Mental health and criminal defence in BC concerns can intersect with the criminal justice system in many ways. In British Columbia, courts do not treat mental illness as a “free pass,” but they do have legal tools to assess how a mental condition may affect responsibility, trial fairness, and the most appropriate outcome in a case.
If you or someone you care about is facing charges and mental health is part of the picture, it helps to understand the key legal pathways, including when an assessment may be ordered and how professional reports can be used in court.
This article explains how mental health is considered in Canadian criminal law, with a focus on BC practice, and how a defence lawyer can help protect your rights at each stage.
Where Mental Health Can Affect a Criminal Case
Mental health can matter at more than one point in the court process. The key is that each stage has a different legal test and calls for different types of evidence.
- Bail and release planning: Early in a case, mental health history can influence how release is structured. Stability, treatment supports, housing, and a realistic plan for follow-through may affect the conditions a judge considers appropriate.
- Fitness to stand trial: Before a trial can move forward, the accused must be able to understand what is happening and participate meaningfully with counsel. If there is a genuine concern about this, the court may need to assess fitness.
- Criminal responsibility (NCRMD): In a narrower set of cases, mental illness may raise an issue about criminal responsibility at the time of the alleged offence. This is where the NCRMD framework may apply.
- Sentencing: Even when fitness and NCRMD are not in play, mental health can still be relevant after guilt is found. It may help explain circumstances, support a treatment-based plan, and influence sentencing options or conditions.
Fitness to Stand Trial: A Fair Process Requires Participation
A criminal prosecution must be fair. One of the most important protections is the rule that an accused must be fit to stand trial.
In practical terms, fitness is about whether a person can:
- understand the nature of the court proceedings, and
- communicate and work with their lawyer in a meaningful way.
If fitness is in question, the Criminal Code allows the court to order an assessment where it is necessary to determine whether the person is unfit to stand trial.
What this can look like in criminal defence in BC
In British Columbia, court-ordered mental health assessments are often connected to forensic psychiatric services. If someone is found unfit, the case does not simply “end.” Instead, it moves into a specialized legal process with ongoing oversight.
Fitness issues can sometimes be temporary, particularly when treatment and stabilization are available. In other situations, they require longer-term planning and careful legal advocacy to ensure the process remains fair and proportionate.
NCRMD: What the Mental Disorder Defence Is (and Is Not)
People sometimes use the word “insanity,” but Canadian law does not use that term. The legal concept is Not Criminally Responsible on Account of Mental Disorder (NCRMD)..
Under section 16 of the Criminal Code, a person may be found NCRMD if, at the time of the offence, they were suffering from a mental disorder that made them incapable of:
- appreciating the nature and quality of the act, or
- knowing that it was wrong.
Important Points About NCRMD
- A diagnosis alone is not enough. The court focuses on how the mental disorder affected the specific legal capacities in section 16.
- NCRMD is not “acquittal and freedom.” A person found NCRMD usually enters a different legal regime (Part XX.1 of the Criminal Code), which balances treatment and public safety.
- These cases are evidence-heavy. NCRMD findings typically require expert evidence and a careful strategy.
Because early decisions can affect what options remain later, getting legal advice at the outset matters.
Psychiatric Assessments and Psychological Reports: How They Are Used
When mental health becomes legally relevant, courts often rely on professional assessments. Depending on the issue and the questions the court needs answered, this may involve:
- a psychiatric assessment, and/or
- a psychological report.
When can the court order an assessment?
The Criminal Code authorizes a court to order an assessment when there are reasonable grounds to believe it is necessary to determine issues like fitness or whether section 16 may apply.
In plain language, these assessments are not ordered just because mental health is mentioned. They are ordered when the legal question before the court requires expert input.
What an assessment may cover
Depending on the legal issue, a report may address:
- current mental state and diagnosis (if any)
- ability to understand the process and work with counsel (fitness)
- mental state at the time of the alleged offence (criminal responsibility)
- risk factors and available supports
- treatment history, medication, and stability planning
A defence lawyer’s role is to ensure the right questions are asked, the process is fair, and the resulting evidence is used responsibly and strategically.
What Happens After an Unfit or NCRMD Finding in BC
If a person is found unfit or NCRMD, the case typically moves into a specialized system. In British Columbia, the BC Review Board plays a central role in overseeing what happens next.
The “least onerous and least restrictive” principle
Canadian law requires that outcomes for NCRMD accused are not more restrictive than necessary, while still protecting public safety. In practice, Review Board dispositions may include:
- absolute discharge
- conditional discharge
- detention in hospital
The right outcome depends on risk, mental health needs, and the supports available.
Mental Health at Sentencing: Often Where Practical Solutions Are Built
Not every case involves fitness concerns or NCRMD. Even where a person is found guilty, mental health can still be highly relevant at sentencing.
When presented properly, treatment documentation or a well-prepared psychological report can help the court understand:
- how symptoms may have contributed to the circumstances
- what supports exist now
- what a realistic treatment plan looks like
- what conditions can reduce risk and support stability
Sentencing is often where the court can build structure, accountability, and support in a way that reduces future harm.
Why Early Legal Advice Matters
Mental health issues can affect evidence, police interactions, bail conditions, and decisions about whether assessments should be requested or challenged. These are high-stakes choices. A criminal defence lawyer can help you:
- assess whether fitness or NCRMD is realistically in play
- navigate assessment orders and timelines
- review expert opinions critically and respond strategically
- build a release or sentencing plan that reflects real supports and treatment options
Speak With Michael Shapray About a Criminal Matter
If you are dealing with criminal charges in British Columbia and mental health is part of the situation, you do not have to navigate it alone. The intersection of mental health criminal law, the mental disorder defence, and assessment evidence can be complex, and getting it right can meaningfully affect the outcome.
Contact Michael Shapray to discuss your situation, understand your options, and take the next step with a clear defence strategy.