Not Criminally Responsible Due to Mental Illness

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One of the reasons why people are punished when they are convicted of a crime is because they chose to commit an immoral act. However, some people cannot tell right from wrong due to mental illness. In Canada, we have decided that these people should be treated for their illness instead of punished. Such people are declared not criminally responsible for their crimes due to their mental illness.

What does a verdict of “Not Criminally Responsible” mean?

People sometimes commit crimes when they cannot understand the consequences of their actions or because they are unable to tell right from wrong. Instead of punishing them, a judge or jury can declare them not criminally responsible for their actions due to a mental illness. This is not an acquittal. However, it is a recognition that the accused committed the crime but that they should not be punished because they did not “choose” to commit the crime.  

For example, applying force to someone (touching) without their consent is assault. However, someone who is experiencing a mental health crisis may have a break from reality and accidentally harm someone. Since they were not aware that they were in fact assaulting someone, they could be declared not criminally responsible for their actions.

This does not mean that everyone with a mental illness can escape criminal responsibility for their actions. The mental illness must have a clear and direct impact on the commission of the crime. This means it either made them unaware of the physical consequences of their actions or unable to tell right from wrong. In some cases, the illness may be temporary and only occur during the crime and in others, it may be permanent.

It’s important to distinguish between people 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. For more on mental fitness, please see our article.

If the accused chooses to become intoxicated (drugs, alcohol, etc.) and then commits certain crimes like murder, they cannot ask a judge or jury to declare them not criminally responsible for their actions.

The judge and jury decide whether the accused is criminally responsible due to mental illness

At the end of a criminal trial, the judge and jury must decide whether the accused committed the crime. If they are convinced beyond a reasonable doubt, the accused will normally be convicted of the crime.

However, the process is different when the accused claims that they are not criminally responsible due to their mental illness. Once the judge or jury decides that the accused committed the crime, before convicting the accused, they will examine what role the accused’s mental health played when the accused committed the crime.

The accused must prove that they are not criminally responsible for their actions due to their mental illness. If the accused does not convince the judge or jury that their mental illness prevented them from understanding the consequences of their actions or knowing right from wrong when they committed the crime, they will be convicted and sentenced normally.

If the judge or jury is convinced that the accused was unable to understand the consequences of their actions or was unable to tell right from wrong, the judge or jury will declare the accused not criminally responsible. This means that the court believes that the accused committed the crime but that should not be punished.

The role of medical experts

Both the accused and the prosecution will generally present medical experts who have examined the accused. These medical experts are very important in helping the judge or jury decide whether the accused was able to appreciate the nature of their acts at the time of the crime, because judges and jury members are not medical experts.

What are the consequences of being declared not criminally responsible?

Once the accused is declared not criminally responsible, they will be placed in the care of the Commission d’examen des troubles mentaux (CETM or review board for mental disorder) to be assessed. The CETM’s mission is to supervise people who are declared not criminally responsible in order to protect the public.

After the accused is declared not criminally responsible, the judge will sometimes conduct a “disposition hearing”. This hearing will decide what happens to the accused. The judge’s decision will be reviewed by the CETM. If the judge does not decide, then the CETM will make the decision. There are three possible outcomes of a disposition hearing.

A government survey has found that between 2012-2016, a very small percentage of people (0.09%) accused of a crime were found not criminally responsible due to mental illness.

Option 1 – The accused will be discharged absolutely

An absolute discharge means that the accused will be free to go and will not face any further restrictions or consequences.

An absolute discharge is only granted if the judge is convinced that the accused does not pose a significant threat to society. Significant threat means a risk of serious physical or psychological harm to members of the public, including the victim or to any children.

Option 2 – The accused will be discharged conditionally

A conditional discharge means that the accused will be allowed to live in society, but under certain conditions. Typically, these conditions are meant to manage any risk that the accused poses to society. For example, the accused might be required to live in a certain place or follow certain rules.

However, it’s important to note that the accused cannot be forced to undergo a treatment in order to receive a discharge.

Option 3 – The accused will be confined in a hospital.

If the accused poses a significant risk, they will be ordered confined to a hospital under conditions which are meant to help manage their condition. Depending on the accused’s condition and risk, the disposition order will call for different levels of freedom within the hospital. For instance, the accused may be allowed to attend therapy outside the hospital, with or without an escort. Or, in more serious cases, the accused will be put into a secured forensic unit to manage their risk.

The accused’s disposition is reviewed regularly

If the accused is not discharged absolutely, their disposition will be automatically reviewed every 12 months.  This is done to monitor the accused’s mental health. In some cases, the accused may recover, in which case they may qualify for a conditional discharge and eventually an absolute discharge. However, some people may never recover and will remain under the CETM’s supervision long-term.

Victims can participate in disposition hearings

Victims can ask to be informed about any disposition hearings and have the right to present a victim impact statement at the hearing. Victims can also ask for their names and other identifying information to be protected by a publication ban.

For more information, visit our article on victim impact statements.