Criminal Law

Mental Disorder: Some Main Preliminary Points

Mental Disorder Definition/Terms

 Criminal Code section 2: Mental disorder is a “disease of the mind”.

 Case law explains mental disorder as “any illness, disorder or abnormal condition which

impairs the human mind and its functioning, excluding…self-induced states caused by alcohol

or drugs, as well as transitory mental states such as hysteria or concussion” (R. v Cooper).

 Mental disorder is internal NOT external (i.e., drugs, or alcohol induced).

 Fitness principle: it is UNJUST to try an accused who does NOT comprehend the criminal

proceedings and/or who cannot meaningfully partake in the criminal proceeding due to their

mental condition.

o Unfit to stand trial as per section 2 of the Criminal Code = “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.

 NCRMD = Not criminally responsible by reason of mental disorder

Stages of the Criminal Justice System

 Mental health issues can become critical or relevant at any stage of a criminal proceeding:

initial police contact; initial appearance of accused; any stage of proceeding when issue of

fitness to stand trial is brought up; and any time evidence accused has mental disorder at time of

offence is admitted.
Alternatives to prosecution

 When is the initial or first time a person is entered into the criminal system or process as a

mentally disordered individual? It is usually when a 911 call is made.

 The police may not lay charges; it is up to their discretion. The police may admit the person to a

psychiatric facility.

 If a person is fit to stand trial, the Crown may still decide not to prosecute.

 The criminal justice system is not always best suited for individual who have mental conditions

or disorders. Diversion is a system where an accused’s criminal charges are conditionally

stayed. For pre-charge and post-arrest, diversion may be best for these individuals.

 Diversion is an alternative to prosecution; it concentrates on restoration and remediation.