Legal Aspects

A psychiatrist will evaluate whether or not the accused fits the criteria to stand trial, including their ability to distinguish between available pleas, understand the nature and purpose of the proceeding (including the roles of everyone involved), understand the impact of the proceeding (possible consequences), communicate with counsel and converse with counsel rationally or make critical decisions on counsel’s advice, and take the stand (if necessary) and respect the decorum of the court (R. c. Steele, 1991).

A psychiatrist will evaluate whether or not, at the moment the crime was committed, the accused suffered from a mental disorder that rendered them incapable of appreciating the nature and quality of the act or omission of or knowing it was wrong. (Criminal Code, R.S.C. 1985, art. 16 (1)).

A verdict of not criminally responsible on account of mental disorder (NCRAMD) is given when the judge or jury finds that the accused committed the act or made the omission that formed the basis of the offence charged, but was at the time suffering from mental disorder so as to be exempt from criminal responsibility (Criminal Code, R.S.C. 1985, art. 672.34). An individual found not criminally responsible due to mental disorder is neither acquitted nor found guilty (Latimer and Lawrence, 2006).

When the court decides that an individual is unfit to stand trial or is declared not criminally responsible on account of mental disorder, a custody order will be issued by the Tribunal administratif du Québec (Review Board for Mental Disorder).

Following the court’s decision, the Tribunal administratif du Québec must meet with the individual no later than 90 days following the decision.

The Review Board for Mental Disorder can then render one of three decisions: discharged absolutely, discharged subject to conditions, or custody in a hospital (Criminal Code, R.S.C. 1985, art. 672.54).

All Tribunal administratif du Québec court orders for individuals with a mandate of conditional discharge or custody in hospital will be re-evaluated on an annual basis.

For more information about the Review Board for Mental Disorder, please see the Guide below:

English

French

A provincial or federal sentence is a decision rendered by the court following the commission of a criminal act. A sentence is given to the individual who is found guilty and responsible for their actions.

Prison institutions can request hospitalization in order to evaluate or stabilize the detained individual’s mental state.

To be granted parole, individuals being detained must meet certain established conditions based on dates provided at sentencing, as well as receive authorization from the Parole Board of Canada or the Commission des libérations conditionnelles.

Criminal Code 

An individual may be kept in preventative confinement in hospital against their will. This is a medical decision without authorization of the court or psychiatric examination. This type of confinement is issued when a physician is of the opinion that the mental state of the individual presents a grave and immediate danger to themselves or others (Law P-38.001. Art. 7).

Length: 72 hours maximum

Also known as an application for psychiatric assessment, this type of custody requires two psychiatric exams and is ordered by the court at the request of a physician or an interested third party. Interim custody takes place when an individual refuses to submit to a psychiatric examination while there are serious grounds indicating that their mental state presents a danger to themselves or others.

If preventative confinement has already been issued, a psychiatric examination must be performed no later than 24 hours following the order for interim custody. A second psychiatric examination must then be completed 48 hours following the order.

If no preventative confinement has been issued, a psychiatric examination must be performed no later than 24 hours following the order for interim custody. A second psychiatric examination must then be completed no later than 96 hours following the confinement of the individual.

When two psychiatric examinations determine a need for confinement and the court finds serious grounds indicating the individual presents a danger to themselves or others and their confinement is necessary, the individual can be hospitalized against their will. This hospitalization is authorized by the court for a period of at least 21 days. The confinement can be extended at the end of this period.

As well, this confinement can be contested before the Tribunal administratif du Québec, Social Affairs Section. The TAQ will evaluate the individual’s dangerousness and decide whether or not to uphold the confinement.

Confinement ends when the evaluating physician decides it is no longer justified, if no psychiatric reports have been produced, at the expiry of the time fixed in the judgement, or by decision of the TAQ.

In the event that an individual is unable to give or refuse their consent to receive care, an authorized person can do so in their place. A request for care authorization can be presented to the Superior Court of Québec, for example when an individual is incapable of consenting to care (unfit), understanding the care being offered, recognizing the need for treatment, or recognizing the risks associated with the absence of care (C.C.Q. art. 11 à 15).

Putting an individual into protective supervision (as tutor or curator) is a legal way to protect and ensure their moral and material welfare as well as the estate of an individual who has become incapacitated. Incapacity is the permanent, temporary, or partial inability to look after oneself or one’s property. The Québec Curator Public is responsible for a variety of protective supervisions.