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

AuthorRichard D. Schneider/Caitlin Pakosh/Lora Patton
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
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
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
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);
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.
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.

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