Not Criminally Responsible On Account of Mental Disorder
Contrary to popular culture, a finding of not criminally responsible (by reason of mental disorder) is not a free pass out of the criminal justice system. The concept of not criminally responsible on account of mental disorder (NCR), or what was at one time referred to as the insanity defence, is codified in section 16 of the Criminal Code of Canada.
Defining Not Criminally Responsible
Section 16 of the Criminal Code states that:
16 (1) No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.
(2) Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection (1), until the contrary is proved on the balance of probabilities.
(3) The burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal responsibility is on the party that raises the issue.
In R. v. O’Neill 2016 ONSC 1841, the court at paragraph 34 quoted from the Supreme Court of Canada’s earlier judgement in R. v. Oommen,  2 S.C.R. 507 that: “A review of the history of our insanity provision and the cases indicates that the inquiry focuses not on general capacity to know right from wrong, but rather on the ability to know that a particular act was wrong in the circumstances. The accused must possess the intellectual ability to know right from wrong in an abstract sense. But he or she must also possess the ability to apply that knowledge in a rational way to the alleged criminal act. The wording of s. 16(1) suggests this result. It proclaims that the focus is not a general capacity to understand that the act, say of killing, is wrong, but rather the act “committed” or omission “made”, i.e. the particular act or omission in the criminal proceedings.”
Who determines a Finding of Not Criminally Responsible?
A finding of Not Criminally Responsible On Account of Mental Disorder (NCR) is made by a judge (or jury) pursuant to section 672.34 of the Criminal Code which states:
672.34 Where the jury, or the judge or provincial court judge where there is no jury, finds that an accused committed the act or made the omission that formed the basis of the offence charged, but was at the time suffering from mental disorder so as to be exempt from criminal responsibility by virtue of subsection 16(1), the jury or the judge shall render a verdict that the accused committed the act or made the omission but is not criminally responsible on account of mental disorder.
672.35 Where a verdict of not criminally responsible on account of mental disorder is rendered, the accused shall not be found guilty or convicted of the offence, but
(a) the accused may plead autrefois acquit in respect of any subsequent charge relating to that offence;
(b) any court may take the verdict into account in considering an application for judicial interim release or in considering what dispositions to make or sentence to impose for any other offence; and
(c) the Parole Board of Canada or any provincial parole board may take the verdict into account in considering an application by the accused for parole or for a record suspension under the Criminal Records Act in respect of any other offence.
Consequences of a Finding of Not Criminally Responsible
The finding of NCR has the following consequences:
- The person would either be dealt with by the Court pursuant to section 672.45 or more likely be subject to the jurisdiction of the Ontario Review Board established pursuant to section 672.38 of the Criminal Code.
- The person would be subject to a disposition hearing to determine what happens next pursuant to section 672.54
672.54 When a court or Review Board makes a disposition under subsection 672.45(2), section 672.47, subsection 672.64(3) or section 672.83 or 672.84, it shall, taking into account the safety of the public, which is the paramount consideration, the mental condition of the accused, the reintegration of the accused into society and the other needs of the accused, make one of the following dispositions that is necessary and appropriate in the circumstances:
(a) where a verdict of not criminally responsible on account of mental disorder has been rendered in respect of the accused and, in the opinion of the court or Review Board, the accused is not a significant threat to the safety of the public, by order, direct that the accused be discharged absolutely;
(b) by order, direct that the accused be discharged subject to such conditions as the court or Review Board considers appropriate; or
(c) by order, direct that the accused be detained in custody in a hospital, subject to such conditions as the court or Review Board considers appropriate.
- The person would have the hearing either in Court, or if under the jurisdiction of the ORB: at a hospital or other facility.
- The person may have a treatment order made against them.
- There would be a disposition hearing within 45 days to determine the disposition pursuant to section 672.47, of:
- The ORB could order that they be released with conditions into the community
- The ORB could order that they remain in the hospital under strict conditions
- The ORB could order that they remain in the hospital but be given the privilege of either escorted or unescorted passes in the community along with other conditions.
- The person would remain under the jurisdiction of the ORB until they receive an absolute discharge because they are not a threat to the community. The absolute discharge would mean no criminal record.
- The ORB would hold a new hearing annually or earlier if the hospital asks for it.
- The person would remain in the hospital or other facility indefinitely until the ORB changes the conditions or discharges them.
A person found NCR may be under the jurisdiction of the ORB for many years before finally receiving an absolute discharge. For this reason, an accused person must consider very carefully as to whether this defence is an appropriate option for them.
In R. v. O’Neill 2016 ONSC 1841, the court stated at paragraph 6 that “However, the consequences of an NCRMD finding are always very serious. Typically, they result in significant deprivations of liberty, sometimes involving lifelong supervision ..”
Factors That Must Be Considered
So, how does a court determine whether an accused person is not criminally responsible for the offence of which they have been criminally charged? The answer lies in section 672.11 where the Court makes an assessment order for a psychiatrist to provide a report to the Court.
Section 672.11 reads as follows:
672.11 A court having jurisdiction over an accused in respect of an offence may order an assessment of the mental condition of the accused, if it has reasonable grounds to believe that such evidence is necessary to determine
(a) whether the accused is unfit to stand trial;
(b) whether the accused was, at the time of the commission of the alleged offence, suffering from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection 16(1);
(c) whether the balance of the mind of the accused was disturbed at the time of commission of the alleged offence, where the accused is a female person charged with an offence arising out of the death of her newly-born child;
(d) the appropriate disposition to be made, where a verdict of not criminally responsible on account of mental disorder or unfit to stand trial has been rendered in respect of the accused;
(d.1) whether a finding that the accused is a high-risk accused should be revoked under subsection 672.84(3); or
(e) whether an order should be made under section 672.851 for a stay of proceedings, where a verdict of unfit to stand trial has been rendered against the accused.
Where court may order assessment
672.12 (1) The court may make an assessment order at any stage of proceedings against the accused of its own motion, on application of the accused or, subject to subsections (2) and (3), on application of the prosecutor.
(3) Where the prosecutor applies for an assessment in order to determine whether the accused was suffering from a mental disorder at the time of the offence so as to be exempt from criminal responsibility, the court may only order the assessment if
(a) the accused puts his or her mental capacity for criminal intent into issue; or
(b) the prosecutor satisfies the court that there are reasonable grounds to doubt that the accused is criminally responsible for the alleged offence, on account of mental disorder.
672.121 The Review Board that has jurisdiction over an accused found not criminally responsible on account of mental disorder or unfit to stand trial may order an assessment of the mental condition of the accused of its own motion or on application of the prosecutor or the accused, if it has reasonable grounds to believe that such evidence is necessary to
(a) make a recommendation to the court under subsection 672.851(1);
(b) make a disposition under section 672.54 in one of the following circumstances:
(i) no assessment report on the mental condition of the accused is available,
(ii) no assessment of the mental condition of the accused has been conducted in the last twelve months, or
(iii) the accused has been transferred from another province under section 672.86; or
(c) determine whether to refer to the court for review under subsection 672.84(1) a finding that an accused is a high-risk accused.
Note that the prosecutor has a limitation under section 672.12(3) on their ability to apply to a Court for an assessment order. It is only when an accused puts their mental capacity in issue or the prosecutor has sufficient other evidence that the prosecutor can apply to a Court for an assessment order.
R. v. Grant 2018 ONSC 3581, is an example where the prosecutor applied to have an accused found NCR and subsequently applied to the Court to have him declared a high-risk offender pursuant to section 672.64(1)(a) of the Criminal Code. The consequences for Mr. Grant were that he would be under the supervision of the ORB in a hospital setting indefinitely.
The assessment order is the pre-requisite to a finding by a Court that an accused person is NCR. If an accused does not wish to avail themselves of the defence, they must be very careful not to disclose any information to the prosecutor which may allow the prosecutor to apply to the Court for an assessment order. Once an assessment order has been made, it will be very difficult, if not impossible, for an accused person to control the process any further.
In R. v Boekwa, 2017 ONSC 2848 at paragraph 4 is another example where the prosecutor asked the Court for an NCR assessment “Following the findings of guilt, Crown counsel asked for an order under s. 672.11(b) of the Criminal Code, requiring Ms. Boekwa to undergo an assessment into her mental condition in order to determine whether, at the time of the commission of the offences, she was suffering from a mental disorder such that it would exempt her from criminal responsibility.”
While a defence of not criminally responsible on account of mental disorder can be an appropriate defence in some circumstances, it is fraught with very real and serious consequences to a person accused of a criminal offence. In some instances, the consequences of experiencing a serious limitation on their liberty can last for many years longer than if an accused person is found guilty of the offence and serves whatever sentence in imposed by a Court.
Considerations in Determining Not Criminally Responsible
As to what considerations apply to determining whether an accused person is NCR, not every case is obvious.
In R. v. Goudreau 2019 ONCA 964, the Ontario Court of Appeal ruled that an accused taking out an insurance policy was an irrelevant consideration to the jury’s role in determining whether the accused was NCR. The court stated at paragraph 46 that “The jury’s question was clear and unambiguous. It sought information about the consequences of an NCR verdict. Such information was irrelevant to its task …”
Not all acts of mental disorder will rise to the level required for an NCR verdict. The Court in R. v. Fell, 2003 CanLII 49919 (ON SC) grappled with this issue at length and concluded at paragraph 482 that:
 To summarize:
(a) An accused will not be criminally responsible for an act committed while he was suffering from a mental disorder that rendered him incapable of knowing that the act was contrary to law, or that the act breaches the standard of moral conduct that society expects of its members.
(b) It is not sufficient to decide that the accused’s act was a result of a delusion. Even if the act was motivated by a delusion, the accused will be convicted if he was capable of knowing, in spite of such delusion, that the act in the particular circumstances would have been morally condemned by reasonable members of society.
(c) The inquiry focuses not on general capacity to know right from wrong, but rather on the ability to know that a particular act was wrong in the circumstances. The accused must possess the intellectual ability to know right from wrong in an abstract sense. But he or she must also possess the ability to apply that knowledge in a rational way to the alleged criminal act. The focus is not a general capacity to understand that the act, say of killing, is wrong, but rather the act ”committed” or omission ”made”, i.e., the particular act or omission at issue in the criminal proceedings.
(d) The crux of the inquiry is whether the accused lacks the capacity to rationally decide whether the act is right or wrong and hence to make a rational choice about whether to do it or not. The inability to make a rational choice may result from a variety of mental dysfunctions. These include delusions which make the accused perceive an act which is wrong as right or justifiable, and a disordered condition of the mind which deprives the accused of the ability to rationally evaluate what he is doing.
In the event that the NCR defence is not viable, there may be circumstances in which the accused person has a diminished responsibility for their actions that led to the criminal charges. The concept of diminished responsibility and how it relates to the NCR defence is explored by Nikos Harris, “The Utility of a Diminished Responsibility Defence: Can an Accused be ‘Half Responsible’ for a Murder?” (2002) 60 Advocate (B.C.) 211 at 216 which is excerpted at page 70 of Monica Pauls, Monetta Bailey and Sheryl Pearson, Legislation, Existing Protocols and Best Practices Training for Service Providers and Caregivers of People with Developmental Disabilities in the Criminal Justice System, Canadian Research Institute for Law and the Family, 2006 CanLIIDocs 30:
“The concept of diminished responsibility reflects the reality that there are wide variations in the mental and physical capacities of individuals and that this variation is relevant to criminal responsibility for unlawful conduct. While the capacity of some individuals will be wholly unimpaired at the time of unlawful conduct, the capacity of others may be impaired to some degree or completely impaired. The doctrine of diminished responsibility presumes that where an individual is not wholly unimpaired, the individual cannot be wholly responsible for their harmful conduct.”
A finding of diminished responsibility may result in reduction in the seriousness of the offence for which an accused is convicted and mitigate the eventual sentence that a Court may impose. Whether this is a viable defence strategy will depend on the evidence that in your particular case.
The decision of whether to exercise the option of a defence of not criminally responsible on account of mental disorder is a difficult one. It should only be considered after a thorough discussion with your lawyer about the particular circumstances surrounding your criminal charges and the consequences of each of your options.
Hans John Kalina is a defence lawyer with the Law Office of Kalina & Tejpal. He can be reached at (416) 900-6999 or at firstname.lastname@example.org