Today, the number of people with a mental disorder is four times higher in prisons than in the general population. Why?

• They are poor and commit a larger number of crimes of survival
• There are more people with mental disorders in the general population, and the public tolerates them less. If they see someone talking to him or herself, shouting or exhibiting strange behaviour, many people will decide to call the police
• For the same minor offence, people with mental disorders are more likely to get arrested or be charged than people without a mental disorder
• People with a severe mental disorder are more likely to have problems with alcohol or drugs, and addiction is a major risk factor for crime and violence in the overall population

Who is likely to be involved in the legal system?

The profile of people with mental health problems in the legal system is multiple and varied. They include:

• A majority of people who commit minor offences and who would not have been arrested if they did not have a mental disorder
• Those who commit crimes of survival due to poverty, for example, "dining and dashing" or stealing something from a store
• Those who commit offences related to an alcohol or drug problem—a problem that is more frequent among individuals who suffer from a mental disorder
• A certain number of individuals with personality disorders and who commit minor crimes, particularly acts of violence towards other people
• Finally, a low percentage of individuals whose symptoms (delusions, hallucinations, etc.) led to violent acts

The Quebec Review Board (QRB)

La Quebec Review Board (QRB), known in French as the Commission d'examen des troubles mentaux du Québec (CETM) is an administrative court created in 1992 in accordance with the Criminal Code. The QRB renders decisions concerning people who are found unfit to stand trial or not criminally responsible on account of mental disorder. As long as the defendant is not unconditionally released or deemed fit to stand trial, a review must be held each year. The QRB always includes at least three members including a lawyer and a psychiatrist.

To stand trial, a defendant must be fit

If a person has committed an offence under the Criminal Code and suffers from a mental health problem, his or her fitness to stand trial may be questioned. The term "fit to stand trial" refers to the mental state of the defendant at the time of the legal proceedings. (Section 2, Canadian Criminal Code).

A person is unfit to stand trial if, because of a mental heath disorder, he or she does not understand the nature and object of the charge or the possible consequences of the charge or if he or she is not capable of communicating with counsel.

In Canada, the judge issues an order for an assessment by a mental health professional (generally a psychiatrist) of the person's ability to stand trial and a report is submitted to the Court.

If a person is found fit to stand trial, the trial can begin.

If a person is found unfit to stand trial, the legal proceedings are suspended. The QRB then transfers the person to a psychiatric institution, often to the Institut Pinel (a forensic psychiatric institution) if they have committed a serious offence. If the person agrees, she may receive treatments. The person goes before the QRB, which assesses the person's fitness.

Once the defendant is fit to stand trial, the QRB sends the person to the regular court and specifies the measures to be taken to ensure that he or she remains fit and to protect the public.

If the defendant is still unfit, the QRB renders a decision as to whether he or she should be kept in custody or released. The QRB may also recommend suspending proceedings against the defendant, for example, in the case that it is clear the person will never be fit (because of an intellectual disability) and does not represent a danger to society.

There are no recent data on the precise number of people who are assessed for fitness to stand trial each year. In Canada, the number is estimated to be around 5 000.

The criminal responsibility of a defendant with a mental disorder

Criminal responsibility refers to the mental state of a defendant at the time of the offence.

A person is not criminally responsible if he has a mental disorder that makes him unable to judge the nature or quality of the criminal act or to understand that the act was wrong at the time it was committed. (Section 16, Canadian Criminal Code).

The mere fact of suffering from a mental disorder does not automatically exempt a person from criminal responsibility. A thorough legal and psychiatric review will determine the person's state. The verdict will then be guilty, not guilty, or not criminally responsible on account of mental disorder.

If a person is declared not criminally responsible, chances are he or she will not be released right away. The Quebec Review Board (QRB) will first have to assess the risk that this person poses to public safety. Hearings are then held at the institution where the defendant is held in custody. If the QRB believes that the person poses a significant risk to society, he or she will remain in custody of a hospital designated by the QRB. Otherwise, the person must be released either with or without conditions.

A few statistics on individuals found not criminally responsible on account of mental disorder:

• Each year in Quebec, between 350 and 400 men and women are declared not criminally responsible on account of mental disorder
• The majority are diagnosed with a schizophrenia spectrum disorder
• About 85% are men
• The average age is 36 years
• A third live in Montreal and half in the Montreal region
• Half do not have criminal records