When a person has been charged with a crime in Canada, there are generally three outcomes that may result from a trial: the accused is found to be guilty, the accused is found to be not guilty, or the accused is found to be guilty but not criminally responsible for their actions on account of mental disorder. This last category, in which a person, although found guilty of the criminal act, is also found to be not criminally responsible as a result of mental disorder, is commonly referred to as a finding of “not criminally responsible”, or “NCR”. In this case, the Crown may seek to have the offender designated as a “high-risk accused.”

How is a Designation of Not-Criminally Responsible Asserted?

Section 16(1) of the Criminal Code of Canada provides that “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 nature and quality of the act or omission or of knowing that it was wrong”. Once a person has been convicted of a crime, either they or the Crown may bring an application seeking to have them declared “not criminally responsible” in accordance with section 16 of the Criminal Code. The party that brings the application bears the burden of proving, on a balance of probabilities (in other words, more likely than not), that the “accused was suffering from a mental disorder so as to be exempt from criminal responsibility”.

Once the court has determined that a person is not criminally responsible for the crime of which they were convicted, then the Crown can seek a designation of “high-risk accused” to be applied to the offender.

What is a High-Risk Accused Designation?

The high-risk accused amendments to the Criminal Code were introduced in 2014, and were developed with the intention to protect the public from those offenders who had been found not criminally responsible for their actions, but who were considered to be so dangerous and to present such a high-risk to the public as to necessitate further restraint on their liberty. Designation of a person as a high-risk accused results in further restriction to liberty because any person who is designated as such is prevented from leaving a mental health treatment facility unaccompanied, until a new order is issued in which the designation of high-risk accused is rescinded.

What is a High-Risk Accused Application?

An application for designation of an offender as a high-risk accused may be asserted in accordance with section 672.64 of the Criminal Code, which provides, in part, as follows:

“672.64 (1) On application made by the prosecutor before any disposition to discharge an accused absolutely, the court may, at the conclusion of a hearing, find the accused to be a high-risk accused if the accused has been found not criminally responsible on account of mental disorder for a serious personal injury offence, as defined in subsection 672.81(1.3), the accused was 18 years of age or more at the time of the commission of the offence and

(a) the court is satisfied that there is a substantial likelihood that the accused will use violence that could endanger the life or safety of another person; or

(b) the court is of the opinion that the acts that constitute the offence were of such a brutal nature as to indicate a risk of grave physical or psychological harm to another person.”

The factors to be considered in deciding whether to grant such an application are dictated by section 672.64(2) of the Criminal Code, and include:

• the nature and circumstances of the offence of which the offender was convicted;
• any pattern of behaviour of which the offence for which conviction was achieved formed a part;
• the current mental condition of the offender;
• the past and expected future course of treatment of the offender, including his/her willingness to comply with treatment measures; and
• the opinions of medical professionals who have examined the offender.

What Happens if a High-Risk Accused Application is Successful?

If consideration of the above-noted criteria leads the court to conclude that the offender meets the threshold for designation as a high-risk accused, then a commensurate order reflecting the same finding is issued by the court. Further, in accordance with section 672.64(3) of the Criminal Code, the court is bound to order a disposition in accordance with section 672.54(c). This means that the court will order that the offender be detained in a mental health hospital. The offender will not be permitted to leave that facility unless they are required to do so in order to obtain medical treatment, in which case the offender must be accompanied at all times while off-site by a person who is authorized the hospital. A structured plan must also be put in place to address any risk to the public of the offender’s release.

Can the Designation of High-Risk Accused Ever be Removed or Amended?

The designation of an offender as high-risk is subject to annual review by the Review Board, in accordance with section 672.81 of the Criminal Code. If, upon review, the Review Board is convinced that no substantial likelihood exists that the high-risk offender will use violence that could endanger the safety or life of another person, the Review board will refer the designation of “high-risk accused” to the Superior Court of Justice for review.

If, over time and in light of treatment provided to the offender, it becomes clear that the offender’s “high-risk” to reoffend has been reduced, then sections 672.54(a), (b) and (c) provide a path to having that designation rescinded entirely.

How Common are High-Risk Accused Applications?

High-risk accused applications are generally rare in Ontario and have only been sought in a handful of cases over the years. Success will only be achieved in those cases where all of the criteria can be satisfied. One example of such a case is provided by R v Hadfield, in which the offender had been found guilty of robbery and manslaughter. The victim’s death was found to have been unprovoked, as the offender did not know the victim yet had attacked him on the basis of delusions from which he suffered. The offender, who suffered from treatment-resistant schizophrenia, had a record of 17 criminal convictions for various offences between 2014 and 2018, when the victim was killed. Eleven of those offences involved violence. The offender’s diagnosis and prognosis were quite severe, as the doctor who evaluated him for purposes of this application had assessed him as “significantly psychotic” and “actively unwell”. The offender’s illness was also described as “one of the most severe cases” the doctor had ever dealt with. Taking these factors into account, and given the offender’s historical failure to voluntarily comply with mental treatment options, the court concluded that he satisfied all appropriate criteria and therefore issued an order designating him as a high-risk accused. The offender’s subsequent appeal of that decision was also dismissed.

Contact the Skilled Criminal Defence Lawyers at Barrison Law for Superior Representation in Criminal Law Matters

Whether you are facing charges relating to assault, robbery, manslaughter, or weapons, the experienced criminal defence lawyers at Barrison Law work with and represent clients throughout the Durham Region. From our office in Oshawa, we provide a 24-hour phone service and a variety of payment plans available for our clients. To speak with one of our lawyers regarding your criminal matter, contact us online or by phone at 905-404-1947 for a confidential consultation and learn how we can assist you.