Criminally Responsible Or Not Criminally Responsible?

Mental illness can be used as a defence during criminal cases, drastically affecting an individual’s sentencing and potentially result in a not criminally responsible verdict. When the mental illness defence is used too freely, though, where should the line be drawn?

Mental health disorder names - not criminally responsible

Crafting an appropriate sentence for an individual charged with a crime remains an extremely complicated task for a judge. In some exceptional cases, this process is complicated further when the accused’s mental health is brought into question. Although the insanity defence is rarely successfully defended in Canada, some attorneys still see it as an option. It is up to the sentencing Judge to tailor each sentence to fit the accused person’s circumstances, including mental health considerations.

There are many misconceptions about the insanity defence, such as how it is used and why. It has also become highly controversial due to several highly publicized Canadian trials in recent years. These high profile trials all resulted in not criminally responsible (NCR) verdicts. One of these cases involves Zhebin Cong, who was charged with second-degree murder for the killing of his roommate in 2014. Cong’s attorney succeeded in arguing that Cong was mentally ill, resulting in the accused being sent to the Centre for Addiction and Mental Health. Cong later escaped CAMH and became an international fugitive after moving back to China. This is one of many incidents of CAMH disappearances over the last several years.

High Risk with Low Security?

Many people are concerned about their communities’ safety if mental illness is used too frequently as a defence. The lower level of security, compared to prison, poses the question: will dangerous criminals be able to escape? This has since prompted CAMH to increase their security measures. Others advocate for caution during these sentences, like those involved in Ontario’s forensic mental health system. Forensic psychiatry focuses on understanding and treating issues that lead to these criminal acts. These individuals argue that sentencing is meant to be restorative and not punitive, and overlooking mental illness could be detrimental.

judges seat - not criminally responsible

The Canadian Criminal Code states that in the case of defence of mental disorder:

‘No person is criminally responsible for an act committed or an omission made 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.’

Those found accused could receive one of two sentences. They are either found not criminally responsible on account of mental disorder (NCRMD) or can be found unfit to stand trial (UST).

However, this defence can get complicated. The jury or judge must determine the criminal’s state of mind and thoughts at the time of the committed crime. It is a difficult challenge, but if a person is determined as NCR, the verdict results in no jail sentence. Moreso, the charge considers that no crime has been committed, but attending a mental institution is often recommended.

Mental Illness Defence Through M’Naghten Rule

The M’Naghten rule that exempts those who are mentally ill from criminal responsibility was incorporated into the Canadian criminal code in 1892. Although, at the time, this verdict resulted in a much more intense sentence. The Accused would be confined in a psychiatric ward with harsh and severe restrictions and terms. Additionally, they would not be released until the lieutenant governor of their province allowed them to go free. 

Now, things are a bit different from when they first introduced the M’Naghten rule in 1892. Today, people acquitted under the rule are:

  • not always held within a hospital, 
  • are allowed to make their own decision about pleading insanity at trial,
  • free from the Crown’s ability to override the decision.

In the 90s, a bill replacing the insanity defence with the NCR concept was introduced. This allowed these types of cases to be reviewed and decided on a case-by-case basis.

Defence With Mental Illness In 2020

In 2020, patients are given a review-board hearing with a panel of lawyers and medical professionals. This board will choose from various options, including confinement in a psychiatric institution, supervised living arrangements or an unconditional discharge. Other than those granted unconditional discharge, people found to be not criminally responsible will receive new hearings each year. During these hearings, the person’s health will be assessed and a decision will be made regarding if they are discharged or not. This is a long and challenging process without a set timeline.

The NCR verdict is critical, controversial and complex, but there is no simple solution to these unique circumstances. Every situation is different, and many factors and opinions must be taken into consideration. Since each case is unique, the results of the verdict must also be unique to the situation. Understanding the history and use of this verdict is helpful in knowing when this verdict should be used.

If you want to understand every option you have for defence in a trial, contact Canada Criminal Lawyer today. Call us at (855) 585-1777 or click below to find a lawyer near you for representation or for legal advice.

Scroll to Top