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Not Criminally Responsible but still criminal.

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Not Criminally Responsible but still criminal.

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Click on the link below to read a fact sheet on the process for being found 'Unfit to Stand Trial' or 'Not Criminally Responsible' after being charged with a crime. A clear example of how medicine and law shore up the power of the 'institutional industrial system' (Ben Moshe, 2014)

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On this page:
If you are placed under the authority of the Ontario Review Board (ORB) after you have been found Unfit to Stand Trial (Unfit) or Not Criminally Responsible (NCR), you must follow the orders of the ORB the same way you must follow the orders of a judge.

The ORB is a panel, usually made up of:

a psychiatrist

a mental health professional, such as a psychiatrist or psychologist

a lawyer

a person from the community with a background in mental health

chairperson who is either a senior lawyer or a retired judge.

This panel is responsible for making ongoing decisions about you. The members review your situation regularly. They decide things like:

what level of security you should have

whether you will go to a hospital

which hospital you will go to

when you can have privileges to go back into the community

what kind of supervision and support you should have in the community.

If the court had a disposition hearing, and you did not obtain an absolute discharge during that hearing, you will have your first ORB hearing within 90 days. If the court did not have a disposition hearing, you will have your first hearing with the ORB sooner-within 45 days.

After your first ORB hearing, you will have one ORB hearing every year. On rare occasions, it is possible that you could have a special early hearing if there has been a major change in your situation or your health.

Hearings usually take place in a boardroom or special hearing room in the hospital. In more rural areas, a person may have to travel to get to the ORB hearing. ORB hearings are less formal than courtroom proceedings, but they still have rules that must be followed.

You will sit in front of the ORB panel with your lawyer. A Crown counsel, your psychiatrist and a representative from the hospital will also be there. Most of the time, ORB hearings are open to the public, so your family and friends can attend.

The panel hears evidence from you and your lawyer, your psychiatrist and sometimes other people, such as a family member or another specialist. The hospital submits a report to the ORB giving your history and progress. You and your lawyer get a copy of this report.

If you have been found NCR, your ORB hearing can have one of three outcomes:

1. The Criminal Code of Canada says that the ORB must grant you an absolute discharge if you are not "a significant threat to the safety of the public." Absolute discharge means that you are no longer under the authority of the ORB. You are free to live where and how you wish within the limits of the law. An important legal case in 1999 clarified the meaning of "significant threat." It means "a real risk of physical or psychological harm to members of the public that is serious in the sense of going beyond the merely trivial or annoying" [Winko v. British Columbia (Forensic Psychiatric Institute)].

2. You may be given a conditional discharge. This means that you are no longer required to live in the hospital. However, you must follow the conditions set by the ORB. These might include reporting to the hospital and giving urine samples to test for alcohol or drug use. You must continue to attend annual ORB hearings. If you do not follow the conditions set for you, you could be arrested again. The ORB believes that you would be a significant threat to the public if you were not following the conditions.

3. You are subject to a detention order. This means that the ORB believes you would be a significant threat to the public if you were released. You remain under the authority of the ORB and you will have another ORB hearing in one year.

If you have been found Unfit to Stand Trial, your ORB hearing can have one of three outcomes:

1. You are found Fit to Stand Trial. The ORB may decide that you are now Fit and able to face your charges in court. In this case, you will no longer be under the authority of the ORB. You will be sent back to court.

2. You remain Unfit to Stand Trial and get a conditional discharge. This means that you are no longer required to live in the hospital. However, you must follow the conditions set by the ORB. These might include reporting to the hospital and giving urine samples to test for alcohol or drug use. If you do not follow the conditions set for you, you could be arrested again. If your doctor decides, at any time during the year, that you are now Fit, she or he can contact the ORB for a hearing. If the Board finds you Fit, you will return to court.

3. You remain Unfit to Stand Trial and you are subject to a detention order. This means that you are still under the authority of the ORB and may have to stay in the hospital. You will have another ORB hearing in one year unless your doctor believes you have become Fit before that time.

After your ORB hearing, the ORB will make a disposition. This is a decision, or order. The disposition states:

whether you should be placed in the community, with regular hospital visits

whether you will be hospitalized

what level of security you require

what types of privileges you can have

what conditions you must obey over the next year.

Some examples of conditions placed on you might include:

giving random urine samples to see if you have been using drugs or alcohol

making regular visits to your case worker or psychiatrist

not carrying or owning weapons.

Also, you must follow the rules and regulations of the hospital unit you are connected to.

If you have been found Unfit to Stand Trial, or Not Criminally Responsible (NCR), there is no set date for release the way there is with a jail sentence. You may have to spend longer in the hospital than you would have spent in jail if you had been found guilty in court.

You will usually go to a hospital with a forensic program. The ORB will choose the hospital, based on where you lived before you were arrested and what level of security you require. The ORB may also try to place you close to family, cultural supports or treatments that could help you.

Ontario hospitals with forensic programs:

Like prisons, hospital units in the forensic mental health system can be maximum, medium or minimum security. Some people must work their way from the most secure (maximum) to the least secure (minimum). Others will be placed on a minimum unit right away. The level of security you require is related to the risk you present to the community and your health needs.

The ORB disposition will list the privileges you may have for one year (until your next ORB hearing). Privileges involve increasing amounts of freedom and responsibility, such as walking on the hospital grounds or visiting the community. The doctor and multidisciplinary team will decide what level of privilege you will start with and work toward, as long as the privileges are allowed by your ORB disposition.

The team may take away, or suspend, privileges if you do not use them properly or do not follow unit rules. The team will also suspend privileges if they are concerned that you are a danger to yourself or others.

If your disposition allows you a privilege in the company of an approved person, a family member or friend can apply. That person must have a criminal background check and an interview with your team. An approved person must obey the rules of your disposition. Talk to your team about who would make a good approved person.

If you use your privileges without problems and follow the unit rules, the team will usually recommend at your yearly ORB hearing that your privileges be increased.

Over the year, you will work with your psychiatrist and multidisciplinary team to improve or maintain your mental health. Your goal is to show that you can use your highest level of privileges without problems. Before your annual ORB hearing, the team will meet to discuss your progress.

Each year, the hospital will write a report for the ORB, outlining:

good and bad things that have happened over the past year

the privileges and conditions recommended by the team for the next year

your expectations and hopes for the next year, if you have told the team what they are.

Many forensic programs use risk assessments to help them decide on privileges and recommendations to the ORB. "Risk" refers to the likelihood that you will commit another offence. Usually, the forensic mental health system is interested in your risk for committing a violent act. Most risk assessments involve an interview with a psychologist or psychiatrist, or with other mental health professionals.

You can choose not to take part in the interview. The assessor might also read your hospital files and talk to members of your family and support network.

Decisions are made by a majority vote. The Board considers four things:

1. Are you a risk to members of the public?

2. How is your mental health now? How has it been over the past year?

3. How well integrated into society are you? For instance, do you have good connections to any friends or family? Could you do a job or be a volunteer? Do you have any income? Could you successfully live outside of the hospital?

4. Do you have any other needs that should be considered?

Given the answers to each of these questions, the ORB has to decide what will be the "least onerous and least restrictive" disposition. This means that the ORB has to give you the most freedom possible. At the same time, the ORB must keep in mind your safety, your treatment needs and the safety of the public.

If you believe that the ORB has made an unfair decision, there is a process of appeal. This involves the Court of Appeal, which is part of the criminal justice system. You cannot appeal an ORB decision just because you don't like it. You have to be able to argue that the decision was not made fairly or lawfully. Talk to your lawyer to find out more.
The Forensic Mental Health System in Ontario: An Information Guide

1. Introduction

2. Who works in the forensic mental health system?

3. What happens inside the forensic mental health system?

4. The Ontario Review Board (ORB)

5. Accepting or refusing treatment in the forensic mental health system

6. Living in a forensic mental health setting

7. Family, friends and the forensic mental health system

8. Leaving the forensic mental health system

Conclusion Where to go for more information

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On this page: If you are placed under the authority of the Ontario Review Board (ORB) after you have been found Unfit to Stand Trial (Unfit) or Not Criminally Responsible (NCR), you must follow the orders of the ORB the same way you must follow the orders of a judge.

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CBC's The Current: The Ashley Smith case and Mental Health in Canadian Prisons (July 17, 2015)

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CBC's The Current: The Ashley Smith case and Mental Health in Canadian Prisons (July 17, 2015)

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Application: Time: Kalief Browder's Story Trailer

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Application: Time: Kalief Browder's Story Trailer

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This is the trailer of a documentary produced about a young teen spending three years on Rikers Island for a crime he did not commit and was not convicted of. He spent majority of his time in solitary confinement which lead to his suicide shortly after his release. The below trailer will demonstrate how carceral interventions can impact an individuals life.

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"TIME: The Kalief Browder Story" is a documentary series about a 16 year-old student from the Bronx who spent three years on Rikers Island without ever being convicted of a crime. Subscribe for more: spke.co/1pmVCvW Follow Spike Facebook: https://www.facebook.com/spike Twitter: @Spike (https://twitter.com/Spike) Instagram: @SpikeTV (https://instagram.com/SpikeTV)

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Against the Grain: Incarceration and Beyond (December 2014)

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Against the Grain: Incarceration and Beyond (December 2014)

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Check out the graph below to see how rates of imprisonment correspond with de-institutionalization. Think critically with Ben Moshe about who is missing or erased in these statistics.

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Malacrida, (2015) Resisting institutional order

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Malacrida, (2015) Resisting institutional order

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Abbas & Voronka, (2014) Remembering institutional erasures: The meaning of histories of disability incarceration in Ontario

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Abbas & Voronka, (2014) Remembering institutional erasures: The meaning of histories of disability incarceration in Ontario

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The institution yet to come: Analyzing incarceration through a disability lens (Ben Moshe 2013) 

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The institution yet to come: Analyzing incarceration through a disability lens (Ben Moshe 2013) 