Chapter V: Mental Health, Criminal Justice and Civil Commitment
Part One – Criminal Justice and Mental Health
a) Court-Ordered Psychiatric Assessments and Unfitness to Stand Trial
i. A person can be detained and examined for psych if reason to believe they are
unfit to stand trial or mentally ill at time of offense.
ii. People are presumed to be fit, unless the defense otherwise on a balance of
iii. An accused will be found unfit if they are unable to understand the nature or
possible consequences of the proceedings, or to communicate with counsel.
iv. If an accused is found unfit, they may be detained and treated without their
consent for up to 60 days to become fit to stand trial.
v. If still unfit after 60 days, the trial will be stayed and person detained in psych
facility. If the accused becomes fit after 60 days, the criminal proceedings will
continue as if fitness was never an issue.
b) Not Criminally Responsible by Reason of Mental Disorder
i. Individuals cant be held criminally responsible if they were suffering from a
mental disorder that rendered them “incapable of appreciating the nature and
quality of the act…or of knowing that is was wrong”
a. A mother is drowning her baby but doesn’t appreciate the nature because
she is mentally ill
b. A mother kills her baby because god said to; she understood the nature of
the act but not that it was morally wrong.
ii. The SCC held that the defense may apply when the accused knows the conduct is
legally wrong, but does not know it is morally wrong
iii. R v. Chaulk 15 and 16 y/ostobbed a house and bludgeoned to death the 83 y/o
resident; charged with 1 degree murder. They raised defense of insanity and at
trial the jury rejected defense of insanity. They defense said they had a paranoid
psychosis; they knew the nature of the act and they knew it was legally wrong but
they didn’t know it was morally wrong. This was rejected at trial and found
guilty. They appealed to court rejected argument and said they new the nature and
legally wrong therefore defense doesn’t apply. Appealed to SCC decided the
defense of insanity is available if you are unable to appreciate the consequence of
the act or of knowing that is legally/morally wrong; they sent case back to trial.
They were found not guilty (hospitalized and released 4 months later) and then
killed 2 more people in 1999 and sentenced to life.
iv. R v. Dobson as part of a murder-suicide, he stabbed 2 women to death and then
didn’t kill himself. He was charged with first degree. Argues by virtue of schizo,
he wasn’t able to appreciate nature of his act (rejected). Argued then that he didn’t
know it was morally wrong. Court said given the fact how well this was planned
and kept it secret indicated he knew it was morally wrong and convicted of first
v. Everyone is presumed not to be suffering from a mental disorder of this nature (a
mere mental illness is not a defense; it must cause you not to appreciate the nature
of act or that it is wrong)
vi. The onus is on the party raising the issue. vii. If accused is NCR (Not criminally responsible), court may take one of three
dispositions: absolute discharge; conditional discharged; or detention in hospital
viii. The court my impose the least restrictive disposition considering the need to
protect the public, and the accused’s mental condition, reintegration into society,
and other needs.
ix. NCR accused cant be treated against their will, even if its in best interest
x. Criminal review boards maintain authority over NCR and unfit individuals until
they have been absolutely discharged.
xi. Federal gov amended the NCR provisions requiring courts to consider public
safety as the paramount concern
xii. The amendment creates high-risk for accused NCR for a “serious personal injury
offence” (rape, manslaughter, etc.)
xiii. “high-risk” accused are not eligible for absolute or conditional discharges.
Rather they must be detained in hospital until a court, based on CRB, removes
c) Mental Health and Sentencing
i. General sentencing factors include: psychiatric, psychological or other problems;
willingness to address these issues; and ongoing risk
ii. Aggravating factors that courts must consider include: a hx of violence, refusing
to take responsibility; failing to seek assistance for psychiatric help
iii. Courts must consider: physical/mental disability; accepting responsibility, and a
commitment to addressing problems (lessen sentence)
iv. Participation in tx may be made a condition of probation, parole or a conditional
discharge. The accused may refuse consent to tx but will not be granted probation.
d) Dangerous and Long-Term Offenders
i. Court must remand an offender for an assessment and consider the resulting
report before deciding whether to designate him or her a dangerous offender
(takes place AFTER conviction)
ii. They are: limited to offenders who have been convicted of:
a. Sexual, violent or serious offenses who are persistently aggressive who
pose an ongoing threat to safety of others.
b. Subject to indeterminate imprisonment, restricted parole and lifetime
supervision if paroled.
iii. Long term offenders are:
a. Limited to offenders convicted of sexual or violent offences that warrants
at least 2 years imprisonment and who pose a substantial risk of
b. Subject to long-term supervision order of up to 10 years after
Part Two – The Mental Health Act (MHA)
The MHA applies to in/outpatient of psychiatric hospitals. It also governs the detention of
individuals who are believed to be mentally-ill and at risk.
The MHA does not apply to other types of mental health services or patients who are
seeing a psychiatrist/psychologist in the community. Ex. Your OCD; doesn’t apply. You
have Schizo; seeing a family doc; doesn’t apply. We can give chemical, mechanical/physical to restrain you but once your normal cant
a. Categories of Psychiatric Patients
Voluntary patients are capable people w