Criminal Code

AuthorRichard D. Schneider; Caitlin Pakosh; Lora Patton
Criminal Code
Criminal Code, R.S.C. , c. C-, as amended by R.S., c. C-, Part XXVIII; R.S., , c. 
(st Supp.), ss. (E), , , c.  (th Supp.), ss. , (F), c.  (th Supp.), ss. –; ,
c. , s. ; , c. , s. ; , c. , ss. –; , c. , s. ; , c. , ss. , , ;
, c. , s. , c. , s. , c. , s. ; , c. , s. ; , c. , s. , c. , ss. –, c. ,
ss. – Preamble; , c. , s. ; , c. , ss. , , c. , ss. , F.
The Criminal Code has been described as the “mental health act of last resort.” This book illus-
trates the wealth of civil options available in the legal system that fall outside the realm of criminal
charges. Even with other options being available, however, persons with mental health issues
are overrepresented in the criminal justice system, oftentimes becoming justice-involved in the
rst place because of the symptoms of their mental illness. The rate of mental health illnesses in
justice-involved people is substantially higher than in the general population. Various statistics
and studies suggest that this overrepresentation in the criminal justice system of persons with
mental illness has been increasing in Canada over time.
With the onset of the COVID- pandemic in Canada in March , there has been an increase
in calls for service related to mental health. For example, in the rst eight months of the pandemic,
Canadian police services for certain criminal incidents were down by almost  percent compared
to the same period in the previous year, while there was an  percent rise in the number of calls for
service — in particular, wellness checks, mental health calls, and calls to attend domestic incidents.
In an era of intense public discourse with respect to police funding and appropriate responses to
Richard D Schneider, Anne G Crocker & Marichelle C Leclair, “Mental Health Courts and Diversion Pro-
grams” in Jennifer A Chandler & Colleen M Flood, eds, Law and Mind: Mental Health Law and Policy in
Canada (Toronto: LexisNexis Canada, ) at . See also Andrew Galley, Frank Sirotich & Sara Rodrigues,
The Mental Health Needs of Justice-Involved Persons: A Rapid Scoping Review of the Literature (Ottawa: Mental
Health Commission of Canada, ), online:les/-/
Justice_Scoping_Review_eng.pdf at xii [Mental Health Needs of Justice-Involved Persons]; Zoe Johansen-Hill,
“Proportionate Justice: An Examination of Fetal Alcohol Spectrum Disorders and the Principles of Sentencing
in Saskatchewan” ()  Sask. K. Rev.  at  [Proportionate Justice].
Mental Health Needs of Justice-Involved Persons, above note  at .
See, for example, Centre for Addiction and Mental Health, Mental Health and Criminal Justice Policy Frame-
work (), online:les/pdfs---public-policy-submissions/mh_criminal_justice_
policy_framework-pdf.pdf at ; R.D. Schneider, Statistical Survey of Provincial and Territorial Review Boards
(Ottawa: Federal Department of Justice, ).
Statistics Canada, Selected Police-Reported Crime and Calls for Service During the COVID- Pandemic,
March to October  ( January ), online: https://www/daily-quotidien//
dqc-eng.htm. Note that this data was collected from nineteen police services.
Criminal Code
acute mental health crises, public dialogue in Canadian society has recently focused on available
remedies and the most productive routes forward.Frequently, public discourse is focused on the
sensational cases that make national headlines. The Ontario provincial policy of the Canadian
Mental Health Association (CMHA) is of the position that “[i]t is imperative that a cross-sectoral
approach be utilized to coordinate services and supports for individuals with mental health and
addictions conditions who come into contact with the justice system, as itmay serve as a key turn-
ing point in their lives.” Court support programs and court support teams are central to providing
mental health and addiction supports as individuals move through the justice system. From an
equity and human rights lens, the Mental Health Commission of Canada has identied two over-
arching themes with respect to its review of the literature addressing the mental health needs of
justice-involved people in Canada: () the tension between trying to assure security while providing
care; and () the overlap between mental health recovery and criminogenic rehabilitation.
The Canadian experience is not an isolated one in the international community. The United
States, the United Kingdom, Australia, and New Zealand experience comparable rates of mental
illness in the correctional context.
From a statutory perspective, Part XX. of the Criminal Code addresses a variety of dierent
circumstances involving accused persons who experience mental disorders but predominantly
focuses on tness to stand trial and the issue of being not criminally responsible by reason of
mental disorder (NCRMD). The argument has been made that there is a disconnect between the
theoretical purpose of the NCRMD regime (to not punish mentally ill oenders lacking moral
blameworthiness for their actions) and the provisions being underinclusive in practice. Part
of the concern to this end is that most of the Criminal Code provisions, including the NCRMD
sections, do not apply to permanent cases of neurocognitive impairment or neurodevelopment
disorders. These disorders, such as Fetal Alcohol Spectrum Disorder (FASD), therefore become
an ethical quagmire on sentencing, being considered to have both aggravating and mitigating
features. Calls to Action # and  of the Truth and Reconciliation Commission () identied
that the Canadian criminal justice system needs to better address FASD on sentencing, particu-
larly given the role FASD may have in the over-incarceration of Indigenous people.
The conversation continues, with a view to constant improvement. The role of this chapter,
however, is not to weigh in on whether or to what extent the Criminal Code works to address men-
tal disorder in the criminal justice system. Instead, this chapter seeks only to provide the reader
with an introduction to how the Criminal Code operates in this context, drawing upon the most
often relied upon caselaw and procedures.
Jocelyn Rempel, “The Canadian NCRMD Regime: Disconnect Between the Theoretical and the Practical”
()  C.L.Q.  at  [Canadian NCRMD Regime].
Canadian Mental Health Association, Provincial Policy: Justice and Mental Health (August ), online: CMHA Ontario provides policy advice to the
Provincial Human Services and Justice Coordinating Committee as part of this cross-sectoral approach.
Mental Health Needs of Justice-Involved Persons, above note  at i.
Ibid. at i–ii.
 Canadian NCRMD Regime, above note .
 Proportionate Justice, above note  at . See also Canadian NCRMD Regime, ibid. at –.
Criminal Codess .–.
The Presumption of Fitness and Relevant Denitions
Every accused person is presumed to be t to stand trial until the contrary is proven on a balance
of probabilities, pursuant to section . of the Criminal Code:
Presumption of f‌itness
. An accused is presumed f‌it to stand trial unless the court is satisf‌ied on the balance of prob-
abilities that the accused is unf‌it to stand trial. [, c. , s. ]
The requirement that an accused be “t to stand trial” stems from the ancient notion that an
accused must be present to respond to accusations of the state. That basic requirement developed
into a more rened view that the accused must not only be physically present but mentally present
as well. Accordingly, rules originally developed at common law were codied in  as part of Bill
C- and are contained in section  of the Criminal Code, as set out below:
“feeble-minded person” [Repealed, , c. , s. ]
“mental disorder” means a disease of the mind;
“unf‌it to stand trial” means unable on account of mental disorder to conduct a defence at any stage
of the proceedings before a verdict is rendered or to instruct counsel to do so, and, in particular,
unable on account of mental disorder to
(a) understand the nature or object of the proceedings,
(b) understand the possible consequences of the proceedings, or
(c) communicate with counsel
At any stage of the proceedings before a verdict is rendered, the court may direct that the issue
of the accused’s tness be tried if the court has reasonable grounds to believe that the accused
is unt to stand trial, pursuant to section .():
Court may direct issue to be tried
. () Where the court has reasonable grounds, at any stage of the proceedings before a verdict
is rendered, to believe that the accused is unf‌it to stand trial, the court may direct, of its own motion
or on application of the accused or the prosecutor, that the issue of f‌itness of the accused be tried.
Most often, the tness issue arises at the accused’s rst appearance and is resolved prior to
arraignment. However, the issue may arise during the course of a trial or preliminary hearing and
may arise on multiple occasions. It is therefore not subject to rules regarding res judicata.
The Limited Cognitive Capacity Test
The case of R. v. Taylor, [] O.J. No.  (C.A.) sets out that the test for tness to stand trial
is the “limited cognitive capacity test”:
The test to be applied is one of limited cognitive ability, whether the accused understands the
nature and object of the proceedings, understands the possible consequences, and can recount to
counsel the necessary facts relating to the of‌fence in such a way that counsel can then properly
present a defence. It is not necessary that the accused be able to meet some higher test of analytic
capacity or capacity to make rational decisions benef‌icial to himself.

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