Criminal Code of Canada: ‘Not Criminally Responsible’ – Some Common Misconceptions


People that are Not Criminally Responsible
Section 16 of the Criminal Code of Canada sets up provisions for the intricate relationship that has come to exist between mental illness and the criminal justice system. At one time, criminals could be found “not guilty by reason of insanity,” but now, in Canadian court cases where mental illness is an issue, a person can be found not criminally responsible on account of a mental disorder. When a Judge or Jury determines that the individual that committed the act is “Not Criminally Responsible” rather than proceed to jail, they are normally sent to a psychiatric facility where they undergo treatment until doctor’s at that facility determine the individual is no longer deemed a significant risk to the public at large.

A Not Criminally Responsible (NCR) verdict does not mean a person gets to “walk” free, nor can anyone with a mental illness use the defence to avoid jail.

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  • MYTH: An NCR verdict means a person gets to “walk” free.

A person deemed NCR does not get to walk out of the courtroom free to go about their lives as they wish. They are placed under the authority of a provincial review board and sent to a psychiatric facility for treatment until they are no longer deemed a “significant risk.” Some spend more time hospital than they would have spent in jail if convicted of a crime.

  • MYTH: Anyone with a mental illness could commit a crime and then claim NCR to avoid jail.

Having a mental disorder is not enough to be found NCR. Anyone who advances the defence has to prove the disorder rendered them incapable of appreciating the nature and quality of the act or incapable of knowing that it was wrong. Crimes motivated by compulsive urges, such as paraphilias (sexual disorders), usually do not result in an NCR verdict. Likewise, most sociopaths or psychopaths — now called anti-social personality disorder — would not be found NCR on account of that disorder alone because it is unlikely the disorder would render them incapable of appreciating their actions and knowing right from wrong.

  • MYTH: The system is flooded with NCR cases.

It may seem that way because several high-profile cases have been in the news a lot lately, but in reality an NCR verdict is rendered in only two of every 1,000 criminal cases. NCR cases on charges of serious violence are even less common, representing an estimated 8.1 per cent of NCR cases overall.

  • MYTH: The system isn’t working. While it is difficult to compare recidivism rates from different data sets, research has consistently shown a stark difference between rates for NCR accused and the prison population. Recidivism estimates for people found NCR range from 7.5 and 20 per cent, while rates for those in the federal prison system range from 41 to 44 per cent.
  • MYTH: All mentally ill people are dangerous. The vast majority of mentally ill people are not violent. In fact, they are more likely to be the victims of violence than people who do not have a mental illness — 2.5 to four times more likely, according to the Canadian Mental Health Association.

Verdict of Not Criminally Responsible on Account of Mental Disorder

“Marginal Note”: Verdict of not criminally responsible on account of mental disorder

672.34 Where the jury, or the judge or provincial court judge where there is no jury, finds that an accused committed the act or made the omission that formed the basis of the offence charged, but was at the time suffering from mental disorder so as to be exempt from criminal responsibility by virtue of subsection 16(1), the jury or the judge shall render a verdict that the accused committed the act or made the omission but is not criminally responsible on account of mental disorder.

  • 1991, c. 43, s. 4.

“Marginal Note”: Effect of verdict of not criminally responsible on account of mental disorder

672.35  Where a verdict of not criminally responsible on account of mental disorder is rendered, the accused shall not be found guilty or convicted of the offence, but: the accused may plead autrefois acquit in respect of any subsequent charge relating to that offence;

any court may take the verdict into account in considering an application for judicial interim release or in considering what dispositions to make or sentence to impose for any other offence; and

the Parole Board of Canada or any provincial parole board may take the verdict into account in considering an application by the accused for parole or for a record suspension under the Criminal Records Act in respect of any other offence.

  • 1991, c. 43, s. 4;
  • 2012, c. 1, ss. 145, 160.

On February 8, 2013 the House of Commons introduced an amendment to the Criminal Code and the National Defence Act (Mental Disorder) and its’ short title is BILL C-54 Not Criminally Responsible Reform Act and it has already proceeded to second reading.

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