M ENTAL H EALTH &T HE L AW
Associate at Borden Ladner Gervais LLP
Introduction Mental Health Law
Civil systemgoverned Forensicsystem
by the Mental Healtgovernedby Part XX.1
Act of the Criminal Code
Forensic Mental Health System
Governs Persons Found Not Criminally Responsible for a Crime
What is an “NCR” verdict?
o It is not a verdict of guilt.
o Acknowledgment that people who commit criminal acts under the
influence of mental illness should not be held criminally responsible for
their acts or omissions.
o But it is also not an acquittal.
o Person referred to as an “accused”.
Goal of Forensic System: Assessment and Treatment
Supreme Court of Canada’s Decision in Winko:
o Landmark decision on the constitutionality of Part XX.1 of the Criminal
o Is the regime constitutional or does it create a presumption that mentally
ill accused are inherently dangerous and puts an onus on them to show
that they are not dangerous.
o Public Safety will only be ensured by stabilizing the mental condition of
o Forensic system is to provide opportunities to receive treatment, not
1 What happens after a person is found NCR?
Warrant of Committal to be detained at a Forensic Hospital
o Centre for Addiction and Mental Health in Toronto,
o St. Thomas near Hamilton,
o Ontario Shores in Whitby,
o Waypoint in Penetanguishene,
o Syl Apps for youth offenders,
o North Bay
o Lakehead in Thunder Bay
Hearing must be held within 45 days
Ontario Review Board
Specialized Administrative Tribunal
Composition of the ORB:
o Two legal members
o One psychiatrist and psychologist member
o Member of the public
Parties at the hearing:
o Accused (Legal Aide, amicus)
o The Person in Charge (ie. The Hospital)
Treating Psychiatrist Testifies about the accused’s mental condition, treatment
of the accused, and about risk.
Cross-examined by the Crown
Cross-examined by the Accused
Board members may ask questions: inquisitorial system.
“Significant Threat to the Public”
The Board must be satisfied that the person poses a “significant threat to the
public” or the Board must grant the accused an absolute discharge.
o SCC in Winko: “If the Review Board fails to positively conclude, on the
evidence, that the NCR offender poses a significant threat to the safety of
the public, it must grant an absolute discharge. Any doubt on this score
2 is removed by the injunction that the court or Review Board shall make
the order that is the least onerous and least restrictive to the accused,
consistent with the evidence.”
Liberty of the accused can be restricted on grounds of public safety. If there is
no risk to public safety, state cannot detain an accused person.
The threat posed must be more than speculative in nature;
It must be supported by the evidence.
The threat must be “significant”, both in the sense that this potential harm
must be serious.
A minuscule risk of a grave harm will not suffice.
A high risk of trivial harm will not meet the threshold either.
The conduct or activity creating the harm must be criminal in nature.
Factors to Consider
Circumstances of the original offence;
Past and expected course of the NCR accused’s treatment, if any;
The present state of the NCR accused’s medical condition;
NCR’s accused’s plans for the future;
Support services existing for NCR accused in the community;
The recommendation provided by experts who have examined the NCR
Actuarial Risk Assessments
Historical factors, dynamic risk factors
Followed mentally ill offenders years after they were discharged and calculated
probabilities of offending based on certain historical factors. Accused placed
into one of nine bins that predicts rate of recidivism.
3 “Lease Onerous and Least Restrictive”
If there Board Satisfied that accused poses a significant threat to the safety of
the public, Board must make an order that is “least onerous and least
SCC writes that the NCR accused is to be treated with the utmost dignity and
afforded the utmost liberty compatible with his or her situation.
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
Dispositions that the ORB may order
Detention •Levels of Security
Order •Privileges to access the hospital grounds and community
•Easier return accused to hospital in case of decompensatipm
Conditional •Reporting Requirement to the Hospital
Discharge •Potential for residency requirements
•Significant Threat to the Public Not made out.
ORB may also