No, People Aren’t Getting off Easy: The Defence of Not-Criminally Responsible (NCR) in Canada

Whenever a high-profile case results in a verdict of not criminally responsible on account of mental disorder (NCR), outrage abounds. “The accused got off easy!” “Our justice system is broken!” Throw away the key!” 

NCR will re-enter the spotlight when Superior Court of Ontario Justice Anne Molloy releases her ruling in the Alek Minassian case on March 3. Mr. Minassian admitted to carrying out the 2018 Toronto van attack but pled NCR.

No matter the outcome, people will condemn the existence of an NCR defence. Before doing that, I’d encourage you to consider the facts.

What is the defence of NCR (not criminally responsible on account of mental disorder)?

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NCR, previously known as the insanity defence, requires proving one of two things:

  1. Because of a mental disorder, the individual is incapable of appreciating what they’re doing.

-or-

  1. Because of a mental disorder, the individual is incapable of understanding what they’re doing is wrong.

The first option requires evidence that the accused could not foresee the physical consequences of their act. For example, as a result of a mental disorder, an accused believed they were slicing an orange but were, in fact, stabbing another person.

The second option is not only about the intellectual capacity to know right from wrong but also the ability to apply that moral reasoning rationally when committing the offence. Not understanding an act is wrong isn’t enough. The accused must be incapable of that understanding. Case in point, a delusion causes an accused to believe that their spouse is an agent of the devil and is going to kill the couple’s children. The accused murders their spouse to protect the children.

In both cases, a court would conclude that the accused committed the act in question but was not morally responsible for the offence.

What is the difference between NCR and unfit to stand trial?

NCR concerns one’s mental state during the offence.

The relevant mental state for unfit to stand trial is at the time of the court proceedings.

“Unfit to stand trial” means that due to a mental disorder, an accused is unable to understand the proceedings or meaningfully communicate with their lawyer.

Consider the following example.

D is charged with assault. Shortly after committing the assault, D has a psychotic break. D believes they are the Prime Minister of Canada and that they must fight against an alien invasion. Here, D may have been responsible for the crime. But their subsequent mental state prevents them from participating in their defence.

Is NCR an acquittal?

NCR is neither an acquittal nor a finding of guilt. It is a determination that a criminal act occurred but that the accused was not criminally responsible for its commission.

Can’t anyone say, “I have a mental illness”, and go free?

In a 2014 study, Statistics Canada found that NCR verdicts comprise less than one percent of adult criminal court cases processed annually 

Proving NCR is exceptionally difficult and rare. The onus is on the accused to prove that the mental disorder prevented them from understanding what they were doing or understanding that it was wrong. Proof requires expert testimony, generally from a psychiatrist. The Crown may retain their own expert to refute the accused’s evidence.

Feigning a mental illness to obtain an NCR verdict would be a monumental challenge. The accused would have to fool both a psychiatrist trained to detect malingering and a judge or jury. Even if a person convinces a psychiatrist that they have a severe mental disorder, that in itself would not be enough for an NCR verdict. The accused must prove that their mental disorder satisfied one of the two bases for NCR.

What happens after an NCR verdict?

Upon an NCR finding, the accused is almost always detained in a psychiatric facility and subject to the jurisdiction of a review board. These boards are specialized tribunals that sit in panels with at least one experienced lawyer and a psychiatrist.

Within 90 days of the court’s decision and then annually, a review board holds a hearing with the accused (ordinarily represented by a lawyer), the Crown, and counsel for the hospital. The board must decide how to protect the public while infringing on the accused’s liberty as little as possible. This analysis occurs in two stages:

  • Is the person a significant threat to public safety? If the answer is no, they must be discharged without conditions and are no longer under the board’s jurisdiction. The inquiry ends there.
  • If a person is a significant threat, the review board decides whether they should continue to be detained in a psychiatric hospital or released into the community subject to conditions.

After deciding where the accused should reside, the review board imposes conditions, such as taking medication, abstinence from drugs and alcohol, passes to leave the hospital, and reporting obligations if living in the community.

Is NCR a get-out-of-jail-free card?

A popular misconception is that an NCR verdict is “getting away with murder”. This is wrong for two reasons.

First, an NCR accused may spend years in a secure psychiatric detention facility that looks a lot like a jail. Their freedoms, including outdoor access, may be very limited.

Second, an individual may be under a review board’s jurisdiction indefinitely, regardless of the seriousness of the crime they commit. Unlike a jail sentence, detention in a psychiatric facility does not come with a maximum term. A crime that would otherwise carry a brief jail sentence could lead to years or a lifetime in psychiatric detention.

It is far more common for an NCR accused who committed a relatively minor offence to spend decades in detention than for an NCR accused who committed a serious violent crime to be released within a few years.

Are we letting dangerous people out on the streets?

According to a study published in the 2015 edition of the Canadian Journal of Psychiatry, NCR accused have a lower re-offence rate than offenders in correctional custody.

Less than one percent of NCR accused commit a severe violent crime (homicide, attempted murder, or sexual assault) when released into the community.

These statistics are unsurprising given how risk-averse review boards are. The last thing they want is for a person they released to commit a severe violent crime.

In most cases, a review board does not quickly release an NCR accused. The process typically involves observing how an accused responds to gradual reductions in restrictions.

Many NCR accused never experience improvements in their psychiatric condition, and they spend the rest of their lives in detention.