Experienced Criminal Lawyers

How Mental Illness and Criminal Culpability Interconnect

In every society there are those who commit criminal acts due to mental illness. The criminal law has developed to address the legal issues to consider in these circumstances. People who are guilty of a crime are punished because they have committed an immoral act. When a person commits an offence but cannot understand the difference between right and wrong, then the immoral act is in question. This comes from the mens rea, the mental intent. The law has developed so that people who commit criminal acts in these circumstances are not punished but instead declared “not criminally responsible due to mental disorder”. Although the NCR accused is not punished this declaration recognizes that the crime was committed but not because the NCR accused chose to commit it.

Section 2 of the Criminal Code defines “mental disorder” as “disease of the mind.” These are legal terms not medical conclusions. Only a trier of fact (a judge or a jury) may conclude that an accused suffered from a mental disorder. Disease of the mind includes mental illness, disorders and mental impairment. The key question centres around how the human mind is working and its ability to understand the difference between right and wrong at the time of the alleged incident. However, this section excludes self-induced states of mental impairment caused by drugs and alcohol.

The party seeking this declaration should present evidence (including an expert opinion) to demonstrate “the cause, nature and symptoms of the abnormal condition”, how the condition is characterized medically and the impact on the mind at the time of the alleged incident.

If the party seeking the declaration of “not criminally responsible by reason of mental disorder is successful other steps and procedures follow this finding. This declaration does not mean that everyone with a mental illness can escape criminal responsibility for their actions. In order for this declaration to stand, the mental illness must have a clear and direct impact on the commission of the crime. In some cases, the illness may be temporary and only occur during the crime and in others, it may be permanent.

Furthermore, it’s important to distinguish between accused individuals who are mentally unfit to stand trial and people who claim that they should not be held criminally responsible for their actions. Mental fitness for trial is determined at the time of trial while criminal responsibility refers to the accused’s state of mind at the time that the crime was committed.

Once the declaration NCR is made, there are several options that are available to the judge. The Criminal Code permits a disposition hearing to take place in front of the Judge or the Judge may refer the matter to the Review Board for consideration. Disposition hearings include absolute or conditional discharges.

An absolute discharge means that the criminal matter has come to an end and the accused will not face any further restrictions or consequences. An absolute discharge can only be granted if the judge concludes the NCR accused no longer poses a significant threat to safety of the public. The Supreme Court of Canada’s decision in Winko v British Columbia (Forensic Psychiatric Institute) [1999] 2 SCR 625 is the leading decision on the legal interpretation of “significant threat.” The Court explained in this decision that significant threat means that the NCR accused poses a risk of serious physical or psychological harm to members of the public.

A conditional discharge is another option at a disposition hearing. It means that the NCR accused will be give specified liberties and usually will be allowed to live outside of an institution but under specified conditions. These conditions are aimed at managing any risk that is present in the NCR accused. However there are limitations on the conditions which include an inability to force the individual to engage specific treatment in order to receive a discharge.

Another option available to the judge or the Review Board is to confine the NCR accused in a hospital under specified conditions because the judge or Review Board has concluded the NCR accused poses a significant risk to society. These conditions are aimed at managing the mental condition and present risk. This disposition order will eventually allow for graduated levels of freedom within the hospital and eventually outside the hospital.

The Criminal Code funnels all NCR accused to a Review Board even if the judge makes the initial disposition. Until the NCR accused is discharged absolutely, his or her disposition and conditions will be reviewed on a regular basis, usually every 12 months.

It is important to understand how intricate the provisions within the Code are and the delicate timelines involved. Skilled and experienced counsel is critical when addressing these legal issues. The legal outcome from this NCR declaration can be life-long and in some cases longer than if the accused was convicted and sentenced outside of the NCR provisions. The manner in which a lawyer handles a case like this is critical because the potential severe impact.  Some lawyers take haphazard approaches and shoot from the hip in court. Other lawyers (such as the ones in our firm) strategically build the case with solid knowledge of the facts and sound legal analysis all of which is designed to persuade the judge or trier of fact to come to the same conclusion as the lawyer.