Mental Health Defence Lawyer in Toronto

Home › Criminal Defence › Mental Health Defence

A criminal charge that lands in the middle of a mental health crisis is really two emergencies at once, and Toronto has built machinery for exactly this situation. There is a mental health court stream at the 10 Armoury St. courthouse, a diversion process the Crown controls, and a set of Criminal Code rules on fitness and criminal responsibility that most families have never heard of until the night they need them. This page walks through how a Toronto mental health file actually gets routed, who makes each decision, and where a defence lawyer changes the outcome.

Reviewed by Fadi Matthew Kazandji, Founding Partner, Kazandji Law · Serving Toronto · Updated July 2026

The three tracks a Toronto mental health file can take

When mental illness and a criminal charge collide, the file does not follow one path. It follows one of three, and the first job of defence counsel is figuring out which one serves you.

Track one is diversion. For eligible, less serious charges, the Crown can agree to resolve the case through a support and treatment plan instead of a prosecution. The charge is typically withdrawn or stayed once the plan is done, and there is no criminal conviction. The Crown holds this key, not the judge and not the defence, which is why the quality and timing of the application matter so much.

Track two is the fitness and criminal responsibility track. This is the formal machinery of Part XX.1 of the Criminal Code: psychiatric assessments ordered under section 672.11, fitness hearings, and in rare cases a verdict of not criminally responsible under section 16. Courts decide these questions, on evidence, with consequences that can last longer than any sentence. Nobody should wander into this track without understanding it first.

Track three is an ordinary prosecution in which mental health is context rather than defence. The illness shapes bail, negotiations with the Crown, trial issues about intent, and sentencing. Most files, honestly, live here. An assault allegation that arose during a crisis is still an assault file, and it gets defended like one; see our Toronto self-defence page for where those doctrines meet.

The tracks are not sealed off from each other. A file can start ordinary, move to diversion once a treatment plan comes together, or need a fitness assessment mid-stream. And every one of these decisions interacts with the others. Raising responsibility issues carelessly can cost you a diversion outcome that was there for the taking. That is the strategic work this page keeps coming back to.

Toronto's mental health court, demystified

Toronto did not just adopt the mental health court model. It invented it in this country. Canada's first mental health court opened at Old City Hall in 1998, and when Toronto's criminal courthouses were consolidated, that work moved with everything else. Today the Ontario Court of Justice runs its Toronto criminal operations at the courthouse at 10 Armoury St., which amalgamated six former locations and houses specialized mental health courts alongside Gladue, drug treatment and youth courts.

The OCJ is candid that every mental health court is customized to its community, but it describes the elements they share, and that list is a useful map of what to expect:

• designated sitting days rather than a permanent standalone courtroom;
• eligibility criteria that decide which cases enter the stream;
• a dedicated judge, Crown counsel and duty counsel, trained or specially assigned to the court;
• mental health court workers who connect people to assessments, treatment and housing;
• mental health diversion as a core function; and
• fitness to stand trial work.

The OCJ also operates Community Support Courts for people whose charges are tangled up with mental health needs, addiction needs, or both. Entry runs through an application to the local Crown Attorney. Once a person is admitted, court workers assess their needs, a treatment plan is built, the case is adjourned with check-in dates, and completing the plan completes the case.

Getting a file into the right stream is lawyer's work. It means knowing the eligibility screens, assembling the medical picture early, and putting a concrete plan in front of the Crown instead of a bare request. We do that groundwork before the first substantive appearance whenever the file allows it.

Mental health diversion: resolving a charge with a plan instead of a record

Diversion is the quiet workhorse of Toronto mental health defence. The concept is simple. For an eligible charge, the Crown agrees that prosecution is not the right tool, the person follows a support and treatment plan, and the charge is resolved without a criminal conviction.

Three things about it are less simple.

First, eligibility is the Crown's decision, made case by case on the charge, the person's circumstances and the plan in front of them. No lawyer can promise diversion, and you should be wary of anyone who does.

Second, the strength of the plan drives the outcome. A diversion application supported by a diagnosis, a treating physician, a medication regime, counselling and stable housing reads very differently from a bare assertion that treatment would help. Mental health court workers at the courthouse help build these supports; defence counsel's job is to arrive with the package as complete as the timeline allows.

Third, timing matters. Diversion conversations go best before positions harden, ideally in the earliest resolution discussions with the Crown. A file that drifts through appearances without a plan is a file losing its best exit. For the province-wide picture of how these principles apply outside the city, see our Ontario mental health defence guide.

Fitness to stand trial: the question the court asks about right now

Fitness is about the present tense. Section 2 of the Criminal Code defines a person as unfit to stand trial when, on account of mental disorder, they cannot conduct a defence or instruct counsel before a verdict is rendered, and in particular cannot understand the nature or object of the proceedings, understand their possible consequences, or communicate with counsel.

Every accused is presumed fit. Under section 672.22, that presumption holds unless the court is satisfied on the balance of probabilities that the person is unfit. If reasonable grounds to doubt fitness appear at any stage before verdict, section 672.23 lets the court try the issue on its own motion or on application by the defence or the Crown, and whoever raises the issue must prove unfitness on that same balance of probabilities.

The evidence usually comes from an assessment ordered under section 672.11, which lets a court have the accused's mental condition examined where that evidence is necessary to decide fitness, criminal responsibility under section 16, or certain other defined questions. Assessments are clinical, but they are not casual conversations, and counsel prepares clients before they happen.

What happens after an unfitness finding surprises people. The case pauses; it does not end, and it does not become a conviction. Treatment is usually the focus, and there is a narrow window in which a court can order treatment right after an unfit verdict to try to restore fitness. A person who becomes fit again faces trial in the ordinary way. Section 672.29 also lets a court keep an accused who was in custody in a hospital until trial ends where there are reasonable grounds to believe the person would become unfit again if released.

And the law has an answer to the fear of endless limbo. For a person found unfit, section 672.33 requires the court to hold an inquiry no later than two years after the verdict, and every two years after that, at which the Crown must show it still has sufficient evidence to put the person on trial. That burden sits on the prosecutor. If sufficient evidence cannot be shown, the court must acquit. A separate mechanism exists for ending proceedings against an accused who is never likely to become fit; how it applies is intensely fact-specific, so ask us rather than assuming.

Not criminally responsible: what section 16 actually says

Criminal responsibility is about the past tense, the moment of the alleged act. Section 16(1) says no person is criminally responsible for an act or omission made while suffering from a mental disorder that rendered them incapable of appreciating the nature and quality of the act, or of knowing that it was wrong.

Read that twice, because both halves are narrow. Incapable is a high bar. Many people live with serious diagnoses and still appreciate what they are doing and that it is wrong; a diagnosis alone has never been enough. The question is capacity at the time of the act, on the specific facts, usually answered through retrospective psychiatric evidence.

The Code also sets the burden. Under section 16(2), everyone is presumed not to suffer from a mental disorder that exempts them from responsibility until the contrary is proved on the balance of probabilities, and under section 16(3) the burden of proof rests on the party that raises the issue. In practice that party is almost always the defence, which is one reason the decision to raise it belongs in experienced hands. In defined circumstances the Crown can put responsibility in issue too.

Question	Fitness	NCR under section 16
What it asks	Can you take part in the proceedings now: understand them, understand their consequences, communicate with counsel	Could you appreciate the nature and quality of the act, or know it was wrong, at the time of the act
When it looks	The present, at any stage before verdict	The past, at the moment of the alleged offence
Standard and burden	Balance of probabilities, on the party raising it	Balance of probabilities, on the party raising it
Result	Case pauses, usually with treatment; the Crown faces two-year inquiries; trial resumes if fitness returns	Special verdict; the Ontario Review Board takes over disposition

An NCR verdict is neither an acquittal nor a conviction. It is a third thing: a finding that the act happened but that the person was not morally responsible for it. The Ontario Review Board itself points out that calling an NCR accused acquitted is technically incorrect. Nobody walks free at the courthouse door because of the verdict, and nobody is sentenced either. What happens next belongs to the Review Board, and both can arise in one file: a person can be found fit for trial and still be found NCR for the moment of the act.

After an NCR verdict: the Ontario Review Board takes over

Part XX.1 of the Criminal Code requires a Review Board in every province to make and review dispositions for people found NCR or unfit; section 672.38 is the anchor. Ontario's is the Ontario Review Board, an independent tribunal that sits in panels chaired by a judge or senior lawyer and including at least one psychiatrist. The parties at a hearing are the accused, the hospital and the Attorney General, and hearings usually take place at the hospital where the person is being treated. In Toronto that clinical interface is a designated forensic hospital; the Centre for Addiction and Mental Health operates a dedicated forensic psychiatry division in the city.

The Board's job is the disposition. Under the current section 672.54, the court or Review Board must take into account the safety of the public, which is the paramount consideration, along with the person's mental condition, their reintegration into society and their other needs, and then make the disposition that is necessary and appropriate in the circumstances. Three dispositions exist:

• an absolute discharge, which ends Review Board jurisdiction and is required where the person is not a significant threat to the safety of the public;
• a conditional discharge, meaning life in the community under conditions; or
• detention in custody in a hospital, itself subject to conditions.

The Criminal Code now defines the threshold term. A significant threat to the safety of the public means a risk of serious physical or psychological harm to members of the public, including victims, witnesses and people under 18, resulting from conduct that is criminal in nature but not necessarily violent.

Some structural points worth knowing. The Board's first hearing generally happens within 45 days of the verdict, or 90 days where the court itself made the initial disposition, and reviews then happen at least every 12 months. Counsel must be provided for an unfit accused. The Board cannot order treatment; treatment stays a clinical matter, apart from that narrow court-ordered window right after an unfit verdict. An unfit accused cannot receive an absolute discharge from the Board, because the court keeps residual jurisdiction until fitness returns or the statutory exits apply. And appeals from Ontario Review Board dispositions go directly to the Court of Appeal for Ontario.

Ordinary plea, diversion or NCR: what each path really costs

Families often arrive assuming NCR is the merciful outcome and a plea is the harsh one. The truth is messier, and the honest way to show it is side by side.

Path	Criminal record	Who decides	Supervision afterward	Review and exit
Ordinary plea or conviction	Yes	You, on advice; then the court on sentence	Fixed: the sentence and any probation end on a date	Appeal rights; record relief possible years later
Mental health diversion	No conviction; the charge is typically withdrawn or stayed	The Crown	The treatment plan, for its duration	Case completed when the plan is completed
NCR verdict	No conviction, but a special verdict with its own consequences	The court, on psychiatric evidence	Ontario Review Board jurisdiction: absolute discharge, conditional discharge or hospital detention	Review at least every 12 months; absolute discharge only on the significant-threat test

Look hard at the two right-hand columns. Review Board supervision has no fixed end date. It continues until an absolute discharge, and for a serious allegation it can run longer than any realistic sentence would have. For some clients it is still the right path, because structured treatment is what they need and the alternative is jail without care. For others it is a trap dressed as mercy. The defence chooses whether to raise section 16, the Crown can raise it only in defined circumstances, and that choice deserves the same rigour as any trial decision. We put this comparison on the table before anything is filed, with the family in the room when the client wants them there.

Bail at 2201 Finch with a treatment plan attached

Every adult bail hearing in Toronto, weekends and holidays included, runs through the Toronto Regional Bail Centre at 2201 Finch Ave. W. An arrested person must be brought before a justice promptly, normally within 24 hours, so the first decisions in a mental health file happen fast, and they happen at Finch before anyone sees 10 Armoury St.

Bail law starts from a presumption of release on the fewest conditions that will do the job, and the practical argument in these files is the plan: housing that is actually stable, a treatment connection that is real rather than aspirational, medication management, a surety who understands the illness, and conditions the person can genuinely follow. Vague conditions set people up to fail, and a breach charge stacked on the original allegation makes everything harder. We draft release plans the way we would want to cross-examine them. For the wider bail framework, see our Toronto bail lawyers page.

Toronto's crisis infrastructure matters here too. The city runs the Toronto Community Crisis Service, a non-police mental health crisis response available around the clock for people 16 and older through 211, and Toronto Police operate Mobile Crisis Intervention Teams that pair a mental health nurse with a specially trained officer. Ontario's Mental Health Act also lets police bring a person directly to hospital for examination by a doctor when urgent safety criteria are met. A hospital apprehension is a health process, not a criminal charge, though the two can arrive together on one chaotic night. These services can anchor both a release plan and the story of what actually happened.

What mental health evidence does outside Part XX.1

Most Toronto mental health files never see a fitness hearing or a section 16 verdict. The psychiatric picture still works, just in quieter ways.

Intent. Some offences require the Crown to prove a specific state of mind. Evidence about a person's mental condition at the time can leave a reasonable doubt on that element without going anywhere near the NCR threshold. That is conventional criminal defence, fought with expert evidence where the file supports it.

Statements. People in crisis say things, to police, in cells, in hospital hallways. The Charter guarantees the right to counsel on arrest or detention, and courts can exclude evidence obtained through a breach where admitting it would bring the administration of justice into disrepute. How a statement was taken from a person in crisis, and whether their rights were meaningfully understood, are live issues in every one of these files.

Sentencing. Where a case ends in a finding of guilt, a documented mental health picture goes to moral blameworthiness, to the shape of a fit sentence, and to conditions that treat rather than merely punish. Judges can tell a genuine clinical history from a rehearsed excuse, and so can Crowns. The record we build for diversion or bail keeps paying dividends here.

What a mental health defence is not

Some honesty, because these misunderstandings damage real cases.

Being drunk or high is not a mental disorder. Ordinary intoxication has never been the section 16 route. The law treats intoxication and mental disorder as separate doctrines with separate rules, and slurring the two together helps nobody.

A personality disorder alone rarely does it. The section 16 question is capacity to appreciate the act or to know it was wrong, and most personality diagnoses do not remove that capacity in law.

Not remembering is not a defence. Memory loss after the fact says little about capacity during the act, and courts know it.

And NCR is not walking free. As the comparison above shows, the verdict trades a sentence for Review Board jurisdiction with no fixed end date. Anyone who pitches it as a loophole misunderstands the law and the client's interests at the same time.

Police interviews, crisis calls and the first 48 hours

The worst damage in these files usually happens early, and usually with good intentions.

If your family member has been arrested in Toronto, three rules carry most of the weight. First, no statements. Not from the client to police, and no coaching from the family either; a person in crisis explaining themselves to investigators is how weak cases become strong ones. Second, do not discuss the allegations with the client at the hospital or on recorded jail calls. Talk about health, safety and love, and leave the case to counsel. Third, start gathering the clinical record now: diagnoses, treating physicians, medication lists, prior admissions. That file is the raw material for bail, diversion and everything after.

If the police contact was a crisis call rather than an arrest, understand what may have happened: a Mobile Crisis Intervention Team response, a Toronto Community Crisis Service team, or a Mental Health Act trip to hospital that involves no charge at all. If a charge does follow, the sequence of who said what, to whom, and in what state becomes evidence. Where an allegation from inside the household is part of the picture, our Toronto false accusations page covers that terrain. Either way, get advice before anyone fills in gaps for investigators.

Why Kazandji Law

Kazandji Law defends criminal charges across the Greater Toronto Area as part of our broader criminal defence practice, from four offices: our Toronto headquarters at 180 John St., Unit 320, plus Thornhill at 7191 Yonge St., Suite 310 serving Markham and York Region, North York and Oakville. Founding partner Fadi Matthew Kazandji built the practice on early, thorough preparation. In mental health files that means the clinical record assembled before the first Crown meeting, a release plan that survives scrutiny at 2201 Finch, and the diversion or responsibility strategy chosen deliberately rather than by drift.

We work these cases with the family in the loop where the client wants that, in plain language, with the costs of every path on the table. You will not get promises from us. You will get the machinery explained honestly and worked properly.

Frequently asked questions

This page provides general legal information about mental health and criminal law in Ontario and is not legal advice. The law changes and every case is different; for advice about your specific situation, contact Kazandji Law at 647-588-3234 for a free consultation. Communications through this website do not create a lawyer-client relationship.