The 2024 Annotated Mental Health Provisions of the Criminal Code (Part XX.1)

• Author: Richard D. Schneider/Caitlin Pakosh/Lora Patton
• Pages: 1-87



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. The 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. along with denitions from section  and the statutory

provisions regarding defence of mental disorder (section ) and relevant annotations plus three

appendices:

Denitions:

• Section 

• Section .()

Defence of Mental Disorder: Section 

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 and Criminal Responsibility: An Introductory Overview

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

Criminal Code



Appendix B: Review Board Rules of Procedure

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 Assessment: Out of Custody

• Form : Hospital Assessment: In Custody

PART 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: from Section 

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

CASELAW

R. v. Cooper (), []  S.C.R.  — “Mental disorder ” is dened as “disease of the mind.”

Disease of the mind “embraces any illness, disorder or abnormal condition which impairs the

human mind and its functioning.” The denition from the perspective of criminal law is broad.

Mental disorder is a necessary, but not sucient, condition for one to be found unt to stand trial.

* * * * *

“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.

Commentary: Over the years there has been much controversy within and amongst the judiciary,

amongst academics, within the bar, and amongst the psychiatric forensic experts called to give

evidence with respect to the so-called Taylor test. Taylor, below, has been the source of much

debate and confusion over the years; said inter alia to be internally inconsistent, said to set the bar

too low, said to start o with three tness criteria (section ) yet conclude with one singular test.

However, recently, the Ontario Court of Appeal released its decision in R. v. Bharwani, which

rewrites Taylor in a way that comports much more closely with how the various practitioners and

 R. v. Bharwani, [] ONCA .

Criminal Code s 



stakeholders felt the test should operate. A ve-judge panel of the Court of Appeal revisited the

substance of the test for “unt to stand trial.”

While the Court in Bharwani did not overturn Taylor, it did explain how Taylor should be inter-

preted. It is clear that there is one test to be considered: “the tness test.”

The starting point in considering untness to stand trial is, as set out above, section  of the

Criminal Code.

This denition is said to be merely a codication of the existing common law. The three “in

particulars” are now with Bharwani claried to be “touchstones” along with the other Taylor test

questions that may be considered in informing the fundamental question as to whether or not an

accused is unable on account of mental disorder to — before a verdict is rendered — conduct a defence

at any stage of the proceedings or instruct counsel to do so.

As set out in the excerpts below, to be t, the accused must be capable of communicating

rationally with counsel or the court. The accused must have a reality-based understanding of their

legal situation, be able to maintain a meaningful presence, and have the capacity to meaningfully

participate in the trial process. These are touchstones for the tness inquiry and the determination

of the fundamental question of whether the accused can fairly participate.

Very importantly, the Court underlines that while there is one singular test — “the tness test,”

it has to be applied in a contextualized manner. So, as has been suggested in the past, two quite

dierent clinical entities may be deemed “t to stand trial” as a function of their quite dierent

legal predicaments, timelines, degrees of participation required, complexity, etc. Elasticity is an

inherent part of the contextualized analysis. A nuanced approach must be taken.

From the perspective of a legal practitioner in the courtroom, the most signicant aspects of

the Bharwani case are set out in the paragraphs below:

[] To summarize,properly interpreted, Taylor stands for the following propositions:

. The s.  def‌inition of “unf‌it to stand trial”—which at its core concerns itself with whether the

accused is unable on account of mental disorder to conduct a defence or instruct counsel to

do so—is the test for determining f‌itness. While it is open to the court to interpret that test in

accordance with the principles of statutory interpretation, it is not open to the court to ignore

the statutory test and create a new one.

. As the s.  def‌inition is a statutory entrenchment of the prior case law in the area, that case law

guides the interpretation of its content. Based on that case law, an accused must be capable of

communicating “rationally” with counsel or the court in order to be f‌it. This includes an inquiry

into whether an accused is able to understand relevant information, apply that information in

the context of their decision-making, and intelligibly communicate.

. The touchstones of the s.  f‌itness inquiry—whether the accused can be meaningfully present

and meaningfully participate at their trial—inform a purposive interpretation and application

of the s.  f‌itness test. They do not constitute a stand-alone test for f‌itness.

. The accused need not have the capacity to engage in analytic thinking in the sense that the

accused need not be capable of making decisions in their own best interests.

 Ibid

 The test is actually the “untness to stand trial test” in that we are all presumed to be “t”; the test pertains

to those who may not be (s. ).

 This has always been a mischaracterization/misnomer. These questions came from an old Law Reform

Commission of Canada study report as questions that could be of assistance in informing a decision as to

one’s untness.

 While it is true that what is in “one’s own best interests” is a matter of perspective, one might argue that

where an objective failure to act in one’s own best interests is the product of a mental disorder that has ren-

dered the accused incapable of rational thought, the “rules” should step in to protect.