Introduction:
The intersection of mental health and the criminal law is one of the most complex and sensitive areas of the justice system. When someone facing criminal charges is also struggling with mental illness, the traditional approach to prosecution and
sentencing may not serve the interests of justice or public safety.
At Shim Law, we believe that access to justice includes compassion, understanding, and individualized solutions. In this article, we explain what options exist for people with mental health concerns who’ve been charged with a criminal offence in Alberta.
Table of Contents
Mental Illness Is Not a Crime:
Having a mental health condition, whether it’s depression, schizophrenia, PTSD, bipolar disorder, or others, is not a crime. But sometimes, the symptoms such as disorganized thinking, paranoia, impulsivity, or emotional dysregulation can lead to
actions that can result in criminal charges.
In such cases, the goal of the justice system should be a proper assessment of the person’s condition, responsibility, and needs.
Fitness to Stand Trial:
Before a trial can proceed, a person must be “fit to stand trial.” This means they must:
- Understand the nature and seriousness of the charges.
- Be able to competently instruct and advise counsel.
- Be able to participate meaningfully in their defence.
If someone appears to be unfit due to a mental disorder, the court can order a psychiatric assessment under the Criminal Code. If found unfit, the process is suspended until the person regains fitness, often after treatments and support.
Not Criminally Responsible (NCR):
If a person was suffering from a mental disorder at the time of the offence that made them incapable of understanding the true nature or wrongfulness of their actions, they may be found Not Criminally Responsible on account of mental
disorder (NCR).
- An NCR finding is not an acquittal, but a recognition that the person is not legally responsible.
- The case is referred to the Alberta Criminal Code Review Board, which determines the appropriate treatments and supervision.
- The goal is public safety through a therapeutic approach, not necessarily institutionalization.
Mental Health Diversion (MHD):
For less serious offences, Alberta can offer mental health diversion programs, where eligible individuals are diverted out of the criminal court process and towards treatment and rehabilitation.
To qualify, individuals must:
- Accept responsibility for their actions.
- Be willing to engage in treatment and counselling.
- Have their case screened and approved by the Crown prosecutor.
If successful, charges may be withdrawn upon completion of an agreed-upon plan.
Sentencing with Mental Health Considerations:
Even if a person is found guilty, or pleads guilty, mental health can still be a factor during sentencing. Courts in Alberta may:
- Consider any untreated mental illness as a mitigating factor.
- Recommend probation with treatment and counselling instead of jail.
The Supreme Court of Canada has recognized that sentencing must be individualized, particularly when mental health or other circumstantial factors affect culpability.
Avoiding Common Pitfalls:
Common mistakes include:
- Trying to explain to the police without first receiving legal advice.
- Refusing assessments and treatment options due to fear or stigma.
- Assuming the court will agree without documentation or expert reports.
Having a lawyer who understands both the legal and medical dimensions is essential.
Final Thoughts:
People with mental illness deserve dignity. The justice system balances accountability with compassion, providing alternatives to incarceration when mental health is at the root of the issue.
At Shim Law, our criminal defence team works with mental health professionals, clients, and families to ensure clients receive treatment and appropriate support.
Whether you’re facing charges yourself or helping a loved one, we’re here to guide you through the process with knowledge, respect, and care.
Need legal advice relating to mental health? Contact our criminal law team:
Address: #720 – 634 6th Avenue SW, Calgary, Alberta, T2P 0S4
Phone: (825) 521-9666
Email: criminal@shimlaw.ca
Website: www.criminallawyeryyc.ca
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