What does it mean to be Not Criminally Responsible due to Mental Disorder

Each year approximately 20% of Canadians experience a mental health problem or illness and by age 40 half of Canadians will have or have had a mental illness. What happens when a person suffering from a mental illness is incapable of controlling their actions and commits a crime?

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Our criminal code takes steps to protect people who are suffering from a mental illness from being punished for actions they took while they were unable to make rational choices.

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Legal Test

The defense of mental disorder prevents a person from being found criminally responsible if they were incapable of making rational or autonomous choices. It is only available once the individual has pled guilty or was found to be guilty after trial, and if it is successful, the conviction will not be entered, and no penalty will be imposed for the commission of the crime.

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A successful NCR verdict requires the defense to show that:

1. The person committed the act, and
2. At the time the person committed the act they were
3. Suffering from a mental disorder, and
4. Unable to appreciate the “nature and quality” of the act, or
5. Did not know it was wrong.

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The presumption for all accused is that they were not suffering from a mental disorder when they committed the crime. Determining if someone was suffering from a mental disorder involves an assessment from a psychiatric professional, usually Alberta Health Services, and expert evidence presented at trial.

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Not every condition that impairs the mind will fall under the legal definition of “mental disorder”. Voluntary consumption of drugs causing psychosis and transitory states like hysteria or concussion were categorically excluded by the Supreme Court in 1979. Other disorders have been found to meet the definition in some cases, including sleepwalking, suffering from paranoid delusions, or intellectual disabilities.

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To determine if the accused “appreciated” the “nature and quality” of the act involves an analysis of the accused’s mind at the time of the offense. Appreciation requires that the accused had some knowledge, or a base level of awareness of the act, and then performed some analysis of the situation.

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The third prong requires an inquiry into the morality of the act and the Court must determine whether the act was morally wrong, and if so, whether the accused knew, or had a base level of awareness, that the act was morally wrong.

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Consequences of an NCR verdict

Although an NCR verdict will prevent the accused from being found guilty, it does not necessarily mean they are allowed to walk out of the courtroom free and clear. The file will be transferred to a Review Board who will consider whether the accused is a threat to public safety. If they are not, then they released without conditions and are no longer under the Review Board’s jurisdiction.

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It is more common for the accused to be found to be a threat to public safety. In that case, they remain under the jurisdiction of the Review Board indefinitely, or until such a time that they are found to not be a danger to the public. The Review Board is responsible for taking steps to protect the public. This could include detainment in a psychiatric hospital, or release with conditions.

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