Mental Health and Criminal Law

by | Nov 19, 2018 | Mental Health

The Canadian Mental Health Association estimates that in a given year, 1 in 5 people in Canada will personally experience a mental health illness. From bipolar disorder to schizophrenia to depression or anxiety, the discussion surrounding mental health is becoming more prevalent, especially with targeted campaigns that try to deal with the stigma of mental health. At the same time, many individuals who come into contact with the criminal justice system are affected by mental health issues or illnesses.

How your mental illness affects you and how it may relate to your involvement in the criminal justice system is very fact dependent. Perhaps, a person is not criminally responsible for their actions based on their mental illness or disorder. Or perhaps, a person was criminally responsible but given their mental illness, their moral culpability is lessened and they wish the Court to understand and appreciate those personal characteristics. It is important to find a lawyer who is familiar with the different avenues that may be pursued while being sensitive to your mental health issues or illnesses. It is important to find someone who understands those avenues and the potential consequences of pursuing them.

In Ottawa, the courthouse has a mental health court with an assigned prosecutor and other mental health participants. Participating in such a court may open up connections to mental health services that a client was not aware of and may go down the path to resolving the matter in manner that is favourable to the individual and sensitive to that person’s mental illness.

On the other side, a client may wish to pursue a not criminally responsible defence, which requires reviewing the evidence to determine the viability of that defence, assessments with forensic psychiatrists and presenting a case to the court. If a court finds a person not criminally responsible (NCR), the person is then directed to the Review Board. The question for the Review Board is whether the individual poses a significant threat to the safety of the public. The Board may absolutely discharge the individual where they do not pose a significant threat. If the Board finds the individual does pose a significant threat, the Board may impose a detention order (in a psychiatric hospital) or a conditional discharge. An individual goes before the Board annually at a minimum until they are absolutely discharged.

While some in society may view an NCR defence as a “get out of a jail free” card, as the individual does not go to jail or serve a sentence, the reality is that being found NCR can have many consequences, including restrictions on an individual’s liberties for years and in some cases, decades. Whether an NCR defence is an available defence and something that should be pursued is something that should be discussed with a lawyer who understands these types of defences and their consequences.

Michelle O’Doherty and others at Bayne Sellar Ertel Carter have experience with assisting clients with various mental health issues and illnesses. Ms. O’Doherty has also represented clients who have been found NCR and have represented them at the Review Board. Your mental health issues or illnesses do not define you as a person but are a part of your personal circumstances and you should have a lawyer who is sensitive to these matters and can assist you in navigating through the criminal justice system.


FindLaw Network