Mental Health and the Criminal Code (14:IX)

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on August 18, 2021.

A. Fitness to Stand Trial

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

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 if they are unable to communicate with counsel on account of mental illness. If the court reaches the verdict that the accused is unfit to stand trial, any plea that has been made will be set aside and the jury will be discharged (Criminal Code s 672.31). Under section 672.32, the accused may stand trial once they are fit to do so. For a detailed outline of the tests for 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 (Criminal Code s 672.23).

If a person is found unfit to stand trial, they may be detained in a mental health facility until they recover enough 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 a 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 two years afterward. The court may now extend the period for holding an inquiry where it is satisfied that such an extension is necessary to determine whether 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 condition and 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 below in C. Disposition Hearings after NCRMD.

The BC Court of Appeal considered 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 they pose no risk to the public. Pursuant to this decision, these sections have been amended.

A Review Board may now 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).

The Review Board, the prosecutor, or the accused may apply for an order of assessment of the accused’s mental condition if necessary to make a recommendation for a stay of proceedings, or to make a disposition if no recent assessment has been made (Criminal Code, s 672.121). A medical practitioner or any person designated by the Attorney General may also make an assessment. An assessment order cannot be used to detain an accused in custody unless it is necessary to assess the accused, or unless the accused is already in custody, or it is otherwise required.

An appeal from an order for a stay of proceedings may be allowed if the Court of Appeal finds the assessment order unreasonable or unsupported by evidence.

A recent case (R v JJG, (2014) BCSC 2497 at paras 17-27) considered the issue of whether statements made by an accused during the fitness to stand trial hearing are admissible in the trial. In this case, the accused made an admission of guilt during the fitness hearing. The court ruled that the statements were inadmissible at trial.

B. Criminal Responsibility

1. Defence of Mental Disorder – Criminal Code, Section 16

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 either:

• 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. 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. Alternatively, 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 addressing the matter 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.

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-mental disorder 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 ([https://www.canlii.org/en/ca/scc/doc/1991/1991canlii104/1991canlii104.html?autocompleteStr=R%20v%20Swain%2C%20%5B1991%5D%201%20SCR%20933&autocompletePos=1 R v Swain (1991), 63 CCC (3d) 481 (SCC)").

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 when 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

A finding of NCRMD ends criminal proceedings against the accused. There will then be a disposition hearing either in court or before the Review Board (Criminal Code s 672.38). Under s 672.54 a person found NCRMD may be:

• a) discharged absolutely where the review board or court finds that the accused is not a significant threat to the safety of the public;
• b) discharged subject to conditions considered appropriate by the court or review board; or
• c) detained in custody in a psychiatric hospital subject to conditions considered appropriate by the court or Review Board.

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. The amendments flowing from Bill C-14 have changed other sections of the Mental Disorder provisions of the Criminal Code, some of which are highlighted below.

When the Review Board renders a decision under section 672.54, it must consider “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.

The Review Board must assess cases in which a person is found NCRMD at least once per year if the person is still detained in a mental facility or is fulfilling conditions pursuant to the disposition hearing (Criminal Code, s 672.81). However, as a result of the operation of section 672.54, it is possible for individuals found NCRMD to be subjected to prolonged or indeterminate detention or supervision by the Review Board, even for committing relatively minor offences.

In response to a number of cases challenging the constitutionality of section 672.54, the Supreme Court in Winko rejected arguments that section 672.54 violates the Charter. According to Winko, a “significant risk to the safety of the public” means a real risk of physical or psychological harm to members of the public. The conduct giving rise to the harm must be criminal in nature. The process of determining whether the accused is a significant threat to public safety is non-adversarial, and the courts or Review Board may consider a broad range of evidence. This includes the accused’s past and expected course of treatment, present medical condition, past offences, plans for the future and any community support that exists. See Winko for a detailed application of section 672.54. Bill C-14, discussed fully below, codifies some of this decision, such as the definition of “significant harm”.

Two Supreme Court of Canada cases considered the “least onerous and least restrictive” requirement of s 672.54. In Pinet v St Thomas Psychiatric Hospital, [2003 SCJ No 66], it was held that the “least onerous and least restrictive” requirement applies not only to the bare choice among the three potential dispositions – absolute discharge, conditional discharge or custody in a designated hospital, but also to the particular conditions forming part of that disposition. In Penetanguishene Mental Health Center v Ontario (Attorney General), [2004 SCJ No 67], the court decided that this applied not only to the choice of the order, but also to the choice of appropriate conditions attached to the order, consideration of public protection, and maximisation of the accused’s liberties.

The Review Board’s powers were considered in Mazzei v BC (Director AFPS), [2006 SCC 7]. It has the power to place binding orders and conditions on any party to the Review Board hearing, including the director of the psychiatric hospital. The Review Board does not prescribe or administer treatment, but may supervise and require reconsideration of treatment provided. Treatment is incidental to the objectives and focus on public safety and reintegration, and the Review Board aids in only these two goals.

For information on pleading “Mental Disorder” and “Non-Mental Disorder” automatism, please consult the Continuing Legal Education Society’s course “Criminal Law and Mental Health Issues”.

1. Recent Changes

Bill C-14, or the Not Criminally Responsible Reform Act, SC 2014, c 6 [NCRRA], came into force on July 11, 2014. This legislation was intended to strengthen the Criminal Code’s decision-making process relating to findings of NCRMD, and thereby make public safety the primary consideration, enhance victim safety, and provide victims with a stronger voice in the process.

The primary function of the amendments was to create a new designation of “high-risk accused”. Section 672.64 of the Criminal Code allows the court to designate a person who was found NCRMD to also be a high-risk accused. This designation is available when the offence was a serious personal injury offence, as defined in section 672.81(1.3), committed by an accused who was over 18 at the time of the offence. One of two additional factors must also be present. The first of these factors is a finding by the court that there is a substantial likelihood that the accused will use violence that could endanger the life or safety of another person. The second factor is a finding by the court that the acts underlying the offence were of a brutal nature, indicating a risk of grave physical or psychological harm to another person.

When deciding whether to render this designation, the court considers the factors outlined in section 672.64(2) of the Criminal Code. These factors include the nature of the offence, the accused’s current mental state, any patterns of offence-related conduct, and expert opinion. Once a person is found to be a “high-risk accused”, they are subject to mandatory hospital detention and may have increased time between Review Board hearings.

In order for the high-risk accused designation to be removed, the Review Board must first refer the finding to a superior court. The court may only revoke the designation if satisfied that there is not a substantial likelihood that the accused will use violence that could endanger the life or safety of another person.

Bill C-14 also aimed to improve victim’s rights, by providing notice to victims of the intended place of residence of any NCRMD accused who receives an absolute or conditional discharge. The victim is informed of the general location where the offender resides, but not the specific address. Furthermore, when the high-risk status of an accused is under review by the court, victims may file impact statements which must then be considered by the court.

Significant criticism has been directed at these provisions prior to their coming into force, suggesting that they will do little to improve the rights and safety of victims, and that they are unnecessarily punitive in nature. It has been argued that by placing the “high-risk” designation in the hands of the courts, the ability for the Review Board and hospitals to appropriately assist, treat and manage NCMRD patients will be diminished. For a full discussion of these concerns, see Lisa Grantham’s “Bill C-14: A Step Backwards for the Rights of Mentally Disordered Offenders in the Canadian Criminal Justice System”. In spite of the criticisms directed at Bill C-14, there have not been any significant changes to the Review Board or its authority since the new provisions came into force.

In British Columbia, there is no person currently designated as a “high-risk accused”. The only BC case involving a determination of “high-risk accused” status is R v Schoenborn, (2010) BSCS 220 [Schoenborn]. The accused was found NCRMD and was currently held in a mental health facility. In April 2015, the BC Review Board granted Schoenborn escorted community access at the discretion of the Director of the facility in order to aid his rehabilitation. In 2017, the Attorney General of BC applied unsuccessfully to the BC Supreme Court to have Schoenborn designated as a “high-risk accused”. After many days of evidence in court, the judge found that Schoenborn did not meet the criteria for a “high risk accused” (R v Schoenborn, 2017 BCSC 1556.

There is some discrepancy between the provinces as to whether the “high-risk accused” designation can be applied retroactively. In British Columbia, it has been found that applying a retroactive “high risk” designation to trials that occurred before the legislation came into effect is not unconstitutional (Schoenborn 2015 BCSC 2254). However, Quebec courts made the opposite determination in 2015 (see R v CR, 2015 JQ No 2448).

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