Mental Disorder 2023 Criminal Code of Canada Annotations (Part XX.1)

• Date: 02 March 2023
• Author: Richard D. Schneider; Lora Patton
• Pages: 1-84



The  Annotated Mental Health Provisions

of the Criminal Code (Part XX.)

This volume is essentially an excerpt from Annotated Ontario Mental Health Statutes, which con-

tains, as well, annotations of Part XX. of the Criminal Code of Canada dealing with Mental Dis-

order. Our objective is to provide a more manageable volume with particular focus upon the

mentally disordered accused. It is intended to be of assistance to Review Board members, parties

to Review Board proceedings, and practitioners with accused before the courts or the Review

Boards of Canada.

The volume is made up of Part XX. and its annotations plus three appendices:

Part XX.: Mental Disorder in the Criminal Code — The Annotated Statute

• Assessment Orders

• Assessment Reports

• Protected Statements

• Fitness to Stand Trial

• Verdict of Not Criminally Responsible on Account of Mental Disorder

• Review Boards

• Disposition Hearings

• Dispositions by a Court or Review Board

• Terms of Dispositions

• High-Risk Accused

• Dual Status Oenders

• Appeals

• Review of Dispositions

• Power to Compel Appearance

• Stay of Proceedings

• Interprovincial Transfers

• Enforcement of Orders and Regulations

Appendix A: Fitness to Stand Trial: An Introductory Overview

Appendix B: Review Board Rules of Procedure

 R.D. Schneider, C. Pakosh & L. Patton, Annotated Ontario Mental Health Statutes, e (Toronto: Irwin Law, ).

Criminal Code



ss , 

Appendix C: Criminal Code Forms

• Form : Assessment Order of the Court

• Form .: Assessment Order of the Review Board

• Treatment Order (section .)

• “Keep Fit” Order (section .)

• Hospital Pending Review Board (section .())

• Disposition: Detention in Hospital (section .(c))

• Disposition: Discharge Subject to Conditions (section .(b))

• Form : Hospital Assessments: Out of Custody

• Form : Hospital Assessment: In Custody

PAR T XX.

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).

Def‌initions

2 “feeble-minded person” [Repealed, , c. , s. ]

“mental disorder” means a disease of the mind (troubles mentaux);

“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 (inaptitude à subir son procès);

Defence of Mental D isorder

16 () 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.

() Every person is presumed not to suf‌fer from a mental disorder so as to be exempt from

criminal responsibility by virtue of subsection (), until the contrary is proved on the balance

of probabilities.

() The burden of proof that an accused was suf‌fering from a mental disorder so as to be exempt

from criminal responsibility is on the party that raises the issue.

R.S., , c. C-, s.; R.S., , c.  (st Supp.), s. (F); , c. , s. .

Upon a verdict that the accused was unt to stand trial or NCR (not criminally responsible) at

the relevant time, the provisions of Part XX. of the Criminal Code apply. The accused may be

detained in hospital, discharged subject to conditions, or, if not a signicant threat to the safety

of the public, discharged absolutely. While the court may issue a disposition upon the verdict, the

matter is typically referred to the provincial or territorial Review Board.

Criminal Code s .



Def‌initions

672.1 () In this Part,

accused includes a defendant in summary conviction proceedings and an accused in respect

of whom a verdict of not criminally responsible on account of mental disorder has been ren-

dered; (accusé)

assessment means an assessment by a medical practitioner or any other person who has been

designated by the Attorney General as being qualif‌ied to conduct an assessment of the mental

condition of the accused under an assessment order made undersection .or., and

any incidental observation or examination of the accused; (évaluation)

chairperson includes any alternate that the chairperson of a Review Board may designate to

act on the chairperson’s behalf; (président)

court includes a summary conviction court as def‌ined in section , a judge, a justice and a

judge of the court of appeal as def‌ined insection ; (tribunal)

disposition means an order made by a court or Review Board undersection ., an order

made by a court under section . or a f‌inding made by a court under subsection .();

(décision)

dual status of‌fender means an of‌fender who is subject to a sentence of imprisonment in

respect of one of‌fence and a custodial disposition underparagraph .(c) in respect of

another of‌fence; (contrevenant à double statut)

high-risk accused means an accused who is found to be a high-risk accused by a court

undersubsection .(); (accusé à haut risque)

hospital means a place in a province that is designated by the Minister of Health for the prov-

ince for the custody, treatment or assessment of an accused in respect of whom an assessment

order, a disposition or a placement decision is made; (hôpital)

CASELAW

(C-M.), D., Re (September , ) [] O.R.B.D. No.  (Ont. Review Bd.) — A detention

centre is not a “hospital” within the meaning of section .(). The jurisdiction of the Review

Board only permits detention orders to hospitals.

* * * * *

medical practitioner means a person who is entitled to practise medicine by the laws of a

province; (médecin)

party, in relation to proceedings of a court or Review Board to make or review a disposition,

means

(a) the accused,

(b) the person in charge of the hospital where the accused is detained or is to attend pursuant

to an assessment order or a disposition,

(c) an Attorney General designated by the court or Review Board under subsection .(),

(d) any interested person designated by the court or Review Board under subsection .(), or

(e) where the disposition is to be made by a court, the prosecutor of the charge against the

accused; (parties)