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The defence of mental disorder, which is commonly referred to a Not Criminally Responsible defence, or simply NCR, is used when a person is unable to appreciate the nature or quality of the crime they committed or even able to know it was wrong.

Not criminally responsible on account of mental disorder verdicts are rare. Only about 0.2% of cases in Canada end in an NCR verdict. Criminal lawyers raising an NCR defence may do so at any time during the course of the trial, including after a guilty verdict has been reached, but before a conviction is imposed.

Every person before the courts is presumed sane and fit to stand trial unless otherwise established by the party raising the issue. Then that party raising the defence of mental disorder, or sometimes referred to as a “disease of the mind” in the Canadian Criminal Code, must prove the NCR defence on a balance of probabilities. The lawyer raising the issue may draw on records of mental health treatment and/or medication before and since the incident, as well as family history of mental disorders; however, in almost every circumstance an expert report will be required.

A mental disorder alone does not guarantee a not criminally responsible verdict. A balance of probabilities needs to show that it is more likely than not that the criminal offence was a result of the mental disorder.


In Canada, the term “not guilty by reason of insanity” no longer applies. The insanity defence has been replaced by the mental disorder defence. Modern courts have a better appreciation of mental disorders and have changed their approach toward it.

Old ideas and understandings of insanity are outdated and carry negative connotations. Those once labelled insane were seen as dangerous, potentially violent offenders. Today, we understand that mentally ill people are rarely violent, and are 4 times more likely to be victims of violence.

The transition to not criminally responsible helps to reduce the stigma against mental illness. It also works with a better understanding of mental illness to appropriately react.


The goal of a not criminally responsible on account of mental disorder verdict is to protect public safety while treating the offender with dignity. Because the offender isn’t criminally responsible, they are not to be treated as criminals. However, NCR is not a get-out-of-jail-free card. Public safety remains a top priority.

To balance the two objectives, in this province the Ontario Review Board (ORB) assesses the accused. They determine the appropriate response, ranging from an absolute discharge to detention in a psychiatric or mental health hospital.


An NCR assessment can be ordered by a judge or requested by the Crown or defence. Defence lawyers usually wait to make this request until after the accused is found or pleads guilty. The assessment serves to determine whether the defendant was suffering from a mental disorder at the time of the offence.

If the assessment finds them not criminally responsible they attend a hearing by the Ontario Review Board.

The ORB includes a judge, a psychiatrist, and a social worker or relevant expert. They determine whether the accused is a threat to public safety, as well as the appropriate restrictions to minimize this threat.

If the Review Board does not find the accused to pose a significant threat they may grant an absolute discharge or conditional discharge. In cases where there is a potential threat to public safety conditions or detention in an appropriate facility, are put in place to mitigate these risks.

The overarching purpose of the Ontario Review Board is to ensure public safety and manage any risk posed by those in their charge. In many high-profile not criminally responsible cases defendants receive a high-risk accused status that leads to long-term detention in mental health hospitals or psychiatric facilities inside detention centers.


Matters involving mental health disorders require a lawyer with experience, understanding and compassion. William Jaksa is an experienced criminal lawyer in Toronto that regularly appears before the Ontario Review Board. He understands that you are not your charges and treats every client with care and dignity. Book a consultation today.

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