section 2


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


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


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.


Section 2 of the Criminal Code of Canada defines mental disorder" as a disease of the mind. This section is the foundation for understanding and defining mental illness within Canada's legal system. It may seem straightforward, but the interpretation and application of this definition can have significant consequences for individuals with mental health issues, their rights, and their access to justice. Mental illness is a complex and varied aspect of health. There are numerous types of mental disorders, ranging from anxiety and depression to more severe conditions like schizophrenia and bipolar disorder. The causes of these illnesses can be biological, psychological, or environmental. Despite this range of illnesses, the Criminal Code defines all of them as a "disease of the mind." This definition has significant legal implications. For example, when a person is accused of committing a crime, they may argue that their mental disorder means that they are not criminally responsible for the act. Section 16 of the Criminal Code outlines the circumstances when individuals with a mental disorder are not criminally responsible, which includes when the person was incapable of knowing that their actions were wrong at the time of the offence. In such circumstances, the court may order the person to be placed in a mental health facility rather than a prison. However, the definition of "disease of the mind" has received some criticism for being too vague and overly broad, leading to inconsistent application. For example, conditions such as alcoholism and drug addiction are generally not considered a mental disorder under this definition, even though they have a significant impact on mental health and behavior. This inconsistency in the definition of "disease of the mind" can lead to unfair treatment of individuals with mental health issues. Additionally, mental health diagnoses and treatments are constantly evolving and changing. As new research becomes available, mental health professionals may adjust how they diagnose and treat illnesses. This change can make it difficult to evaluate past cases, where the current understanding of mental health may differ from what was known at the time of the trial. The Criminal Code's definition of mental illness also raises questions about whether this definition is the best way to approach mental health in the legal system. Rather than treating all mental disorders as a disease of the mind," some critics argue that the legal system should examine individuals' capacity for criminal intent on a case-by-case basis, taking into account the individual's specific mental health diagnosis and behaviour at the time of the offence. In conclusion, Section 2 of the Criminal Code of Canada defines mental disorder as a disease of the mind, which has significant legal implications for individuals with mental health issues. While this definition has been useful in providing a framework for understanding mental illness within the legal system, it is not without its criticisms. To support individuals with mental health issues fairly and justly, it is necessary to continue examining and improving how we approach mental health in the legal system.


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.



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


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.


Will the court consider my mental health issues on sentencing?


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.


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.


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.