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 31 July 2026.

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). The burden of proof is on whoever raises the issue, either the accused or Crown counsel, (Criminal Code, s 672.23(2)).

An accused is deemed “unfit to stand trial” under section 2 of the Criminal Code if they are incapable of:

understanding the nature or object of the proceedings;
understanding the 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 test for fitness, see R. v. Bharwani, 2025 SCC 26 [Bharwani] which elaborates on the test established in R v Taylor (1992), 77 CCC (3d) 551. The fitness test requires the accused to have both:

“a reality-based understanding of the nature and object and possible consequences of the proceedings”; and
a capacity to make decisions based on an understanding of the options available to them and the possible consequences of each option.

The courts have emphasized that an accused must be capable of meaningfully participating in the proceedings and communicating with counsel to seek and receive effective legal advice (R. v. Daley, 2019 NBCA 89; R. v. Morrissey, 2007 ONCA 770).

Issues of of fitness and NCRMD are most often resolved by assessments ordered under section 672.11.

The court may order a trial 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).

R v JJG, 2014 BCSC 2497 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 (paras 17-27).

The court in British Columbia (Adult Forensic Psychiatric Services) v Noddle, 2023 BCCA 396 confirmed that when a finding of fitness occurs the Review Board is required to return the Accused to court for trial without making a new disposition. Any existing orders, including bail, custody, or a previous Review Board disposition, remain in effect. The only exception is where the accused is found to be "fit but fragile" under s. 672.49 of the Criminal Code.

Section 672.49 allows the Review Board to order an Accused be held in custody in a Forensic Psychiatric Hospital until the Court makes a determination of fitness, if the Review Board has reasonable grounds to believe the accused would become unfit to stand trial if released. This exception is only available on the Accused’s first appearance before the Review Board after the Court has found them unfit (Criminal Code, ss 672.47, 672.49(1)).

B. Detention and Assessment

If a person is found unfit to stand trial, they may be detained in a mental health facility until they recover enough 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)). R v Conception, 2014 SCC 60, confirmed that hospital consent is required for the disposition order (at para 3).

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.

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. For further details see C. Disposition Hearings after NCRMD.

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).

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 BCCA 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.

1. Stay of Proceedings

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. The threshold for determining there is ‘no significant threat’ is difficult standard to meet and it should not be assumed an unfit finding will lead to a stay of proceedings. 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.

In R v Demers, 2004 SCC 46, the court found that the former sections 672.33, 672.54, and 672.81(1) of the Criminal Code 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.

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.

2. Review Board Hearings and Dispositions

Section 672.47 of the Criminal Code states that where a verdict of not criminally responsible due to mental illness or unfit to stand trial is rendered, and where the court makes no disposition regarding the accused, the Review Board must – no later than 45 days after the verdict – hold a hearing and make a disposition.

Section 672.48(1) of the Criminal Code builds upon this by stating that the Review Board, when making or reviewing the disposition of an accused found unfit to stand trial, must determine whether the accused is fit to stand trial at the time of the hearing.

If the accused is found fit to stand trial, the Review Board will order the accused sent back to court, and the court will render a verdict. Additionally, if the chairperson of a review board is of the opinion that the accused is fit to stand trial and that the Review Board cannot make or review the accused’s disposition within a reasonable period, then the chairperson may, with consent from the accused (or from the hospital head, if the accused is being detained), order the accused sent back to court to determine whether the accused is unfit to stand trial ( Criminal Code, 672.48(2)(3)).

The court in Noddle held that where an accused is fit to stand trial and is not fragile, the Review Board does not have the jurisdiction to order their detention at the FPH.

Section 672.49(1) of the Criminal Code states that in a disposition made pursuant to section 672.49(2) adds that the Review Board or chairperson must send a copy of a disposition made pursuant to section 672.47 immediately to the court that has jurisdiction over the accused, and to the Attorney General of the province where the accused is being tried.

C. Criminal Responsibility - Defence of Mental Disorder

An accused may be found “Not Criminally Responsible on account of a Mental Disorder” (NCRMD) under section 16 Defence of Mental Disorder in the Criminal Code if they are 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. 1149; 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. Defence counsel should be aware that the result of an NCRMD ruling to the Accused is not proportional to the offence, and that confinement could potentially be indefinite. The standard is whether the accused is considered a significant risk to the public by the Review Board.

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. In Ontario v. Phaneuf, 2010 ONCA 901, the 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.

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 (R v Swain, [1991] 1 SCR 933).

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)).

D. 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 section 672.54, a person found NCRMD may be:

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

1. Factors considered by the Review Board

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 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 principles established in Winko v British Columbia (Forensic Psychiatric Institute), [1999] 2 SCR 625 [Winko] still apply. Accordingly, the Review Board must still impose the least restrictive disposition consistent with public safety. For further related case law please see Ranieri (Re) 2015 ONCA 444; Osawe (Re), 2015 ONCA 280; McAnuff (Re) 2016 ONCA 280.

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, 2004 SCC 21, 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 Centre v Ontario (Attorney General), 2004 SCC 20, 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 maximization of the accused’s liberties.

In Winko, the Supreme Court rejected arguments that section 672.54 violates the Charter. The court states “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 supports that exist.

Gladue Reports, which are used to provide cultural and historical context to judges for Indigenous accused persons can also be used in Review Board hearings and may note community supports. The BC First Nations Justice Council has provincial responsibility for Gladue services. For further information see here.

Impact of Race and Culture Assessments (IRAC) can offer similar context for racialized accused persons. Legal Aid is the provincial provider of IRAC reports. For further information see here.

2. High Risk Accused

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.

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 is 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.

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.

Victims will be notified of the intended 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.

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 BCSC 220 [Schoenborn]. The accused was found NCRMD and was held in a mental health facility. 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 (R v Schoenborn 2015 BCSC 2254). However, Quebec courts made the opposite determination in 2015 (see R c CR, 2015 QCCQ 2299).

3. Annual Review

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.

4. Review Board Powers and Charter Considerations

The Review Board does not prescribe or administer treatment, but it 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 these two goals.

In Mazzei v British Columbia (Director of Adult Forensic Psychiatric), 2006 SCC 7 at paras 46–47 [Mazzei], it was decided that the Review Boards under Part XX.1, Mental Disorder provisions of the Criminal Code of Canada have the power to issue binding orders to parties other than the accused. This power can be exercised on the director of a hospital who is party to the proceedings; although the Review Board cannot dictate a specific treatment, it can impose conditions regarding treatment. This power was granted to ensure that treatments are culturally appropriate. In Mazzei, conditions were imposed regarding drug and alcohol rehabilitation to ensure that the process was appropriately adjusted to the individual’s First Nations’ ancestry.

R v Conway, 2010 SCC 22 at para 78 [Conway] responded to the issue of whether the Ontario Review Board (ORB) has the authority to grant remedies per section 24(1) of the Charter, under the mental disorder provisions of the Criminal Code. The Supreme Court held that Review Boards are courts of competent jurisdiction that may grant Charter remedies under section 24(1), but only within the powers granted by legislation. While they may determine that a provision is unconstitutional, they cannot strike it down or grant remedies beyond their statutory authority.

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.”.