Mental illness has never been a very popular topic. Most people don’t understand it, and as a result fear those who suffer from mental illness. These individuals are often cast in a dark light and are seen as dangerous and threatening. In the past the mentally ill were locked up in insane asylums, and although these no longer exist, mentally ill individuals are still ostracized by their communities; whether they pose a threat or not.

When a mentally ill individual is in fact the offender of a crime it creates a new sense of panic. The fear of the mentally ill and what they are capable of escalates causing some to argue for harsh sentencing while others advocate that the individual is ill, and therefore did not understand what he/she was doing at the time. The main argument surrounding mentally ill offenders concerns the safety of the public versus the well-being of the mentally ill.

What Is Mental Illness

Mental illness is represented by alterations in thinking, mood, or behaviour, (or a combination of any of the three) that are associated with distress and impaired functioning for a lengthy period of time. Symptoms range in severity and are affected by the type of illness, the individual, the family, and the environment. Mental illnesses can also occur together, for example an individual may suffer from both depression and an anxiety disorder at the same time.

Mental illness can affect anyone. One gender may be more prone to a certain illness than the other, or a certain illness may be more prevalent in a certain culture, but no one is immune. The onset for the majority of mental illnesses is adolescence or early adulthood, however research has shown that mental illness can affect an individual at any age.

History of Mental Illness and Criminal Law

Mental illness first became a part of criminal law in 1843 when the British House of Lords created the defense of insanity in response to the M’Naughten case. This defense was adopted by Canadian Criminal Law and for many years the Canadian Criminal Code disallowed the conviction of an accused that was found to be insane. At this time it was argued that individuals who suffered from “natural imbecility” or “disease of the mind” were unable to understand the act or omission, and were therefore unable to appreciate that it was wrong. This resulted in acquittal on the account of insanity, which in turn led to detention in strict custody as directed by the Lieutenant Governor of the province.

It wasn’t until 1975 that it was noticed that changes needed to be made in terms of language and improper attitudes and there was a need for more practical solutions to Canada’s social problems. The Law Reform Commission of Canada warned against using the ‘blanket assumption’ that all mentally ill individuals are prone to violence, and argued that there needed to be justifications for restricting the freedom of these individuals.

In 1982 the Department of Justice initiated the Mental Disorder Project as part of a Canada-wide criminal law review. The Mental Disorder Project recognized a number of shortcomings. The report, which was released in September 1985, questioned the compliance with the Canadian Charter of Rights and Freedoms, and voiced concerns about automatic detention with no hearings or proof of danger. Recommendations from this report were incorporated into a draft bill which also proposed changing “insanity” to “mental disorder” and proposed creating a set of “fitness” criteria. This draft-bill was tabled in 1986 and proposals continued through to 1988 until the R. V. Swain case went to the Supreme Court of Canada. The Swain case found that the current legislation did indeed violate the Charter- both sections 7 and 9 were found to be infringed and neither could be saved by section 1.

On September 16, 1991 Bill C-30, “Proposals to Amend the Criminal Law Concerning Mental Disorder”, was tabled. Bill C-30 brought about numerous changes and created a whole new system for managing mentally disordered accused under part XX.1 of the Canadian Criminal Code. Bill C-30 was responsible for:

  • Creating new terminology: “a mental disorder” replaced “natural imbecility” or “disease of the mind”, and “not criminally responsible on account of mental disorder” replaced not guilty on “account of insanity.”
  • Bringing about criteria for determining whether or not an individual is ‘fit’ to stand trial. This included giving the Court, subject to limitation, the power to order involuntary treatment to render an individual fit for trial and in the case of an unfit accused, the Bill ordered that the individual must be reviewed by a court every two years to determine if there was sufficient evidence to bring the individual to a trial.
  • Mandated an annual review of any Board disposition other than absolute discharge.
  • Specified the circumstances under which courts can order a psychiatric assessment.

Mental Illness and the Criminal Code

Section 16(1) of the Canadian Criminal Code explains the defence of mental disorder as “No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the quality and nature of the act or omission or of knowing that it was wrong.”

Not Criminally Responsible on Account of Mental Disorder (NCRMD)

To be found NCRMD the accused must go through a court-ordered psychiatric assessment by a certified expert. It must be shown that the accused was suffering from a mental disorder at the time of the offence and therefore was incapable of appreciating the nature or quality of the act/omission and did not understand that it was wrong.  If the accused is found not criminally responsible, he/she is neither convicted nor acquitted and therefore not sentenced. Instead, the Court Review Board will decide on the most appropriate arrangement which may be 1) absolute discharge 2) discharge with conditions or 3) detention in a hospital based on a set of criteria that have been set out by the Criminal Code.

Fitness to Stand Trial

The criminal justice system of Canada presumes fitness, however if the accused unable to understand the proceedings or communicate with counsel then he/she will be deemed unfit to stand trial. The Canadian Criminal Code defines ‘unfit to stand trial’ as, “unable on account of mental disorder to conduct a defence at any stage of the proceedings before a verdict is rendered or to instruct counsel to do so.”  If an individual is found to be unfit then he/she is dealt with by the Court Review Board until he/she is considered to be fit and tried. An inquiry will be held two years after the initial finding to determine if there is adequate information, this process will continue every two years until the accused is either acquitted or tried. If there is sufficient evidence that treatment will render the accused fit without causing any harm to the accused, the court may order medical treatment. This treatment, however, may not exceed a period of 60 days.

Recent Amendments

In 2005 new amendments were made concerning the mental disorder legislation. These changes were made to better protect the individuals who are found to be either NCRMD or unfit to stand trial, as well as to protect the public. Changes were made in terms of review board powers in terms of ordering assessments, convening or ordering hearings, and issuing warrants. The new amendments also further enhanced the safeguards set for those who are permanently unfit to stand trial. Other changes include allowing victims to read victim impact statements, expanding travel provisions, and providing the police with more options when arresting an individual who has been found unfit to stand trial or NCRMD.

Tim’s Law

In July of 2008, 22 year old Tim McLean was brutally murdered on a Greyhound bus by 40 year old Vincent Li. McLean had fallen asleep at the back of the bus with his headphones on when Li suddenly began stabbing him with a knife. The other passengers fled the bus but Vincent Li continued to attack Tim’s body; decapitating him and allegedly consuming various body parts.

Vincent Li was found not criminally responsible. Both the Crown and the defense agreed that Li was schizophrenic was suffering from a psychotic episode at the time of the attack. Li claimed to hear the voice of God telling him that he needed to kill McLean or else he would be killed himself.

Because Li was found not criminally responsible, he has no criminal record. He will spend time in a secure psychiatric facility where he will receive treatment. His case will be reviewed every year by the mental health review board. As long as Li continues to be a threat to the community, he will remain in the facility. However, if he is deemed ‘safe’ he may be released back into the community. The fact that Li got no record, nor received any jail time, and may at some point be released did not sit well with Tim McLean’s family. They felt that Li should get a life sentence in prison, “a life for a life.”

Tim McLean’s mother, Carol deDelley, is pushing forward with what is known as “Tim’s Law”. Her hope is that the term ‘not criminally responsible” will be changed to “not psychologically accountable” which would mean that the individual was still criminally responsible. As such, the offender would receive a criminal record and would go through treatment in jail rather than at a treatment facility. Tim’s Law is directed at only the most violent and unpredictable mentally ill offenders, and would result in the offender facing incarceration for the rest of his/her life.

The idea of “Tim’s Law” has faced a lot of controversy. Many credit the Canadian judicial system for being humane and recognizing that individuals in psychotic states are unable to recognize right from wrong. Others support the idea of Tim’s Law and eagerly sign the petition. Whether Tim’s Law goes through or not, this case has had a huge impact on the nation and has put the spotlight on mental illness in the health system.

The Negative Effects of Public Fear

Media tends to exaggerate the danger than mentally ill individuals pose to the general public. Over and over again we are shown a supposed ‘link’ between mental illness and violent behaviour. However, it is this stigma and this fear that is the basis for why the majority of mentally ill accused are considered ‘dangerous’.

The factors that cause the general population to become violent are the same as for mentally ill individuals; primarily drugs and alcohol. Of course some mentally ill individuals suffer from additional factors such as psychosis or neurological impairment which, when paired with a stressful environment and little support, can act as a foundation for violent or criminal behaviour. However, other common factors such as low socio-economic status, isolation, and poor self esteem are equally found in both mentally ill and non-mentally ill offenders. Another similarity between the mentally ill accused and the non-mentally ill accused is the pattern of violence. A mentally ill individual is no more likely to approach and harm a stranger in a public setting than a non-mentally ill individual. Both are more likely to confront and harm a friend or family member in a private setting.

It is true that individuals with mental illnesses are 2 to 5 times more likely to be violent (defined as threatening, hitting or fighting) than an individual who does not have a mental illness. However, this statistic needs to be looked at in context, because the statistic is similarly true for men as opposed to women. Mental illness does not equal violence, but there is a relationship between violent behaviour and symptoms which cause the individual to feel threatened (such as hallucinations). It is important to note that individuals with mental disorders may be more likely to be violent, but they are also 2.5 times more likely to be victimized than a non-mentally ill individual.

The intolerance on the part of communities has created even more drawbacks for individuals with mental illness. Jobs are difficult or even impossible to come by and support is limited or non-existent. The criminalization hypothesis states that inadequate housing, a lack of community-based mental health treatment programs and inaccessibility of long-stay inpatient beds have led to the incarceration of a large number of mentally ill people, even for petty crime. Studies regarding mentally ill accused have found that this hypothesis has some validity in today’s Canadian society.


Treatment and conditions for mentally ill offenders has come a long way since mental illness first became a part of criminal law in 1843. However, despite the fact that the Canadian legal system has made huge progress from the days of insane asylums to today’s treatment facilities, there are still a number of issues at hand. As seen in Tim’s law, there is a lot of controversy between the belief that our legal system is fair and humane and the belief that our legal system allows these offenders to get off easy.

In the same way that law has progressed, so has societies level of acceptance of mentally ill individuals. However like the law isn’t perfect, nor is society’s treatment of these individuals. Most people don’t understand what a mentally ill individual experiences and therefore fear the unknown. But if people were properly educated on mental illness then maybe we would see the rates of mentally ill offenders decrease. Society needs to become more accepting of mental illness, we need to implement proper programs and facilities, and make more of an effort to treat the mentally ill as we would anyone else.

Criminal law concerning mentally ill offenders may need some work to find a happy medium between the two beliefs. But for the law to change, society needs to make some changes as well.

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Walton,Dawn. ”Val Villeneuve talks about mental illness and prisons” The Globe and Mail. June 27, 2008.