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'Not Criminally Responsible' defence

Region: Ontario Answer # 1874

Section 16 of the Criminal Code codifies the common law defence of not criminally responsible, or ‘NCR’, formerly known as the ‘insanity defence’. This defence usually arises when an accused person who is mentally ill, is so unwell, usually psychotic, that he or she does not understand either:

  • the nature and quality of the act that they have committed, or
  • that the act was wrong.

The accused must establish this defence on a balance of probabilities (which means, more likely than not to have occurred). If you or someone you care about has been charged with a crime, it is important to hire an experienced criminal defence lawyer as soon as possible.

If found NCR

If found not criminally responsible, the accused person will then come under the jurisdiction of the Ontario Review Board (“ORB”). The ORB is an administrative tribunal that holds an initial hearing shortly after the accused is found NCR, and then once every year after that. The Board has expertise in the law and psychiatry in relation to mentally ill accused persons, and is comprised at each hearing of two lawyers, a psychiatrist, a psychologist, and a member of the public. At the initial and annual hearings the Board determines, based on an assessment of the accused’s risk to the public, whether he or she should be in the hospital, in the community, or absolutely discharged.

Hiring a criminal defence lawyer experienced with mental health issues

It is imperative that an accused (or his/her family) who wishes to consider raising the NCR defence hire a criminal defence lawyer with experience representing mentally ill accused persons. As well, the lawyer should have experience retaining forensic psychiatrists who do assessments for criminal responsibility. Additionally, the lawyer will need to be experienced in cross-examining psychiatrists, as the Crown will most assuredly wish to obtain an assessment and report of their own. A lawyer experienced in this area will also be able to discuss with the client, and his or her family, the pros and cons of raising the defence of NCR. Depending on the seriousness of the charges, there is a possibility of spending more time under the Board’s jurisdiction than if the accused pleads guilty to the charge and is sentenced to prison.

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 criminal offence, and need to hire a criminal defence lawyer, contact our preferred experts: The Criminal Law Team .


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