Where mental disorder plays a role in a criminal case, the ordinary rules of the criminal process change. Two questions arise before anything else: whether the accused is able to participate in the proceedings, and whether they can be held criminally responsible for what happened. Where either question is answered in the accused's favour, supervision passes to the Ontario Review Board.
Fitness to Stand Trial
An accused must be able to understand the nature and object of the proceedings, understand the possible consequences, and communicate with and instruct counsel. Where mental disorder renders a person unfit, the trial cannot proceed until fitness is restored, and the case may move into the review board system.
The threshold is a limited one. An accused may be found fit even if they are unwell, are making decisions their lawyer disagrees with, or are acting against their own best interests. The law presumes an accused is fit unless the court is satisfied otherwise on the balance of probabilities.
Where fitness is genuinely in issue, the court can order an assessment and, in appropriate cases, a treatment order intended to render the accused fit. A person found unfit does not simply go free, and the charges are not dismissed. The proceedings are paused and the individual comes under the supervision of the Ontario Review Board.
Fitness is decided at the time of trial
Fitness looks at the accused's mental state now, during the proceedings. It is a separate question from their mental state at the time of the alleged offence, which is what the not criminally responsible defence addresses.
Not Criminally Responsible (NCR)
Section 16 of the Criminal Code provides that a person is not criminally responsible for an act committed while suffering from a mental disorder that rendered them incapable of either:
- Appreciating the nature and quality of the act or omission — being unable to understand what they were physically doing or its consequences; or
- Knowing that it was wrong — being unable to understand that the act was morally wrong according to the ordinary standards of society, not merely that it was against the law.
Everyone is presumed not to suffer from such a mental disorder. The party raising the issue, which may be the defence or in some circumstances the Crown, must prove it on the balance of probabilities. Expert psychiatric evidence is almost always required.
An NCR verdict is neither a conviction nor an acquittal. The court finds that the accused committed the act but is not criminally responsible for it. The individual is then dealt with under the review board system rather than sentenced.
Court-Ordered Assessments
Where there is reason to believe that evidence about an accused's mental condition is necessary, a court may order an assessment. Assessments are commonly ordered to address fitness to stand trial or criminal responsibility at the time of the offence, and are usually conducted by a psychiatrist, either in custody or in the community.
Why Experienced Counsel Matters
These are consequential decisions, and they are not always the right strategy in every case. An NCR verdict can result in supervision that lasts considerably longer than the sentence the same charge would have attracted. A skilled defence lawyer will consider whether the Crown can prove the offence at all, whether the mental health route genuinely serves the client, and how to present the medical evidence to obtain the least restrictive outcome available.
The Ontario Review Board
The Ontario Review Board (ORB) is the independent tribunal that supervises individuals found either unfit to stand trial or not criminally responsible on account of a mental disorder. The Board holds hearings — at least once a year for most individuals — and makes one of three dispositions, guided by public safety and the least onerous and least restrictive approach:
- Absolute discharge: the individual is released without conditions, available where they are not a significant threat to public safety;
- Conditional discharge: release into the community subject to conditions; or
- Detention order: detention in a hospital or community, with privileges set by the Board.
Effective representation before the ORB requires a thorough command of the medical evidence, mental disorders and treatments, and the governing legal test. We advocate for the least restrictive disposition appropriate to each client's circumstances.
How a Case Reaches the Board
The Board's jurisdiction comes from Part XX.1 of the Criminal Code. After a finding of unfitness or a verdict of not criminally responsible, the court may make an initial disposition itself, but in practice most cases proceed directly to the Board. A person found unfit remains under the Board's supervision while the criminal charges remain outstanding. The Board's decisions determine where a person lives, what conditions they must follow, and when their involvement with the system ends.
How Hearings Work
Hearings are held more often than once a year where circumstances change or a review is requested. Panels typically include a chair who is a lawyer or judge, a psychiatrist, and other members with relevant expertise.
Hearings are less formal than a criminal trial, but they are still contested proceedings. The hospital files a report, the treatment team may give evidence, and the person under supervision has the right to be present, to be represented by counsel, and to challenge the evidence presented.
The Legal Test
The central question at every hearing is whether the person poses a significant threat to the safety of the public. This is a demanding standard. It requires a real risk of physical or psychological harm that is serious and goes beyond the merely trivial or annoying.
If there is no significant threat, an absolute discharge must follow
Where the Board is not satisfied that a person is a significant threat to public safety, it does not have discretion to keep supervising them. The Supreme Court of Canada confirmed in Winko that an absolute discharge must be granted in those circumstances.
Where a significant threat is established, the Board must then craft the disposition that is the least onerous and least restrictive to the person, taking into account public safety, the mental condition of the accused, their reintegration into society, and their other needs.
Testing the Hospital's Evidence
The hospital's recommendation is not the final word. Experienced counsel will test the risk assessment, challenge conclusions that are not supported by the evidence, and put forward a realistic plan for greater liberty. Over a number of years these hearings compound, and each one shapes the next.
Dispositions may also be appealed to the Court of Appeal for Ontario by the person under supervision, the Crown, or the hospital.
Facing a criminal charge involving mental health?
These cases require both criminal law experience and a command of the medical evidence. Brass Law Office represents clients in criminal mental health matters and before the Ontario Review Board throughout Ottawa and Eastern Ontario.
This article is for general informational purposes only and does not constitute legal advice. Every case turns on its own facts and medical evidence. Contact a lawyer to discuss your situation.