Not Criminally Responsible

Criminal Law

The legal framework: what section 16 provides

Although the provision may seem simple in its wording, it becomes more demanding when applied: a person is not criminally responsible if, at the time of the act, they were suffering from a mental disorder that rendered them incapable of appreciating the nature of what they were doing, or of knowing that the act was morally wrong.

Key takeaway: Every individual is presumed to be sane. It is the party invoking the mental disorder defence who must prove it on a balance of probabilities — the burden of proof therefore rests on the defence, not the prosecution.

A two-step test

Supreme Court case law — notably the Cooper and Bouchard-Lebrun decisions — has crystallized a clear analytical test that courts apply systematically.

01. The existence of a mental disorder — did the accused, at the precise time of the events, suffer from an illness, disorder, or abnormal state affecting the functioning of their reason? States voluntarily induced by alcohol or drugs are expressly excluded. Voluntary intoxication is in fact a separate defence, which we will address in a future post.

02. Incapacity resulting from the disorder — did the disorder render the accused incapable of judging the nature and quality of the act, or of perceiving its moral wrongfulness? The two branches are alternative: only one need be established.

It is important to note that the first branch — the qualification of the mental disorder — is a question of law decided by the judge. The second — the actual impact of the disorder on the accused’s abilities — is a matter for the jury, or for the judge alone sitting without a jury.

A clinical diagnosis alone is not enough

A common confusion is to equate any psychiatric diagnosis with an automatically exonerating condition. That is not what the law provides. Legal scholarship makes it clear: a diagnosis made under DSM-5 criteria — whether schizophrenia, bipolar disorder, a neurocognitive disorder, or any other clinically recognized condition — does not, by itself, satisfy the legal requirements of section 16.

What matters to the court is the concrete effect of the disorder on the accused’s decision-making capacity at the time of the events. A psychiatric expert must therefore go through two stages: first establish a diagnosis, then assess to what extent that diagnosis had, at the precise moment of the offence, deprived the accused of their capacity for discernment.

The Turcotte case: when mental disorder and intoxication overlap

R. v. Turcotte, 2013 QCCA 1916

Cardiologist Guy Turcotte was charged with the murder of his two children amid a turbulent marital separation. The accused, Guy Turcotte, explained his crime through a combination of two distinct factors: a reactive depression (described as an adjustment disorder), and voluntary intoxication with methanol ingested in a suicide attempt, Turcotte having drunk windshield washer fluid before the killings.

This case became a landmark reference because of a delicate question that courts had previously rarely had to resolve with such clarity: what happens when a mental disorder and voluntary intoxication coexist at the same time?

As explained above, these are two distinct defences analyzed under different criteria.

The Court of Appeal ruled as follows: if the psychotic condition results exclusively from voluntary intoxication, the mental disorder defence is unavailable. But when a disease of the mind pre-exists or coexists with intoxication, the jury must work to identify the true source of the incapacity. This is precisely what the trial judge had failed to explain clearly to the jury, who had initially determined that section 16 of the Criminal Code applied.

The Québec Court of Appeal then overturned the not criminally responsible verdict and ordered a new trial, finding that the jury instructions had not sufficiently distinguished the respective effects of the mental disorder and the intoxication. This decision illustrates just how rigorous the analysis must be: it is not simply a matter of noting a mental disturbance in a general sense without distinguishing its sources, but rather identifying its precise cause and impact.

Consequences of a not criminally responsible verdict

Unlike an acquittal, a not criminally responsible verdict entails neither conviction nor immediate release. The person is subject to the special regime set out in Part XX.1 of the Criminal Code, under the authority of the Review Board.

Three outcomes are possible, ordered by the principle of the least severe and least restrictive decision compatible with public safety:

• Absolute discharge;
• Conditional discharge;
• Detention in a psychiatric hospital.

Public safety is the predominant factor in this assessment. The Review Board evaluates the accused’s mental state, treatment plan, prospects for reintegration, and risk of reoffending. It relies on psychiatric assessments conducted on the offender and follows them in the vast majority of cases.

It should also be noted that a not criminally responsible verdict may be taken into account in other legal proceedings or in parole applications related to other offences. And following the most recent legislative reform — in which the Turcotte case played an influential role — a new « high-risk accused » category was introduced, applying significantly stricter restrictions to offenders so categorized.

Your situation deserves a personalized analysis

The mental disorder defence is one of the most technical and sensitive in criminal law. Every case is unique, and the stakes — for the accused as well as for their family — are considerable. Me Alexandre Lacroix offers a free information session to help you gain clarity.

This blog post is provided for general informational purposes only and does not constitute legal advice. Every situation is unique — consult a legal professional for advice tailored to your case.