Out of all of the strategies used by criminal defence lawyers, Canadians tend to be most familiar with the insanity defence. This is likely due mainly to its use as a trope in TV courtroom dramas and high-profile cases that generate significant media coverage. Consider, most recently, the trial of Alek Minassian, who was tried in 2021 on 10 counts of first-degree murder and 16 counts of attempted murder. Minassian, who purposely targeted pedestrians by ramming them with a rented van on Toronto’s Yonge Street, pleaded “not criminally responsible” based on an “autistic way of thinking” that mirrored psychosis. While this marked the first time a Canadian defendant has tried to use autism in the context of an insanity defence, the judge rejected it and found Minassian criminally responsible and subsequently guilty on all counts.
Such high-profile cases may help familiarize the public with the insanity defence in Canada, but Statistics Canada data suggests that less than 1% of criminal defendants invoke the “not criminally responsible” insanity defence, and only about a quarter of these prove successful in court. While the Greater Toronto Area’s Mass Tsang criminal defence lawyers rarely find cause to use the insanity defence, it is an option for consideration with clients who have obvious mental health issues. We have examined other noteworthy defence strategies such as “abandonment” “consent” and “entrapment” in recent blogs and will now turn our attention to “insanity.”
Exempting criminal defendants from punishment due to their compromised mental state has been a component of criminal law since at least ancient Babylonian times of the 1700s BC when such provisions were included in the legal Code of Hammurabi. Other ancient cultures also included this defence in their laws, including the Roman Empire, which had a “non-compos mentis” provision of law that dictated the need for “a mastery of mind” for a finding of guilt.
In more recent times, the Canadian government and its courts established the insanity defence based on the 1840s-era M’Naghten rule, which arose as a component of the United Kingdom’s common law as jury instructions. The basic legal principals of the M’Naghten rule are that while every man is presumed to be sane, a defence can be established on the grounds of insanity if it can be clearly proved that “the accused was labouring under such a defect of reason, from disease of the mind, as to not know the nature and quality of the act he was going; of if he did know it, that he did not know he was doing what was wrong.”
Canadian legislators first incorporated the insanity defence in the Criminal Code in 1892, based mainly on the language used for the M’Naghten rule. However, anyone found unfit to stand trial or acquitted because of insanity was to be held in “strict custody at the pleasure of” the provincial lieutenant governor. This essentially resulted in a prolonged, if not lifetime, incarceration in a mental institution.
The original legislation has since been revised several times. Section 16 of the Criminal Code — Defence of Mental Disorder — now codifies the insanity defence as such:
Section 2 — Interpretation — of the Criminal Code also plays a role in the insanity defense by defining “unfit to stand trial” on the basis of a mental disorder. Under the language a defendant may be deemed unfit if unable to conduct a defence “and, in particular, unable on account of a mental disorder to:
Those found “not criminally responsible” or “unfit to stand trial” based on either of the above sections of the Criminal Code are then subject to Part XX.1 — Mental Disorder — provisions of the Code. These provisions render the defendant under the control of a provincial review board (which also makes “unfit to stand trial” determinations for the court). The review board is responsible for assessing whether the accused is a “significant threat to the safety of the public” and, based on that finding, determine the “least onerous and least restrictive” restrictions that should be placed on the accused to protect the public while providing mental health care for the accused. The maximum restriction is mandatory hospitalization in a mental institution, with the duration dependent upon periodic (one- to two-year) reviews by the board.
When a defendant seeks an unfit to stand trial ruling, the judge typically orders a mental health assessment and then holds a fitness hearing on the assessment results. Based on this hearing, the judge can either rule the defendant fit for trial or order mental health treatment with the goal of making the defendant fit for trial. If this treatment fails to make the defendant fit for trial, the judge sends the case to the Ontario Review Board (ORB), which will often conduct additional assessments before making its own determination on whether the defendant is fit, unfit, or permanently unfit. If the ORB deems a defendant fit, the trial can resume. If the ORB determines unfitness, it can order more treatment
If it deems the defendant “permanently” unfit,” it can recommend a judicial stay of proceedings. If granted, the court must hold a hearing every two years, should the Crown want to keep the case active. In most cases, a finding of permanent unfitness ultimately leads to dismissed charges.
If the defendant has a history of mental disorders or has displayed behaviour to police and the court that indicates a disorder, the Crown will often support motions for evaluation, treatment through hospitalization, or a Review Board assessment. Sometimes, the Crown itself makes the motion to declare a defendant unfit for trial. The defendant has the right to challenge decisions made by either the judge or ORB and any orders for treatment.
Defendants who plead not criminally responsible (NCR) because of a mental disorder have the burden of proving their claim in court. As an affirmative defence, the defendant must first prove that they had a mental disorder at the time of the offence. The accused then must prove that the condition rendered them incapable of understanding what they were doing in the commission of the crime or knowing that it was legally or morally wrong.
This defence typically relies on testimony from medical and psychiatric professionals to establish the defendant’s mental disorder and to what extent this could possibly hinder their understanding of the criminal act. The defence might rely on other evidence—witness testimony, specific actions taken by the accused, etc.—to further prove that they did not understand what they were doing or that it was wrong. The Crown generally rebuts with their own expert witnesses and any evidence that can decrease the credibility of the defence’s efforts.
Unless the defendant has a patently obvious mental disorder, getting a successful ruling with an insanity defence is especially difficult. And what counts as successful may be mitigated by whatever actions the ORB takes. While the ORB is tasked with balancing public safety with the mental health welfare of the defendant, it has the power to order those placed under its care be detained for years or even life in a mental hospital.
While the lawyers of Mass Tsang rarely turn to the insanity defence when developing strategies for their clients, it will certainly be considered if a client’s mental health seems to have played a role in the crime. Mass Tsang lawyers thoroughly assess each criminal case’s elements to devise the most effective defence for their Greater Toronto Area clients. If you or a loved one is facing criminal charges contact the expert lawyers at Mass Tsang
