Mental Health Defence Lawyer in Markham

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Someone you love was arrested in Markham during a mental health crisis, or you were, and the phone calls, holding cells and court dates are arriving faster than the answers. This page walks through how Ontario criminal law actually treats mental illness: fitness to stand trial, the not criminally responsible verdict, the Ontario Review Board, and the quieter resolutions most families never hear about until a lawyer explains them. It is general information, not advice about your file. If the crisis is happening right now, call 988, Canada's suicide crisis helpline, or 1-855-310-COPE in York Region. If the arrest has already happened, call us.

Reviewed by Fadi Matthew Kazandji, Founding Partner, Kazandji Law · Serving Markham & York Region

Your relative was arrested in a crisis. What happens tonight?

Start with the mechanics, because they are the same whether the person arrested lives with schizophrenia, bipolar disorder or no diagnosis at all. After an arrest in Markham, York Regional Police decide whether to release the person with conditions or hold them for bail, and someone who is held must generally be brought before a justice within 24 hours. All York Region criminal matters, Markham files included, run through the courthouse at 50 Eagle St. W. in Newmarket. Markham itself is policed by YRP's #5 District, and Thornhill by #2 District.

Two things matter enormously in those first hours. First, the person in custody should ask for a lawyer and then stop talking about the incident. That is hard for someone in crisis, which is exactly why families call counsel early. Second, do not coach anyone on what to say, not to police, not to a psychiatrist, not to duty counsel. Well-meaning coaching creates problems that follow the file for months.

Sometimes there is no arrest at all. Under s. 17 of Ontario's Mental Health Act, police can bring a person directly to hospital for examination by a doctor when urgent safety criteria are met. York Regional Police also describe joint crisis response teams that pair officers with community crisis workers, and the region is served by the 1-855-310-COPE crisis line. A hospital apprehension is a health process rather than a criminal charge, but the two can happen together, and anything said at the hospital can still surface later. If charges follow, get legal advice before anyone gives a statement.

And if you found this page in the middle of a crisis that has not touched the justice system yet, call 988, Canada's suicide crisis helpline, or 911 when someone's safety is in immediate danger.

Was it the illness, or was it a crime? The two questions the law actually asks

Families usually arrive with one question: he was sick, so how can he be guilty? The Criminal Code splits that into two separate questions, asked about two different points in time.

The first is fitness to stand trial, and it is about right now. A person is unfit when a mental disorder leaves them unable to conduct a defence or instruct a lawyer, and in particular unable to understand the nature or object of the proceedings, understand their possible consequences, or communicate with counsel. Every accused is presumed fit under s. 672.22 unless a court is satisfied otherwise on the balance of probabilities. If reasonable grounds to doubt fitness appear at any stage before verdict, s. 672.23 lets the court try the issue on its own motion or on application by either side, and whoever raises it carries the burden of proving unfitness.

The second question is criminal responsibility, and it looks backward to the moment of the alleged offence. Under s. 16, no one is criminally responsible for an act committed while a mental disorder made them incapable of appreciating the nature and quality of the act, or of knowing that it was wrong. The Code presumes people do not suffer from a mental disorder for this purpose; the party raising the issue, almost always the defence, must prove it on the balance of probabilities.

The two questions are independent. A person can be fit for trial today yet have been NCR at the time of the incident. Someone found unfit can become fit with treatment and then stand trial in the ordinary way. And both can arise inside a single Markham file, which is why the early strategy meeting matters so much.

The assessment order: where the serious questions get answered

Neither fitness nor responsibility gets decided on impressions. Under s. 672.11 of the Criminal Code, a court can order an assessment of an accused person's mental condition where there are reasonable grounds to believe that evidence is necessary to decide, among other things, whether the person is fit to stand trial, whether they were suffering from a mental disorder that exempts them from responsibility under s. 16(1), or what disposition should follow a verdict of unfit or NCR.

In practice that means a forensic psychiatrist, a set of interviews, collateral records and a written report that lands on the desks of the judge, the Crown and your lawyer. That report often becomes the single most influential document in the case. So preparation is not optional. Before any assessment we make sure the client understands what the psychiatrist is deciding, what the process will look like and how their history will be gathered, because confusion at this stage produces reports that hurt.

Assessment orders also have quieter uses. A thoughtful report can anchor a bail plan, support diversion discussions with the Crown at Newmarket, or shape sentencing submissions later, even in files where s. 16 is never raised at all.

If the court finds your family member unfit to stand trial

An unfitness finding is not a conviction, and it is not the end of the case. It is a pause, built around treatment, and the law is deliberately structured to stop it from becoming a life sentence by another name.

Here is the architecture. Once someone is found unfit, the trial process stops and the person comes under the jurisdiction of the Ontario Review Board, with the court keeping certain residual powers. There is a narrow window right after an unfit verdict in which a court can order treatment aimed at restoring fitness; the Review Board itself cannot order treatment. Counsel must be provided for an unfit accused at Board proceedings, and an unfit person cannot receive an absolute discharge from the Board, so the case does not simply evaporate either.

Three safety valves matter most to families:

• The two-year inquiry. Under s. 672.33, the court must hold an inquiry no later than two years after the unfitness verdict, and every two years after that, to decide whether the Crown can still put forward enough evidence to try the person. That burden sits on the prosecutor, and the accused can ask for an earlier inquiry where there is reason to doubt the Crown still has a case.
• The acquittal exit. If sufficient evidence cannot be adduced, s. 672.33(6) requires the court to acquit. Timelines can be extended for the proper administration of justice, but the default direction is toward resolution, not indefinite limbo.
• The permanently unfit accused. The Code also has a mechanism for ending proceedings against a person who will never become fit. It is technical, and whether it applies to your situation is a conversation for counsel, not a webpage.

One more provision surprises people: s. 672.29. Where an accused who has been in custody is found fit, the court can order detention in a hospital until the trial ends if there are reasonable grounds to believe the person would become unfit again if released. Fitness, in other words, is something the system watches all the way through the case.

If the answer is not criminally responsible: the Review Board takes over

An NCR verdict under s. 16 is a special verdict. The person is not convicted, and it is technically incorrect to call them acquitted; the finding is that a mental disorder made them incapable of appreciating the nature and quality of the act or of knowing that it was wrong. What follows is not a sentence. It is supervision by the Ontario Review Board, the independent tribunal the Criminal Code requires every province to establish under s. 672.38.

The Board sits in panels chaired by a judge or a senior lawyer, always with psychiatric expertise at the table, and its hearings are mostly held in the hospital where the person is being treated. The first review generally happens within 45 days of the verdict, or 90 days where the court itself made the initial disposition. Reviews then continue at least every twelve months, and appeals from Board dispositions go directly to the Court of Appeal for Ontario.

At every hearing the governing test is s. 672.54. Taking into account the safety of the public, which is the paramount consideration, the mental condition of the accused, the reintegration of the accused into society and the other needs of the accused, the court or Board must make whichever of these dispositions is necessary and appropriate in the circumstances:

• an absolute discharge, which must be granted where the person is not a significant threat to the safety of the public;
• a discharge subject to conditions; or
• detention in custody in a hospital, subject to conditions.

The process is inquisitorial rather than adversarial, which means the Board must itself search out evidence on both sides. Good counsel still changes outcomes. Hospital reports get tested, conditions get negotiated, and the difference between a conditional discharge and another year in a designated forensic hospital often lives in the preparation.

The everyday alternative: diversion and support at the courthouse serving York Region

Here is the part the headlines skip. Most Markham files where mental illness plays a role never go anywhere near an NCR hearing. They resolve through mental health diversion, Crown negotiation and structured support, quietly and often without a criminal conviction.

The Ontario Court of Justice operates specialized mental health courts and community support courts across the province. Every location is customized, but the court describes the common elements: designated sitting days, eligibility criteria, a dedicated judge, Crown and duty counsel, mental health court workers, mental health diversion, and fitness to stand trial work. Entry into a community support court stream typically starts with an application to the local Crown Attorney. No one can promise diversion; eligibility is the Crown's call and depends on the charge, the person's circumstances and the plan put in front of them.

In York Region the practical picture looks like this. All criminal matters for Markham are heard at 50 Eagle St. W. in Newmarket, and court support programs run by the Canadian Mental Health Association's York Region and South Simcoe branch describe court support workers at the Newmarket courthouse and a community treatment court stream operating within it, helping with bail plans, treatment plans and mental health diversion. Referrals can come from any source, including defence counsel, and participation is voluntary.

What actually moves these files is preparation: a diagnosis documented, a treatment relationship started, housing and family support organized, and a lawyer presenting the package to the Crown early rather than at the fourth appearance. We have seen what a credible plan does for charges ranging from mischief and minor theft and shoplifting allegations to harder files where diversion takes real persuasion.

Bail in York Region with a treatment plan attached

For anyone held for a bail hearing, the ordinary rules apply: release is the norm, detention the exception, and conditions must be reasonable. What changes in a mental health file is what a strong plan looks like. A proposed surety, usually a family member, paired with a concrete treatment plan beats a vague promise every time. Think named doctor or clinic, a medication routine, a stable place to live, and someone responsible enough to supervise.

Conditions deserve just as much attention, because conditions are where mental health files go sideways. A person in crisis who breaches picks up fresh charges, and the cycle compounds itself. We push for terms the client can actually keep. Our Markham bail lawyer page walks through the process, the 24-hour rule and weekend courts in more detail.

Pre-charge context helps too. Where YRP's crisis teams or the COPE line were involved before any arrest, those records can support both release and later resolution discussions, because they show a health problem already being treated as a health problem.

What a mental disorder defence is not

This is the honesty section. Some of the hardest conversations in this practice area are about what s. 16 does not cover.

Ordinary intoxication is not a mental disorder. Being drunk or high at the time of an offence does not open the s. 16 door, and even extreme intoxication is governed by its own narrow rules in s. 33.1, re-enacted by Parliament in 2022. Under that section a person can still be held responsible for a violent offence where consuming the intoxicants was a marked departure from the standard of reasonable care. The intoxication route is far narrower than people assume.

A diagnosis alone is not a defence either. Plenty of people living with depression, anxiety or a personality disorder face charges that have nothing to do with their condition, and a personality disorder by itself rarely gets near the s. 16 standard. Nor does saying I do not remember; amnesia about an event is not the same as being incapable of appreciating it while it happened.

And the bar is high by design. The party raising the defence must prove, on the balance of probabilities, that a mental disorder made the person incapable of appreciating the nature and quality of the act or of knowing it was wrong. Most files are fought on other ground: intent, credibility, Charter issues, diversion, sentencing. Part of the job is picking the right ground.

The decision that shapes everything: whether to raise mental health at all

Raising s. 16 is a strategic decision with a price tag most people never see coming. Review Board supervision is open-ended, and it can last longer than the sentence a conviction would have produced. For a minor charge, an NCR verdict can be a worse practical outcome than a negotiated plea. For a serious one, like the allegations we discuss on our Markham homicide page, it can be the difference between a penitentiary sentence and a treatment path that leads home. The defence chooses whether to put responsibility in issue, and in defined circumstances the Crown can raise it too, which is one more reason the timing and framing belong in experienced hands.

Mental health also matters in quieter ways that have nothing to do with Part XX.1 of the Code. A documented condition can negate the specific intent some offences require. It can anchor a bail plan. It can support diversion. And at sentencing it can be powerful mitigation, moving a file away from jail and toward treatment-focused outcomes. None of that requires an NCR verdict; all of it requires evidence gathered early and presented well.

Families comparing notes across the GTA sometimes ask how this works in Toronto's dedicated courts; we cover that on our Toronto mental health defence page. And because these files rarely travel alone, we also defend the situations that most often carry a mental health dimension, from disputed and false allegations to self-defence cases across Markham and York Region.

Sentencing, records and the long game

Suppose the case never becomes a fitness or NCR file, because most do not. Mental health still shapes how it should end.

At sentencing, a documented mental health picture changes the conversation. Sentencing is individualized, and a condition that explains how a person ended up before the court, or that reduces their degree of responsibility, is a recognized mitigating consideration. It also shapes the practical design of a sentence: what conditions make sense, what treatment should continue, and whether jail would undo two years of clinical progress. We build that record deliberately, through treating physicians, clinical notes, family evidence and, where it helps, a fresh expert report.

Families ask what they can do. Here is a practical answer: gather the paper. A list of diagnoses and hospitalizations, the names of treating doctors, current medications, community supports already in place, and letters from any program the person attends. Bring all of it to the first meeting. Files move faster and resolve better when the clinical story arrives organized, and it is the one part of the defence a family can genuinely carry.

And think about the record. How a mental health file ends determines what follows the person around: a conviction, a discharge, a diverted charge that quietly disappears, or an NCR verdict with its own long tail. Employment, travel, insurance and any future bail hearing will each read that ending differently. Part of our job is making sure the resolution chosen today still looks like the right choice five years from now.

None of this is theoretical in York Region. The Crown office at Newmarket screens these files, the courthouse hosts the support programs described above, and the difference between a rushed plea at an early appearance and a structured resolution is usually a few weeks of disciplined work. Those weeks are where these cases get won quietly.

Why families across Markham call Kazandji Law

Mental health files reward lawyers who move early and speak both languages, legal and clinical. Founding partner Fadi Matthew Kazandji defends these cases with a straightforward approach: protect the client tonight, get the assessment and the evidence right, and choose the path, whether trial, diversion or Part XX.1, with the family's eyes open.

• Four offices across the GTA: Thornhill at 7191 Yonge St., Suite 310, minutes from Markham and serving all of York Region, plus Toronto at 180 John St., Unit 320, North York and Oakville.
• A defence-only criminal practice, from the bail hearing through trial and Review Board proceedings.
• Free, confidential consultations, and results you can read for yourself on our recent successes page.

Frequently asked questions

This page is legal information for people in Markham and York Region, not legal advice about any specific case, and reading it does not create a lawyer and client relationship. Court locations, community programs and Criminal Code provisions described here can change over time. If you or a family member faces charges, get advice about your own situation from a criminal defence lawyer. Kazandji Law serves Markham from its Thornhill office at 7191 Yonge St., Suite 310.