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According to the Canadian Constitution, people who commit criminal acts while suffering from a mental illness should not be held criminally responsible for their acts in the same way that sane, responsible people are.

Criminal responsibility can only be assigned when the accused is capable of making choices between right and wrong. An accused must be capable of understanding that his or her behaviour was wrong in order to be found guilty of an offence, according to the Criminal Code of Canada.

The code says no person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of knowing that an act or omission was wrong.

While an accused found not criminally responsible on account of mental disorder by a court is not convicted in the usual sense, the verdict does not constitute an acquittal; it represents a third option. An accused who is found not criminally responsible is diverted to a provincial or territorial review board which is a specialized tribunal chaired by a judge, or an individual qualified for a judicial appointment, and comprised of at least four other members, one of which must be entitled under the laws of the particular province to practice psychiatry.

This separate stream is set up because the public may still require protection from future dangerous behaviour. The goal of a review board is to conduct an individual assessment of the accused and subsequently craft a disposition that both protects the public and attempts to provide opportunities to treat the underlying mental disorder.

While most cases are diverted to a review board, the court which renders the verdict also has the authority to order a disposition if it is satisfied that it could readily do so and that a disposition should be made without delay. There are three dispositions available to a court or Review Board:

• an absolute discharge
• a conditional discharge
• detention in custody in a hospital

If the court orders a conditional discharge or detention, the review board is still obligated to hold a hearing and order a new disposition within 90 days. With the exception of cases that receive an absolute discharge by the courts, review boards are generally responsible for determining the appropriate disposition of an accused found not criminally responsible.

The court or review board must order the disposition that is the least restrictive to the accused. The court or review board must balance the dual roles of protecting the public and treating the accused in a fair and humane manner that respects his or her rights. They take into account "the need to protect the public from dangerous persons, the mental condition of the accused, the reintegration of the accused into society and the other needs of the accused."

If the court or review board orders an absolute discharge, the not criminally responsible accused is released from further involvement with the system for the specific offence that led to the verdict.

If the court or review board orders a conditional discharge, the accused is supervised in the community through the imposition of restrictions on his or her liberty. Typical conditions ordered by a court or review board during a conditional discharge specify that the not criminall responsible accused must:

• reside in a particular place
• abstain from illegal drugs and/or alcohol
• submit to urinalysis testing for prohibited substances
• abide by a specified treatment plan
• report to a designated person on a scheduled basis
• refrain from possessing weapons.

Although these represent some of the most common conditions, the accused may be discharged subject to any conditions the court or review board considers appropriate.

If the court or review board orders detention, the accused will be placed in custody within a hospital. There are still times, however, when he or she will be managed within the community under conditions. The court or review board can delegate authority to manage the accused to the hospital where the accused has been detained.

The hospital administrator has the power to increase or decrease the restrictions on the accused. Therefore, it is possible for an accused to leave hospital grounds with permission from the hospital administrator.

Review boards must hold a hearing every year in order to review the disposition. During these annual reviews, boards can impose any of the three available dispositions and alter any of the conditions previously imposed on the accused.

In addition to these annual reviews, additional mandatory reviews do occur within the year if, for example, restrictions on the liberty of an accused have been significantly increased for a period exceeding seven days or if a hospital administrator requests a review. Finally, discretionary reviews are possible upon the request of the accused or any other party.

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