• Lewis Waring

Reducing Stigmatization of Mental Illness and Furthering Equality - Jodi Plenert

With the rising awareness of the prevalence of mental disorders, society has started to emphasize the importance of mental health. However, individuals living with mental illness still bear the burdens of stigmatization and discrimination. The general public continues to view and treat individuals living with mental disorders as menacing, under-developed, and less-than-human. Furthermore, individuals with mental disorders who commit criminal acts are seen by society as inherently dangerous and incapable of rehabilitation. However, many individuals with mental disorders who commit criminal acts have never been treated or medicated for their disorder. A “not criminally responsible due to mental disorder” defence (“NCRMD”) aims to rehabilitate convicted individuals with mental disorders through psychiatric care rather than through the prison system. Similarly to the general public, the legal system can stigmatize and discriminate against individuals with mental disorders. However, the recent Supreme Court of Canada (“the Court”) case Ontario (Attorney General) v. G (“G”) furthered equality rights by addressing the discriminatory treatment of individuals found NCRMD for sexual offences.


Media and entertainment often depict individuals with mental disorders as dangerous, violent and unpredictable. News articles and headlines sensationalize the violent acts of those living with mental disorders. This stereotyping contributes to the fearful and uneducated public perception of mental illness and stigmatizes those living with mental disorders, creating a negative perception of mental illness. Society commonly perceives individuals with mental disorders as fearful, irresponsible, and childlike. This stigmatization leads to prejudice towards those with mental disorders, endorsing the negative stereotype, and this prejudice ultimately leads to the discrimination of individuals with mental disorders. This discrimination manifests in many ways, including ostracization, oppression, and patronization. Discrimination of individuals with mental disorders is prevalent in society’s interactions with individuals with mental disorders, as well as in the legal system. However, there are mechanisms in the criminal law system aimed at rehabilitating those with mental disorders, such as the NCRMD defence.


Individuals who commit criminal acts due to a mental disorder can use a special defence of NCRMD. Individuals found guilty of a criminal charge possess the requisite voluntariness and mens rea of the criminal act, unlike those who commit the criminal act due to a mental disorder. An individual that commits a criminal act due to their mental disorder lacks the requisite mens rea: their actions are a result of their mental disorder. The mental disorder causes the individual to act involuntarily or renders them incapable of understanding the nature and inherent wrongness of the act. Therefore, the legal system provides the defence of NCRMD.

There are stringent criteria to be met in order to be eligible for the NCRMD defence. Section 16(1) of the Criminal Code (“the Code”) says “[n]o person is criminally responsible for 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”. To engage the NCRMD defence, an individual must establish that at the time of the incident they were suffering from a disease of the mind that deprived them of the capacity to appreciate the nature and quality of the act or omission or to know the conduct was wrong. This defence excludes self-induced intoxication or fleeting mental conditions. A successful NCRMD defence acknowledges that the accused committed the crime but that they are not criminally responsible for their actions. However, a successful NCRMD defence does not find that the individual did not commit the criminal act nor does it result in an acquittal. An NCRMD defence is not a “free pass”. The accused, after being found NCRMD, are not imprisoned