A criminal charge can be a symptom of a much deeper issue. In Ontario, the justice system is increasingly aware that individuals with mental health challenges — such as schizophrenia, bipolar disorder, or severe PTSD — should not always be held “criminally responsible” in the traditional sense.
However, the path from a criminal cell to a treatment-focused resolution is paved with complex medical assessments and specialized court appearances.
Kazandji Law‘s Ontario mental health defence lawyers specialize in “NCR” (Not Criminally Responsible) claims and Mental Health Court diversions. We don’t just look at the police report; we look at the clinical history. Our goal is to shift the focus from punishment to rehabilitation, ensuring that you or your loved one receives help rather than a prison sentence.
Not Criminally Responsible (NCR): Section 16
The highest-stakes mental health defence is found in Section 16 of the Criminal Code. To be found NCR, we must prove that at the time of the offence, the individual was suffering from a “mental disorder” that rendered them incapable of:
- Appreciating the nature and quality of the act; or
- Knowing that the act was wrong.
This is not an “acquittal” in the traditional sense. If found NCR, the individual is placed under the jurisdiction of the Ontario Review Board (ORB).
This can lead to a “Conditional Discharge” or a “Detention Order” in a psychiatric hospital. Our Ontario mental health defence lawyers guide families through this process, ensuring that the eventual disposition is focused on the best interests of the client.
Mental Health Diversion: A Path to Withdrawal
For less serious offences, we often pursue “Mental Health Diversion.” Many courthouses in Ontario (like Old City Hall or Brampton) have dedicated Mental Health Courts.
If we can prove that the offence was “spiritually” linked to a mental health issue and that the client is now engaged in treatment, the Crown may agree to withdraw the charges entirely once a “Diversion Plan” is completed.
This is the ideal outcome, as it avoids both a criminal record and the potential long-term supervision of the Review Board. Our Ontario mental health defence attorneys work with social workers, psychiatrists, and community agencies to build a plan that the Crown can trust.
FAQs: Mental Health and the Law in Ontario
Is NCR the same as an “Insanity Defence”?
“Insanity” is an outdated term. Section 16 is the modern legal standard. It is about “capacity.” Did the person actually understand what they were doing and that it was illegal?
What happens if I’m found NCR?
You will likely be sent to a psychiatric facility for an initial assessment. The Ontario Review Board will then hold a hearing every year to decide if you can be released into the community.
Can “Fitness to Stand Trial” stop a case?
Yes. Under Section 2, if a person cannot understand the court process or instruct their lawyer, the case is “paused” until they are made fit through treatment.
Will I have a criminal record if the charges are diverted?
No. If you complete a Mental Health Diversion, the charges are withdrawn. You walk away with a clean criminal record.
Can a “Personality Disorder” be a defence?
Generally, personality disorders (like Borderline or Antisocial) are not enough for an NCR finding, but they are very relevant for sentencing and diversion applications.
What is a Section 21 Assessment?
This is a court order that sends a person to a hospital (like CAMH or Ontario Shores) for a 30-day psychiatric evaluation to see if they are fit or if NCR applies.
What is the Ontario Review Board (ORB) and what kind of cases does it handle?
The Ontario Review Board (ORB) is an independent tribunal established under the Criminal Code that manages individuals whom a court has found to be Not Criminally Responsible (NCR) or Unfit to Stand Trial due to a mental disorder. Unlike the criminal justice system’s focus on punishment, the ORB’s mandate is to balance public safety with the specialized needs and eventual reintegration of the accused.
The board handles cases where a person’s mental state at the time of an offence rendered them incapable of appreciating the nature of their actions or knowing they were wrong. It conducts annual hearings for each individual to determine their level of risk and issues “dispositions” that range from secure detention in a psychiatric hospital to a conditional or absolute discharge into the community.
How can I find a mental health lawyer in Ontario?
You can utilize the Law Society Referral Service for general options, though many seeking specialized expertise in NCR and diversion cases turn to established firms like Kazandji Law for their deep familiarity with the Ontario Review Board. Selecting a firm that bridges the gap between psychiatric healthcare and criminal defence is vital for securing a resolution focused on recovery rather than punishment.
Is addiction a mental health defence?
Addiction on its own is not usually a defence to a crime, but it is a major factor in “Drug Treatment Court” diversions or as a mitigating factor in sentencing.
Can PTSD be used for self-defence claims?
Yes. If a person with PTSD has an exaggerated “startle response” or a flashback, it can explain why they perceived a threat that a “reasonable person” might have missed.
What if my family member is in jail and won’t take their medication?
We can bring an application to have them moved to a “Treatment Unit” within the jail or to a hospital under a “Treatment Order” if their fitness is in question.
Why hire Kazandji Law? Our Ontario mental health defence lawyers are empathetic and patient. We know how to navigate the bureaucratic world of hospitals and the ORB to ensure the system doesn’t forget our clients.
A Focus on Healing, Not Just Hiding
A mental health crisis shouldn’t lead to a life behind bars. We provide the specialized advocacy needed to bridge the gap between the medical and legal worlds. Contact our Ontario mental health defence attorneys today to discuss how we can help your family member find a treatment-based resolution.