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Mental health or addiction issues and fitness to stand trial

Region: Ontario Answer # 1872

Psychiatric assessment

When a mentally ill person is accused of a crime, but is so unwell that he or she may not understand the nature of the criminal proceedings, or is not capable of instructing their lawyer, the defence lawyer or the Court will usually raise the defence of mental fitness to stand trial.

An assessment will be ordered and a forensic psychiatrist will ask the accused questions to determine the accused’s mental fitness to stand trial. For example, the accused will be asked:

  • if he/she knows that he/she is being charged,
  • if he/she understands what the charge is,
  • what pleas are available to him/her,
  • what the roles are of the crown attorney, defence lawyer, and judge,
  • what it means to swear to an oath, and
  • the possible consequences of lying under oath.

At a very early stage of the process, a criminal defence lawyer experienced in mental health and addiction issues has the ability to understand whether the client has a mental illness or addiction, and if so, how this has played a role in the commission of the offence.

If found to be unfit to stand trial temporarily

The psychiatrist will then form an opinion on whether the accused is fit or unfit to stand trial. If found unfit to stand trial, the accused will then come under the jurisdiction of the Ontario Review Board (ORB). The ORB is an administrative tribunal with expertise in mental health and criminal law issues. The ORB tribunal will determine whether the accused is to remain in hospital or live in the community until such time as the accused becomes fit to stand trial. Once found unfit to stand trial, the accused’s treating psychiatrist will make efforts to convince the accused, if he/she will not consent, to take medication that will hopefully allow him/her to become fit to stand trial, and continue on with the charges in the ordinary course. In addition, the judge who finds an accused unfit to stand trial may, upon application, order the accused to take treatment (usually with anti-psychotic drugs) that will assist in the accused becoming fit to stand trial.

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If found to be unfit to stand trial permanently

Some accused persons with intellectual disabilities, dementia, Alzheimer’s disease, brain damage, or untreatable forms of schizophrenia may be permanently unfit to stand trial, and may never see their criminal charges to the end. An accused who is found unfit to stand trial is not entitled to an absolute discharge. They will remain under the jurisdiction of the ORB until such time as either the Crown can no longer establish a prima facie case (a much lower standard of proof than proof beyond a reasonable doubt), or the accused no longer remains a significant threat to the safety of the public. These issues are dealt with by the Court that made the original finding that the accused was unfit to stand trial.

Criminal defence lawyers with experience representing clients with mental health issues will have an understanding of the mental health and legal issues that may arise both during the course of fitness proceedings, and after. For example, a permanently unfit accused may no longer pose a significant threat to the safety of the public if his/her mental disorder can be carefully managed in a supervised group home setting. An experienced lawyer can work with the accused’s family and/or the hospital to speed up the client’s transition into the community. With this type of solution the public is protected and the accused will enjoy a better quality of life.

To erase your criminal record, call toll-free 1-877-219-1644 or learn more at Federal Pardon Waiver Services. It’s easier than you think.

If you have been charged with a crime, and need to hire a criminal defence lawyer, contact our preferred experts, The Criminal Law Team .


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