Criminal Law Notebook

Mental Illness

This page was last substantively updated or reviewed January 2015. (Rev. # 96362)

Introduction

An accused's mental health condition may be relevant to a proceedings in several ways. An accused who is "unable on account of mental disorder to conduct a defence" or is unable "to instruct counsel" may be unfit to stand trial.[1] An accused who was at the time of the offence "incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong" may be subject to a finding of "Not Criminally Responsible".

A distinction between the two broad categories of how mental illness may affect criminal proceedings, is to consider that NCR relates to mental state of accused at the time of the offence, while fitness relates to the mental state of the accused at the time of the proceedings.

Finally, certain jurisdictions have a specialized mental health court system that diverts certain cases that involve offences that sufficiently relate to a mental illness and are amendable to some form of treatment and supervision.

Provincial Assessments

Certain provinces have legislation that permits court ordered assessments of the accused where he has reason to believe he has a mental disorder.[2]

  1. ↑ see PART XX.1
  2. ↑ e.g. s. 21 of the Mental Health Act, RSO 1990, c M.7, s 21

Taxonomy and Terminology

the evaluation of psychiatric conditions is generally done using the standard set out in the "Diagnostic and Statistical Manual of Mental Disorders" (DSM–5).[1]

The introduction of DSM-5 in 2013 removed to the familiar "multiaxial" analysis approach to assessments. Instead, under the DSM-5 disorders are grouped into ab "internalizing group", relating to internalized conditions like depression or schizophrenia, and "externalizing group", relating to externalize conditions including substance abuse and impulsivity.

Diagnoses include:

  • Adjustment disorder
  • Alcohol use disorder
  • Anxiety disorders:
    • social anxiety
    • panic disorder
    • agoraphobia
    • generalized anxiety disorder
  • Attention Deficit or Hyperactivity disorder
  • autism spectrum disorder
  • bipolar disorder
  • delirium
  • dementia
  • depressive disorder
  • impulse control and conduct disorders
  • disassociative disorder
  • fetal alcohol spectrum disorder
  • Huntington's disease
  • hoarding disorder
  • intellectual disability
  • facetious disorder
  • obsessive-compulsive disorder
  • paraphilia disorder
  • biastophilia disorder[2]
  • personality disorder[3]
  • posttraumatic stress disorder
  • psychopathy
  • schizophrenia spectrum disorder and related


  1. ↑ for further details see Bloom and Schneider, "mental disorder and the law: a primer for legal and mental health professionals" (2nd edition), Chapter 1.
  2. ↑ R v Miller, 2015 NSCA 19 (CanLII) (working hyperlinks pending), per Fichaud JA, at para 6
  3. ↑ R v Kudlak, 2011 NWTSC 29 (CanLII) per Vertes J, at para 50

Topics

Special Consequences for Mental Disorders
Evidence
Review Board
Young Offenders

Misc Definitions Relating to Mental Disorders

PART XX.1 Mental Disorder
Interpretation
Definitions

672.1 (1) In this Part,
"accused" includes a defendant in summary conviction proceedings and an accused in respect of whom a verdict of not criminally responsible on account of mental disorder has been rendered; (accusé)
"assessment" means an assessment by a medical practitioner or any other person who has been designated by the Attorney General as being qualified to conduct an assessment of the mental condition of the accused under an assessment order made under section 672.11 [assessment orders defined] or 672.121 [review board may order assessment], and any incidental observation or examination of the accused; (évaluation)
"chairperson" includes any alternate that the chairperson of a Review Board may designate to act on the chairperson’s behalf; (président)
"court" includes a summary conviction court as defined in section 785 [summary convictions – definitions], a judge, a justice and a judge of the court of appeal as defined in section 673 [Pt. XXI — appeals — definitions]; (tribunal)
"disposition" means an order made by a court or Review Board under section 672.54 [available dispositions], an order made by a court under section 672.58 [treatment disposition] or a finding made by a court under subsection 672.64(1) [finding re high-risk accused – requirements]; (décision)
"dual status offender" means an offender who is subject to a sentence of imprisonment in respect of one offence and a custodial disposition under paragraph 672.54(c) [order of detention to a hospital] in respect of another offence; (contrevenant à double statut)
"high-risk accused" means an accused who is found to be a high-risk accused by a court under subsection 672.64(1) [finding re high-risk accused – requirements]; (accusé à haut risque)
"hospital" means a place in a province that is designated by the Minister of Health for the province for the custody, treatment or assessment of an accused in respect of whom an assessment order, a disposition or a placement decision is made; (hôpital)
"medical practitioner" means a person who is entitled to practise medicine by the laws of a province; (médecin)
"party", in relation to proceedings of a court or Review Board to make or review a disposition, means

(a) the accused,
(b) the person in charge of the hospital where the accused is detained or is to attend pursuant to an assessment order or a disposition,
(c) an Attorney General designated by the court or Review Board under subsection 672.5(3) [Attorneys General may be parties],
(d) any interested person designated by the court or Review Board under subsection 672.5(4) [interested person may be a party], or
(e) where the disposition is to be made by a court, the prosecutor of the charge against the accused; (parties)

"placement decision" means a decision by a Review Board under subsection 672.68(2) [placement decision by Review Board] as to the place of custody of a dual status offender; (ordonnance de placement)
"prescribed" means prescribed by regulations made by the Governor in Council under section 672.95 [power to make regulations re mental disorder provisions]; (Version anglaise seulement)
"Review Board" means the Review Board established or designated for a province pursuant to subsection 672.38(1) [authority to establish a review board]; (commission d’examen)
"verdict of not criminally responsible on account of mental disorder" means a verdict that the accused committed the act or made the omission that formed the basis of the offence with which the accused is charged but is not criminally responsible on account of mental disorder. (verdict de non-responsabilité criminelle pour cause de troubles mentaux)

Reference

(2) For the purposes of subsections 672.5(3) [Attorneys General may be parties] and (5) [notice of hearing], paragraph 672.86(1)(b) [interprovincial transfers – consent of AG] and subsections 672.86(2) [interprovincial transfers – accused in custody] and (2.1) [interprovincial transfers – transfer if accused not in custody], 672.88(2) [review board of receiving province – agreement] and 672.89(2) [other interprovincial transfers – agreement], in respect of a territory or proceedings commenced at the instance of the Government of Canada and conducted by or on behalf of that Government, a reference to the Attorney General of a province shall be read as a reference to the Attorney General of Canada.
1991, c. 43, s. 4; 2005, c. 22, s. 1; 2014, c. 6, s. 2.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 672.1(1) and (2)


Defined terms: "mental disorder" (s. 2), "Minister" (s. 672.68(1)), and "unfit to stand trial" (s. 2)

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