Crimes and Tickets

What Happens When Someone Accused of a Crime Has a Mental Illness?


When someone accused of a crime suffers from mental health issues that prevent them from understanding what is happening, they can be declared mentally unfit to stand trial. Who makes that decision and what are the consequences?

Assessing an accused’s mental fitness for trial

To stand trial for a crime, the accused must be able to know what is happening and why they are on trial. In other words, they must be “mentally fit”. In Canada, review boards have been created in every province to assess whether people are mentally fit. In Quebec, this review board is called the Commission d’examen des troubles mentaux (CETM or review board for mental disorder).

The CETM plays two important roles in this process. First, it assesses the accused’s mental fitness for trial. Second, it protects the public by supervising the treatment of anyone who is found mentally unfit for trial.

During a trial, the judge, prosecutor, or even the accused themselves (or their lawyer) can ask for a mental fitness assessment.

The purpose of the assessment is to make sure that the accused can participate in their own trial. The assessment focuses on three things:

  • The accused’s ability to understand what is happening in the trial
  • The accused’s ability to understand what punishment or other consequences they might receive, and
  • The accused’s ability to communicate with their lawyer.

The assessment can be made by a judge and will then be reviewed by the CETM. Otherwise, the judge will ask the CETM to make the assessment. In both cases, the CETM will make the final determination.

Victims can ask to be informed about any fitness 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.

What happens after the mental fitness assessment?

After the fitness hearing, there are two possibilities. First, that the accused is declared fit for trial. In this case, the trial will resume. If the accused is declared unfit, then the trial will be paused.

At this point, the judge or the CETM decide whether the accused should be detained until they recover and become mentally fit for trial. If the judge or the CETM believe that the accused will not pose a danger to the public, they can allow the accused to live in the community under certain conditions.

However, if the judge or the CETM believe that releasing the accused would pose a significant threat to society or that release would make the accused’s mental health worse, they can order that the accused be detained in a hospital until the accused recovers. Significant threat means a risk of serious physical or psychological harm to members of the public, including the victim or children.

In some cases, the prosecutor can ask a judge to order the accused to undergo treatment aimed at making them fit for trial. The treatment:

  • Cannot last longer than 60 days.
  • Cannot harm the accused more than it helps.
  • Must have a good chance of making them fit for trial.

The judge can force the accused to undergo treatment against their will. However, the treatment must be reasonable. For example, a judge could order the accused to undergo psychotherapy, but cannot order the accused to undergo electroshock therapy.

What if the accused never recovers?

Sometimes it takes a long time for the accused to recover. In some cases, they never do. This means that an accused’s trial can be put on pause for many years. For this reason, the CETM will generally review the accused’s mental fitness every 12 months. This review is done to avoid keeping the accused in a hospital for the rest of their life if they have no chance of ever recovering.

If the CETM believes that the accused will never recover, they can recommend to a judge that the charges against the accused be stayed. “Staying charges” means that the trial will be cancelled.

The CETM will only recommend that charges be stayed if:

  • The accused is unfit and unlikely to ever recover, and
  • The accused does not pose a significant risk to the public.

The CETM’s recommendation is sent to a judge who makes the final decision. If the judge agrees with the CETM, the judge must still consider whether staying the charges would be in society’s best interest. If so, the judge can order the stay of proceedings and the accused will be free to go. It’s important to note that the accused is not acquitted when charges are stayed.

Important: even when someone is found guilty of a crime at the end of a trial, the law provides certain measures if they become unfit to receive their sentence. However, the process is different from the one that applies before the verdict.