section 2

INTRODUCTION AND BRIEF DESCRIPTION

The definition of the term mental disorder as defined in the Criminal Code of Canada

SECTION WORDING

2. In this Act, mental disorder means a disease of the mind;

EXPLANATION

This section defines the term mental disorder as used throughout the criminal code. The definition is very specific and has important connotations elsewhere in the Criminal Code, specifically section 16, as well as section 672.38 which establishes the Review Board for dealing with those found not criminal responsible by reason of mental disorder.

COMMENTARY

The term mental disorder occurs routinely in criminal matters. Many criminal courts have a specialized sub-court to deal with criminal matters where there is an overlap between mental health and the criminal offence. This comes from a recognition that mental health issues contributed to marginalizing an individual and makes them come into contact with the system on a more frequent basis. The term mental disorder takes on specific significance regarding section 16 defence of mental disorder. Notably, the definition included under this section states that a mental disorder must be a "disease of the mind." The wording is important, as it excludes personality disorders. It is not unusual for an accused to present with a personality disorder, such a narcicistic, histrionic, borderline, mixed personality, but also have an underlying disease of the mind such as schizophrenia or bi-polar disorder. The question pursuant to section 16 then becomes whether their behaviour was resultant from the personality disorder, versus the disease of the mind, and to what extent the two issues overlapped. In this respect, the distinction between disease of the mind and personality disorder is examined with a view to determine whether the accused was able to "...appreciate the nature and quality of the act or omission or of knowing that it was wrong"

STRATEGY

The definition of mental disorder is of paramount importance when a section 16 defence is engaged. To mount this defence, professional support from a forensic psychiatrist will be required. Most courts have access to the forensic departments of nearby hospitals, and have arrangements made for in or our custody assessments to be conducted. Despite this, it is not always the best strategy to pursue an assessment through the court, as any report generated is available to both the Crown and defence. For example, if an accused undergoes an assessment and the defence of not criminally responsible by reason of mental disorder is ruled out by the forensic psychiatrist, the Crown will have access to that report if it is conducted through the courts. That said, a court-ordered report will suffice for many situations. Situations where the gravity of the offence are on the lower side, where a report with negative findings are not a real danger, or where facts are not in dispute. In other circumstances, a private assessment does not come with these risks. That said, Legal Aid funding is not always available without strong supporting underlying reasons, and many clients do not have the resources to retain a private expert.

QUESTIONS AND ANSWERS

Q.

Can a person with a mental disorder be convicted of a crime?

A.

Yes. While there is a defence of "not criminally responsible", that defence is not automatically met simply because an offender suffers from a disease of the mind. It is possible to suffer from a disease of the mind and still possess the requisite mens rea to commit an offence. The test is whether the mental disorder caused the accused to be unable to appreciate the nature and quality of the act or omission or of knowing that it was wrong. Thus, an accused who suffers from schizophrenia may suffer from delusions, but still understand that stealing is wrong, or that assaulting a person is wrong. In layman's terms, the delusions need to be of such a nature as to affect the accused's ability to appreciate what they were doing, and why.

Q.

Will the court consider my mental health issues on sentencing?

A.

Yes. When an accused is convicted of an offence, the sentencing judge is required to consider section 718.1 which states that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. An accused with a mental health issues that falls short of the section 16 defence may still be afforded a degree of mitigation on account of their mental health issues.

RELATED CASES

The Supreme Court of Canada considers the concept of toxic psychosis as compared with mental disorder, noting the circuity with the Criminal Code at paragraph 38: "The Criminal Code does not contain a precise definition of the mental disorder concept for the purposes of s. 16 Cr. C. Section 2 Cr. C. simply provides that the term mental disorder means a disease of the mind. Because of the circular nature of this definition, the courts have had to gradually delineate this legal concept over time."
The Supreme Court of Canada deals with the defence of non-insane automatism, and contrasts it with situations in which the accused suffers from a disease of the mind.

RELATED LINKS

CMHA is a community mental health organization in Canada, that assists those suffering from a mental disorder by providing community supports.
One of Canada's premiere mental health hospitals. The hospital contains a forensic assessment unit.

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