Hearings after NCRMD.  
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The BC Court of Appeal reviewed a Review Board decision regarding custody in a fitness case; ''Evers v British Columbia (Adult Forensic Psychiatric Services)'', 2009 BCCA 560. The BCAA stated that the Review Board erred in proceeding with a disposition hearing in the absence of the accused without first attempting to ensure the accused’s presence by issuing a warrant or allowing a short adjournment.  Further, the court stated that fear of non-compliance with medical treatment cannot be the main objective motivating a custody disposition order, nor can the Review Board impose treatment as a condition on the accused.
The BC Court of Appeal reviewed a Review Board decision regarding custody in a fitness case; ''Evers v British Columbia (Adult Forensic Psychiatric Services)'', 2009 BCCA 560. The BCAA stated that the Review Board erred in proceeding with a disposition hearing in the absence of the accused without first attempting to ensure the accused’s presence by issuing a warrant or allowing a short adjournment.  Further, the court stated that fear of non-compliance with medical treatment cannot be the main objective motivating a custody disposition order, nor can the Review Board impose treatment as a condition on the accused.


In ''R v Demers'', 2004 SCC 46, the court found that the former sections 672.33, 672.54 and 672.81(1) violated the Charter rights of permanently unfit, non-dangerous accused persons. The court wanted to ensure that an accused found unfit will not be detained unnecessarily when he or she poses no risk to the public. Pursuant to this decision, these sections have been amended.
In ''R v Demers'', 2004 SCC 46, the court found that the former sections 672.33, 672.54 and 672.81(1) violated the Charter rights of permanently unfit, non-dangerous accused persons. The court wanted to ensure that an accused found unfit will not be detained unnecessarily when they pose no risk to the public. Pursuant to this decision, these sections have been amended.


Now, a Review Board may make a recommendation to the court to enter a stay of proceedings if it has held a hearing and is of the opinion that the accused remains chronically unfit and does not pose a significant threat to public safety. Notice of intent to make such a recommendation must be given to all parties with a substantial interest in the proceedings (Criminal Code, s 672.851).
Now, a Review Board may make a recommendation to the court to enter a stay of proceedings if it has held a hearing and is of the opinion that the accused remains chronically unfit and does not pose a significant threat to public safety. Notice of intent to make such a recommendation must be given to all parties with a substantial interest in the proceedings (Criminal Code, s 672.851).
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An accused may be found “Not Criminally Responsible on account of a Mental Disorder” (NCRMD), if an accused is found to have been suffering from a mental illness at the time of the offence which resulted in:  
An accused may be found “Not Criminally Responsible on account of a Mental Disorder” (NCRMD), if an accused is found to have been suffering from a mental illness at the time of the offence which resulted in:  
*A lack of appreciation of the nature and quality of the offence (i.e. he or she could not foresee and measure the physical consequences of the act or  omission) (''R. v Cooper'' (1980), 1 S.C.R. 1140; or  
*A lack of appreciation of the nature and quality of the offence (i.e. they could not foresee and measure the physical consequences of the act or  omission) (''R v Cooper'' (1980), 1 SCR 114; or  
*A failure to realize that the act or omission was wrong (i.e. he or she did not know it was something that one should not do for moral or legal reasons  (''Chaulk v The Queen'' (1990), 3 S.C.R. 1303;  
*A failure to realize that the act or omission was wrong (i.e. they did not know it was something that one should not do for moral or legal reasons  (''Chaulk v The Queen'' (1990), 3 SCR 1303;  


This is a verdict distinct from either guilty or not guilty. If an accused is found NCRMD, the court can decide whether the accused will receive an absolute discharge, a conditional discharge, or a custody disposition to be detained in a psychiatric hospital. Alternately, and more often in practice, the court can defer this decision to the provincial Review Board designated under section 672.38 of the Criminal Code. If the accused is not found to be a significant threat to public safety (discussed below), he or she must be given an absolute discharge.
This is a verdict distinct from either guilty or not guilty. If an accused is found NCRMD, the court can decide whether the accused will receive an absolute discharge, a conditional discharge, or a custody disposition to be detained in a psychiatric hospital. Alternately, and more often in practice, the court can defer this decision to the provincial Review Board designated under section 672.38 of the Criminal Code. If the accused is not found to be a significant threat to public safety (discussed below), they must be given an absolute discharge.


When dealing with the question of the accused’s mental capacity for criminal responsibility, the court has much the same power to order an assessment to obtain evidence on this question (Criminal Code, s 672.11(b)) as it does with respect to an accused’s fitness to stand trial. Pre-trial detention of an accused while awaiting in-custody assessments was held to violate section 7 of the Charter by an Ontario court (''R v Hussein and Dwornik'' (2004), 191 CCC (3d) 113 (OSCJ) [''Hussein'']). However, ''Hussein'' was not followed in a more recent Ontario case (''Her Majesty the Queen in Right of Ontario v Phaneuf'' [Indexed as: ''Ontario v Phaneuf''] (2010), 104 OR (3d) 392 at para 19). The Ontario Court ruled that the relevant provisions in the Criminal Code, specifically s.672.11, cannot be interpreted as requiring accused individuals who are ordered to be assessed in custody in a hospital to be taken immediately to that hospital. It cannot be read as prohibiting their detainment in a detention centre pending transfer to the hospital. Accordingly, it was held that Hussein was wrongly decided.
When dealing with the question of the accused’s mental capacity for criminal responsibility, the court has much the same power to order an assessment to obtain evidence on this question (Criminal Code, s 672.11(b)) as it does with respect to an accused’s fitness to stand trial. Pre-trial detention of an accused while awaiting in-custody assessments was held to violate section 7 of the Charter by an Ontario court (''R v Hussein and Dwornik'' (2004), 191 CCC (3d) 113 (OSCJ) [''Hussein'']). However, ''Hussein'' was not followed in a more recent Ontario case (''Her Majesty the Queen in Right of Ontario v Phaneuf'' [Indexed as: ''Ontario v Phaneuf''] (2010), 104 OR (3d) 392 at para 19). The Ontario Court ruled that the relevant provisions in the Criminal Code, specifically s.672.11, cannot be interpreted as requiring accused individuals who are ordered to be assessed in custody in a hospital to be taken immediately to that hospital. It cannot be read as prohibiting their detainment in a detention centre pending transfer to the hospital. Accordingly, it was held that Hussein was wrongly decided.
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The accused is always entitled to raise a lack of mental capacity when facing criminal liability by calling evidence relating to it. The Crown may adduce evidence on the accused’s mental capacity for criminal responsibility where the accused has raised the issue or has attempted to raise a reasonable doubt using a defence of non-mental disorder automatism (a mental state lacking the voluntariness to commit the crime). Where the accused pleads not guilty, does not put mental capacity in issue and does not raise the defence of non-insane automatism, the court may allow the Crown to adduce evidence on the issue of mental capacity only after it has been determined that the accused committed the act or omission (''R v Swain'' (1991), 63 CCC (3d) 481 (SCC)).
The accused is always entitled to raise a lack of mental capacity when facing criminal liability by calling evidence relating to it. The Crown may adduce evidence on the accused’s mental capacity for criminal responsibility where the accused has raised the issue or has attempted to raise a reasonable doubt using a defence of non-mental disorder automatism (a mental state lacking the voluntariness to commit the crime). Where the accused pleads not guilty, does not put mental capacity in issue and does not raise the defence of non-insane automatism, the court may allow the Crown to adduce evidence on the issue of mental capacity only after it has been determined that the accused committed the act or omission (''R v Swain'' (1991), 63 CCC (3d) 481 (SCC)).


An accused is presumed to not suffer from a mental disorder that exempts him or her from criminal responsibility until the contrary is proven on a balance of probabilities (Criminal Code, s 16(2)). An official finding that the accused is NCRMD will only occur when the Crown has otherwise proven the guilt of the accused beyond a reasonable doubt, and the mental disorder exempting the accused from criminal responsibility is proven on a balance of probabilities. The burden of proof is on the party that raises the issue (Criminal Code, s 16(3)).
An accused is presumed to not suffer from a mental disorder that exempts them from criminal responsibility until the contrary is proven on a balance of probabilities (Criminal Code, s 16(2)). An official finding that the accused is NCRMD will only occur when the Crown has otherwise proven the guilt of the accused beyond a reasonable doubt, and the mental disorder exempting the accused from criminal responsibility is proven on a balance of probabilities. The burden of proof is on the party that raises the issue (Criminal Code, s 16(3)).


== C. Disposition Hearings After NCRMD ==
== C. Disposition Hearings After NCRMD ==
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*c) detained in custody in a psychiatric hospital subject to conditions considered appropriate by the court or review board.  
*c) detained in custody in a psychiatric hospital subject to conditions considered appropriate by the court or review board.  


With the passage of 2014 Bill C-14, discussed fully below, the court may also designate a person as a high-risk accused, and then the Review Board would only be able to make a narrow custody order. Amendments from Bill C-14 have also made changes to other sections of the Mental Disorder provisions of the Criminal Code. Some of them are highlighted below.
With the passage of Bill C-14 in 2014, discussed fully below, the court may also designate a person as a high-risk accused, and then the Review Board would only be able to make a narrow custody order. Amendments from Bill C-14 have also made changes to other sections of the Mental Disorder provisions of the Criminal Code. Some of them are highlighted below.


When the Review Board renders a decision under section 672.54, it must take into consideration “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.”  The 2014 Bill C-14 amendments have changed the wording from requiring the Review Board to make a decision that is “least onerous and least restrictive” to one that is “necessary and appropriate”. However, subsequent Review Board decisions and court decisions have confirmed that the intent and guiding principles from the Supreme Court of Canada case of ''Winko v the Director of the Forensic Psychiatric Hospital'' [1999] 2 SCR 625 [''Winko''] still apply. Therefore, the principle of making the least onerous and least restrictive order still applies to Review Board decisions.  For further related case law please see ''Ranieri (Re)'' 2015 ONCA 444; ''Re Osawe'', 2015 ONCA 280; ''McAnuff (Re)'' 2016 ONCA 280.
When the Review Board renders a decision under section 672.54, it must take into consideration “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.”  The 2014 Bill C-14 amendments have changed the wording from requiring the Review Board to make a decision that is “least onerous and least restrictive” to one that is “necessary and appropriate”. However, subsequent Review Board decisions and court decisions have confirmed that the intent and guiding principles from the Supreme Court of Canada case of ''Winko v the Director of the Forensic Psychiatric Hospital'' [1999] 2 SCR 625 [''Winko''] still apply. Therefore, the principle of making the least onerous and least restrictive order still applies to Review Board decisions.  For further related case law please see ''Ranieri (Re)'' 2015 ONCA 444; ''Re Osawe'', 2015 ONCA 280; ''McAnuff (Re)'' 2016 ONCA 280.
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{{REVIEWED LSLAP | date= July 29, 2019}}
{{REVIEWED LSLAP | date= August 14, 2020}}
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