5. Mental Disorder

Summary of Mental Disorder #

Overview #

Distinguish the following procedural facets:

  1. Fitness to stand trial

  2. Mental disorder defence (at trial)

  3. Review Board dispositions

1. Fitness to stand trial: #

The accused, the Crown, or the court on its own motion may raise the issue of the accused’s fitness to stand trial at any time during a prosecution before the verdict is rendered. (By contrast, the Crown is restricted as to when it may raise the defence of mental disorder. See below.)

The accused is presumed to be fit to stand trial, unless the court is satisfied on a balance of probabilities that the accused is not fit. The persuasive burden rests on the party raising the issue of fitness. (section 672.22)

Test for fitness

Section 2 of the Criminal Code states that a person is “unfit to stand trial” where, “on account of mental disorder, [she is unable] to conduct a defence at any stage of the proceedings before a verdict is rendered or to instruct counsel to do so, and, in particular, unable on account of mental disorder to:

a. understand the nature or object of the proceedings,

b. understand the possible consequences of the proceedings, or

c. communicate with counsel”.

To be found fit under section 2, the accused need only possess a “limited cognitive capacity to understand the process and to communicate with counsel.” He need not be “capable of making rational decisions beneficial to him.” (Whittle)

A person found unfit can be tried at a later time, if he is later found to be fit. If the Crown seeks to preserve the status of a prosecution while waiting for the accused to become fit, the Crown must establish a prima facie case for the offence every two years. (section 672.33)

A person found unfit to stand trial is remanded to the Review Board for a disposition hearing under section 672.54 (the court can also carry out the disposition hearing but usually remits the matter to the Board). In that hearing, an accused who has been found unfit to stand trial may be released on conditions or be ordered to remain in hospital, but may not be discharged absolutely. (s. 672.54)

If the court finds that a person is not likely to ever become fit to stand trial and does not pose a significant threat to public safety, the court may grant a stay of prosecution. (Demers; s. 672.851).1

2. Mental disorder defence: #

The mental disorder defence is set out in section 16 of the Code, and the phrase “mental disorder” is a defined term in section 2. The defence serves to exempt a person from criminal liability based on an incapacity for criminal intent or excuse what would otherwise be a criminal offence. (Chaulk)

The mental disorder defence

Section 16 states that a person is not to be found criminally responsible for an act or omission committed “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.”

(A key element of the test is the causal connection: the failure to appreciate the nature or quality of the act, or to know it was wrong, must be an effect of the mental disorder.)

Section 2 defines “mental disorder” as a “disease of the mind,” thus incorporating the common law definitions of this phrase (see below).

Either the accused or the Crown may invoke the defence of mental disorder. Before it may be put to the jury, the party seeking to rely on it must establish an air of reality for each element of the defence.

Once an air of reality has been established, the burden remains with the party seeking to rely on the defence to persuade the trier of fact that each element of the defence applies on a balance of probabilities.

This violates the presumption of innocence in s. 11(d), because it allows for a conviction where there is a reasonable doubt about mens rea or the voluntariness of the actus reus. The violation has been held to be a reasonable limit on the right, under s. 1, because, among other reasons, the accused is in the best position to present evidence as to their mental state. (Chaulk)

While the accused may raise the mental disorder defence at any point during the trial, the Crown may raise the defence in only two instances: (a) once it has established a prima facie case for the elements of the offence (mens rea and actus reus); or (b) when, in the course of the trial, the accused has raised the issue of his or her capacity for criminal intent (e.g., voluntariness, automatism, etc.) (Swain).

If the court (or jury) finds that the test in section 16 has been met on a balance of probabilities, the accused is found “not criminally responsible due to mental disorder” (NCRMD) and remanded to the Review Board for a disposition hearing under section 672.54 within 45 days.

If the judge or jury finds that the elements of the mental disorder defence have not been established on a balance of probabilities, the facts supporting the defence may still be considered in assessing whether the mens rea of the offence has been established beyond a reasonable doubt.

For example, facts relating to the accused’s mental state at the time of the offence might fall short of the elements in section 16, but still raise a reasonable doubt about whether a murder was “planned and deliberate,” or whether the accused had the necessary intent for murder (“means to cause death” or “means to cause bodily that he knows is likely cause death”). (Swain)

‘Disease of the mind’ #

Whether a person suffers from a “disease of the mind” is a legal and not a medical issue. Medical evidence assists in deciding the issue but is not determinative. (Simpson)

“Disease of the mind” includes “any illness, disorder or abnormal condition that impairs the human mind and its functioning, [but excludes] self-induced states caused by alcohol or drugs, as well as transitory mental states such as hysteria or concussion.” (Where a person suffers an abnormal mental condition or impairment due to the voluntary consumption of intoxicants, the proper defence is intoxication.) (Cooper)

‘Appreciating the nature and quality of the act’ #

This refers specifically to an ability to perceive the physical consequences, impact, or results of the act (e.g., that the act of choking would cause death). (Cooper)

It does not require that the act be “accompanied by appropriate feeling [such as guilt or remorse] about the effect of the act on other people.” (Cooper)

‘Knowing that the act was wrong’ #

Wrong here means morally wrong or “contrary to the ordinary moral standards of reasonable men and women.” (Chaulk)

It does not require that the accused know only that something was “legally wrong.” (Chaulk)

To fail to know that “the act was wrong,” the accused must lack an awareness that the act was morally wrong by society’s standards. (Chaulk)

3. Review Board: #

Once a person has been found unfit to stand trial or NCRMD, the Review Board must make the disposition that is “necessary and appropriate in the circumstances”, taking into account public safety and the needs of the accused – but with “the safety of the public…the paramount consideration”. (Section 672.54)


The three dispositions under section 672.54 available to an accused person found NCRMD are:

i. an absolute discharge,

ii. a conditional discharge, or

iii. detention in custody in the hospital.

The SCC in Winko held that in a hearing under section 672.54, “If the court or Review Board concludes that the NCR accused is not a significant threat to the safety of the public, it must order an absolute discharge.”

A person unfit to stand trial may only be conditionally discharged or detained in hospital. (This would continue until a person is found not likely to ever become fit and the charge is stayed [section 672.54] – or if the Crown decides to stay the charge, or if the Crown fails to present a prima face case at intervals of up to 2 years and the charge is stayed by the court [s. 672.33].)

The Review Board scheme allows for indefinite detention in hospital but was held in Winko to be consistent with section 7 and 11(d) of the Charter, given the requirement in section 672.54 for the least onerous disposition and periodic reviews of detentions or conditional discharges at yearly intervals (or sooner). It is unclear whether this is still the case, given that amended section now requires the order “necessary and appropriate in the circumstances”, with “the safety of the public…the paramount consideration”.

  1. The court may also grant a stay where a person does pose a significant threat, under a further test in section 672.851(8). ↩︎

© Robert Diab, TRU Law, 2022