National Defence Act (R.S.C., 1985, c. N-5)

Mental Disorder When Offence Committed

Marginal note:Defence of mental disorder

• 202.13 (1) No accused person shall be held responsible under this Act for a service offence in respect of 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.

• Marginal note:Presumption

  (2) Every person is presumed not to suffer from a mental disorder so as to be exempt from responsibility by virtue of subsection (1), until the contrary is proved on the balance of probabilities.

• Marginal note:Burden of proof

  (3) The burden of proof that an accused person was suffering from a mental disorder so as to be exempt from responsibility is on the party raising the issue.

• Marginal note:Assessment order

  (4) Subject to regulations, where a court martial has reasonable grounds to believe that evidence of the mental condition of an accused person is necessary for the purpose of determining whether the accused person was, at the time of the commission of the alleged offence, suffering from a mental disorder so as to be exempt from responsibility, the court martial may make an order for an assessment of the accused person.

Marginal note:Finding of not responsible on account of mental disorder

• 202.14 (1) If a court martial finds that an accused person committed the act or made the omission that forms the basis of the offence charged but was suffering at the time from a mental disorder so as to be exempt from responsibility, the court martial shall make a finding that the accused person committed the act or made the omission but is not responsible on account of mental disorder.

• Marginal note:Effects

  (2) Where a finding of not responsible on account of mental disorder is made, the accused person shall not be found guilty or convicted of the offence, but

  • (a) the accused person may not be tried or tried again in respect of that offence or any other substantially similar offence arising out of the facts that gave rise to that offence;

  • (b) any civil court may take into account the finding in considering any application for judicial interim release or in considering the dispositions to make or sentence to impose against that person for any other offence;

  • (c) any court martial or the Court Martial Appeal Court may consider the finding in considering an application for release pending appeal under Division 10 or in considering the dispositions to make or sentence to impose against that person for any other offence;

  • (d) [Repealed, 1998, c. 35, s. 51]

  • (e) the finding may be considered in making an order under Division 3 in respect of that person;

  • (f) [Repealed, 2019, c. 15, s. 33]

  • (g) the finding does not include a finding or determination respecting civil liability; and

  • (h) the Parole Board of Canada or any provincial parole board may take the finding into account in considering an application by that person for parole or for a record suspension under the Criminal Records Act in respect of any other offence.

• Marginal note:Finding not previous conviction

  (3) A finding of not responsible on account of mental disorder is not a previous conviction for the purposes of any offence under any Act for which a greater punishment is prescribed by reason of previous convictions.

Marginal note:Disposition hearing

• 202.15 (1) Where a court martial makes a finding of not responsible on account of mental disorder in respect of an accused person, the court martial shall hold a hearing and make a disposition under section 202.16, where the court martial is satisfied that it can readily make a disposition in respect of the accused person and that a disposition should be made without delay.

• Marginal note:Assessment order

  (2) Subject to regulations, where a court martial has reasonable grounds to believe that evidence of the mental condition of an accused person is necessary for the purpose of determining the appropriate disposition to be made under this section, the court martial may make an order for an assessment of the accused person.

Marginal note:Disposition

• 202.16 (1) When a court martial makes a disposition by virtue of subsection 202.15(1), it shall, taking into account the safety of the public, which is the paramount consideration, the mental condition of the accused person, the reintegration of the accused person into society and the other needs of the accused person, make one of the following dispositions that is necessary and appropriate in the circumstances:

  • (a) by order, direct that the accused person be released from custody without conditions if, in the opinion of the court martial, the accused person is not a significant threat to the safety of the public;

  • (b) by order, direct that the accused person be released from custody subject to such conditions as the court martial considers appropriate; or

  • (c) by order, direct that the accused person be detained in custody in a hospital or other appropriate place determined by the court martial, subject to such conditions as the court martial considers appropriate.

• Marginal note:Treatment not a condition

  (2) No order made under subsection (1) shall direct that any psychiatric or other treatment of the accused person be carried out or direct that the accused person submit to such treatment, except that the order may include a condition regarding psychiatric or other treatment where the accused person has consented to the condition and the court martial considers the condition to be reasonable and necessary in the interests of the accused person.

High-Risk Accused

Marginal note:Application to court martial

• 202.161 (1) If a court martial makes a finding under subsection 202.14(1) that an accused person is not responsible on account of mental disorder and it has not terminated its proceedings in respect of the accused person, the Director of Military Prosecutions may make an application to the court martial for a finding that the accused person is a high-risk accused.

• Marginal note:Application to Chief Military Judge

  (2) If the court martial has terminated its proceedings in respect of the accused person, the Director of Military Prosecutions may make the application to the Chief Military Judge. On receipt of the application, the Chief Military Judge shall cause the Court Martial Administrator to convene a Standing Court Martial.

• Marginal note:Restriction

  (3) No application shall be made under subsection (1) or (2) if a disposition has been made to release the accused person from custody without conditions or to discharge the accused person absolutely.

• Marginal note:Finding

  (4) The court martial referred to in subsection (1) or (2) may, at the conclusion of a hearing, find the accused person to be a high-risk accused if the accused person has been found not responsible on account of mental disorder for a serious personal injury offence, the accused person was 18 years of age or more at the time of the commission of the offence and

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

  • (b) the court martial 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.

• (5) [Repealed, 2019, c. 15, s. 64]

• Marginal note:Factors to consider

  (6) In deciding whether to find that the accused person is a high-risk accused, the court martial shall consider all relevant evidence, including

  • (a) the nature and circumstances of the offence;

  • (b) any pattern of repetitive behaviour of which the offence forms a part;

  • (c) the accused person’s current mental condition;

  • (d) the past and expected course of the accused person’s treatment, including the accused person’s willingness to follow treatment; and

  • (e) the opinions of experts who have examined the accused person.

• Marginal note:Detention of high-risk accused person

  (7) If the court martial finds the accused person to be a high-risk accused, the court martial shall make a disposition under paragraph 202.16(1)(c), but the accused person’s detention must not be subject to any condition that would permit the accused person to be absent from the hospital or other appropriate place unless

  • (a) it is appropriate, in the opinion of the person in charge of the hospital or other appropriate place, for the accused person to be absent from the hospital or place for medical reasons or for any purpose that is necessary for the accused person’s treatment, if the accused person is escorted by a person who is authorized by the person in charge of the hospital or place; and

  • (b) a structured plan has been prepared to address any risk related to the accused person’s absence and, as a result, that absence will not present an undue risk to the public.

• Marginal note:Assessment order

  (8) Subject to regulations, if the court martial has reasonable grounds to believe that evidence of the mental condition of an accused person is necessary for the purpose of determining the appropriate disposition to be made under this section, the court martial may make an order for an assessment of the accused person.

Marginal note:Referral to court martial for review

• 202.162 (1) If a Review Board, in exercising a power under section 202.25, decides to refer to a court martial for review under subsection 672.84(1) of the Criminal Code a finding that an accused person is a high-risk accused, the Review Board shall, immediately after making the decision, cause a copy of it to be sent to the Chief Military Judge.

• Marginal note:Convening court martial

  (2) On receipt of a copy of the decision, the Chief Military Judge shall cause the Court Martial Administrator to convene a Standing Court Martial to review the finding.

• Marginal note:Review of finding by court martial

  (3) The court martial shall, at the conclusion of a hearing, revoke the finding if the court martial is satisfied that there is not a substantial likelihood that the accused person will use violence that could endanger the life or safety of another person, in which case sections 202.15 and 202.21 apply as if the court martial has made a finding of not responsible on account of mental disorder.

• Marginal note:Finding not revoked

  (4) If the court martial does not revoke the finding, it shall immediately send to the Review Board, in original or copied form, a transcript of the hearing, any other document or information related to the hearing, and all exhibits filed with it, if the transcript, document, information or exhibits are in its possession.

• Marginal note:Assessment order

  (5) Subject to regulations, if the court martial has reasonable grounds to believe that evidence of the mental condition of the accused person is necessary for the purpose of determining whether to revoke the finding, the court martial may make an order for an assessment of the accused person.

General Provisions Respecting Assessment Orders, Dispositions and Assessment Reports

Marginal note:Conditions for custody

• 202.17 (1) An accused person shall not be placed in custody under an assessment order made by a court martial under this Division unless

  • (a) the court martial is satisfied that on the evidence custody is necessary to assess the accused person, or that on the evidence of a medical practitioner custody is desirable to assess the accused person and the accused person consents to custody;

  • (b) custody of the accused person is required in respect of any other matter or by virtue of any other provision of this Act or the Criminal Code; or

  • (c) the prosecutor, having been given a reasonable opportunity to do so, shows that the detention of the accused person in custody is justified having regard to all the circumstances, including those set out in paragraphs 158(1)(a) to (e).

• Marginal note:Report of medical practitioner in writing

  (2) For the purposes of subparagraph (1)(a), where the prosecutor and the accused person agree, the evidence of a medical practitioner may be in the form of a report in writing.

• Marginal note:No treatment order on assessment

  (3) No assessment order made under this Division shall direct that any psychiatric or other treatment of an accused person be carried out or direct that the accused person submit to such treatment.

Marginal note:No custody or release orders during assessment

• 202.18 (1) During the period that an assessment order made by a court martial under this Division is in force, no order may be made for custody or release from custody of the accused person under any provision of Division 3 or for release from detention or imprisonment under any provision of Division 10 in respect of that offence or an included offence.

• Marginal note:Variation of assessment order

  (2) Subject to subsection 202.17(1), a court martial may, at any time while an assessment order made by the court martial under this Division is in force, if it is established to the satisfaction of the court martial on a balance of probabilities that it is necessary to do so, vary the terms and conditions respecting the custody or release from custody of the accused person specified in the order in such manner as the court martial considers appropriate in the circumstances.

Marginal note:Assessment report

• 202.19 (1) An assessment order made by a court martial under this Division may require the person who makes the assessment to submit in writing an assessment report on the mental condition of the accused person.

• Marginal note:Assessment report to be filed with court

  (2) An assessment report shall be filed with the court martial that ordered it at the place and within the period specified by the court martial.

• Marginal note:Distribution of assessment report

  (3) Subject to regulations, where an assessment report is filed pursuant to subsection (2), the court martial shall cause copies of it to be sent to the prosecutor, the accused person and any counsel representing the accused person.

• Marginal note:Assessment report part of record

  (4) Subject to regulations, an assessment report shall form part of the record of the proceedings in respect of which it was prepared.

Marginal note:Effective date of disposition

202.2 A disposition made in respect of an accused person under section 201, 202 or 202.16 shall come into force on the day that it is made or on any later day that the court martial specifies in it, and shall remain in force until the Review Board of the appropriate province holds a hearing and makes a disposition under section 672.83 of the Criminal Code.