Type of document: Prosecution Directive
Effective date: November 14, 2017

An accused’s mental illness may influence whether they are able to meaningfully participate in the criminal proceeding or whether they understood fully what they were doing at the time of the offence. If a mental illness renders the accused unable to participate in conducting their defence or instructing counsel, an accused may be found ‘unfit to stand trial.’ If a mental illness affects the accused’s actions at the time of the offence such that they did not understand what they were doing or did not know what they were doing was wrong, the accused may be found ‘not criminally responsible (NCR).’

The Criminal Code sets out the legal requirements to determine fitness to stand trial and the finding of not criminally responsible.

Judicial interim release (bail)

When determining a position on bail, Prosecutors should recognize the unique circumstances and inherent vulnerability of an accused suffering from a mental illness. The accused should be released or a bail hearing held at the earliest opportunity having regard to the requirements of the Criminal Code.

The Prosecutor must be aware that even a brief period of detention can have a disruptive impact upon an accused dealing with a mental illness. These accused may not have access to the type of accommodation, resources, networks or supports that commonly exist for other members of the community. Pre-trial detention should never be used as a substitute for mental health or other social measures. If a psychiatric assessment is being sought at the bail stage, detention in custody may be necessary while the accused waits for space in a hospital.

Conditions of release shall not be imposed to change a mentally ill accused’s behavior or to punish the accused. These conditions often relate to therapeutic or rehabilitative measures and are more appropriate following conviction. The Prosecutor must ensure that any conditions she recommends on a bail release are necessary and appropriate to the circumstances of the accused and the alleged offence. Any conditions recommended should be specific to the case and none should be automatic. The Prosecutor should only request conditions that are necessary to ensure public safety or to ensure attendance, and with which an accused can realistically comply. The accused’s mental illness may impede the ability to understand and comply with conditions of release.

Reference should be made to the Judicial Interim Release (Bail) Directive.

Appointment of counsel

A mentally ill accused may require the assistance of counsel in the criminal proceedings yet not have the capacity to select and retain counsel. The Criminal Code and common law mandates a court to appoint counsel to assist an accused in these circumstances.

Psychiatric assessments

A psychiatric assessment may be requested if there are reasonable grounds to believe that an assessment is necessary to determine an accused’s ability to meaningfully participate in the criminal proceedings or to determine if the mental illness might have affected the accused’s actions at the time of the offence. The psychiatric assessment will assist the court in determining fitness to stand trial or criminal responsibility. As the issue of fitness and criminal responsibility are distinct, a psychiatric assessment should be ordered to address each individually.

In requesting a court ordered psychiatric assessment of the mentally ill accused, Prosecutors should consider the following factors:

  • the purpose of the assessment:
    • an assessment should be conducted for a stated purpose linked to the prosecution. An assessment must not be conducted for a purpose extraneous to the criminal law, such as placing the accused in a more favorable environment
  • the time required to conduct the assessment:
    • an assessment ought to be concluded within a fixed and reasonable amount of time which is specified in the order
  • the location of the assessment:
    • an assessment can be conducted in or out of custody.

Fitness to stand trial

An accused person is presumed fit to stand trial. If a mental illness impedes an accused capability to conduct a defence due to an inability to communicate with counsel or to understand the nature, object or consequences of the proceedings, the proceedings will be halted until such time that the accused is mentally fit to stand trial.

The issue of fitness to stand trial can be raised at any time during the criminal proceedings. The Prosecutor or defence counsel who believes the accused may be unfit must bring this matter to the court’s attention. The Prosecutor’s ability to raise the issue of fitness is subject to limitations set out in the Criminal Code.

When the issue of fitness arises, the court must conduct an inquiry and render a decision on the accused’s fitness.

Treatment disposition orders

Upon an accused being found unfit, a Prosecutor may make an application to the court for a treatment order if there is evidence that the accused could return to a fit state within a short period of time. Only a Prosecutor can request a treatment order. The accused’s consent to be treated is not a prerequisite for a treatment order. It is necessary to have the consent of the hospital or the person assigned responsibility by the court for the treatment prior to the court making the order. Prosecutors should consider the appropriateness of an out-of-court treatment order where public safety would not be compromised.

If a court is satisfied that the statutory criteria set out in the Criminal Code is met, an order directing that treatment be carried out for a specified period may be issued. If the accused becomes fit to stand trial following treatment, the criminal proceedings continue. If the accused remains unfit following treatment, jurisdiction over the accused will transfer to the Ontario Review Board.

“Keep Fit” orders

Where an accused is found fit to stand trial and is detained in custody pending trial and there is a concern they may become unfit, an order may be made that the accused be detained in hospital rather than a correctional facility. In all cases where a “keep fit” order is made, Prosecutors should consider measures to expedite the trial, including bringing the trial date forward where feasible.

Unfit accused

An accused that remains unfit to stand trial falls under the jurisdiction of the Ontario Review Board until the accused becomes fit to stand trial or until the court directs a stay of proceedings. Reference should be made to the Mentally Ill Accused: Post Verdict Issues Directive.

The Information containing the charges laid against the accused remains in court. Every two years, the Prosecutor shall establish the continued existence of evidence to support the elements of the offence that the accused would face at trial. If there is insufficient evidence, the accused shall be acquitted.

Not Criminally Responsible (NCR)

An accused that satisfies the test for a verdict of not criminally responsible on account of a mental illness shall not be convicted or acquitted. The verdict of not criminally responsible recognizes the criminal act was a product of the accused’s mental illness such that the accused should be treated, not punished. The Criminal Code recognizes that punishment is inappropriate and ineffective in these circumstances as the criminal act was not a product of any rational choice by the accused.

The Prosecutor’s ability to raise this issue during the trial is limited to those cases where the accused has made his mental capacity an issue in the trial. Where the Prosecutor has reason to believe that an accused may be not criminally responsible, the Prosecutor must raise this issue following a finding of guilt. If an accused is found not criminally responsible and the court does not grant an absolute discharge, the accused falls under the jurisdiction of the Ontario Review Board. Reference should be made to the Mentally Ill Accused: Post Verdict Issues Directive.

Ancillary orders

Upon a finding of not criminally responsible, the Prosecutor must consider whether a request should be made and make the application to the court for any of the following:

  • weapons prohibition
  • high-risk accused designation
  • DNA Databank Order
  • Sex Offender Information Registration Order
  • forfeiture order
  • High Risk Offender Flag.

The Ontario Review Board does not have the jurisdiction to make ancillary orders.

Reference should be made to the Weapons Prohibitions and Forfeiture Directive, the DNA Data Bank Orders Directive, the Criminal Asset Forfeiture Directive and the High-Risk National Flagging System Directive.

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