- An NCR finding means an accused person committed the act, but is not criminally responsible because a mental disorder rendered them incapable of appreciating the nature and quality of the act, or of knowing it was wrong.
- The test comes directly from section 16 of the Criminal Code, and the party raising the defence — usually the defence, though occasionally the Crown — must prove it on a balance of probabilities.
- NCR and “unfit to stand trial” are entirely different legal questions — fitness is about the accused's current ability to understand and participate in the proceedings, while NCR is about their mental state at the time of the offence.
- An NCR finding is neither an acquittal nor a conviction — the person is instead referred to the Ontario Review Board, which holds regular hearings.
- The Review Board can order an absolute discharge, a conditional discharge, or detention in a psychiatric facility, based on whether the person poses a significant threat to public safety.
- NCR is not an “easy way out” — it requires genuine expert psychiatric evidence, and detention under an NCR finding can, in some cases, last longer than an ordinary criminal sentence would have.
The Short Answer
An NCR — Not Criminally Responsible on Account of Mental Disorder — finding means a court has accepted that the accused committed the act, but is not criminally responsible for it because a mental disorder rendered them incapable of appreciating what they were doing, or of knowing it was wrong. It is a distinct legal outcome, governed by section 16 of the Criminal Code, that leads to a specialized process through the Ontario Review Board rather than an ordinary sentence.
What an NCR Finding Actually Means
Canadian criminal law generally requires the Crown to prove both a wrongful act and a guilty mind before a conviction can result. The NCR defence operates differently — it does not dispute that the accused physically committed the act. Instead, it argues that, because of a mental disorder present at the time, the accused lacked the mental capacity the criminal law requires before someone can be held responsible for their conduct. If successful, the result is neither a conviction nor a straightforward acquittal, but a special verdict recognized specifically for this situation.
The Legal Test Under Section 16
Section 16 of the Criminal Code sets out the test in two alternative branches. A person is not criminally responsible for an act or omission committed while suffering from a mental disorder that rendered them incapable of either:
| Branch | What It Requires |
|---|---|
| Incapable of appreciating the nature and quality of the act | The person did not understand the physical nature or consequences of what they were actually doing |
| Incapable of knowing the act was wrong | The person could not understand, morally or legally, that what they were doing was wrong |
Either branch, if established, satisfies the test — the accused does not need to prove both. The disorder must have existed at the time of the offence, and its effect must have reached this specific threshold of incapacity, not simply reflect the presence of a mental health diagnosis in general.
Having a diagnosed mental illness does not, by itself, establish an NCR defence. The disorder must have produced the specific incapacity the test requires — an inability to appreciate the nature and quality of the act, or to know it was wrong — at the precise time the offence occurred.
Who Has to Prove It, and How
Every person is presumed not to suffer from a mental disorder sufficient to exempt them from criminal responsibility, until the contrary is proven. The burden of proof falls on whichever party raises the issue — almost always the defence, though in narrow circumstances the Crown may raise it instead. That party must establish the defence on a balance of probabilities, meaning it is more likely than not that the accused met the test at the time of the offence. This is a lower threshold than the Crown's usual burden of proof beyond a reasonable doubt, but it is a real, substantive burden that cannot be met without credible evidence.
An NCR defence is not established through the accused's own account alone. Courts require genuine psychiatric or psychological expert evidence assessing the accused's mental state at the relevant time, typically involving a detailed clinical assessment specific to the alleged offence.
NCR vs. Unfit to Stand Trial
NCR and “unfitness to stand trial” are frequently confused, but they ask fundamentally different things:
| Question | NCR (s.16) | Unfit to Stand Trial |
|---|---|---|
| Timing | Mental state at the time of the offence | Mental state right now, during the proceedings |
| What it asks | Could the accused appreciate the act, or know it was wrong, when it happened? | Can the accused understand the proceedings and communicate with their lawyer today? |
| Outcome | Special NCR verdict, referred to the Review Board | Trial is paused until fitness is restored, or addressed through the Review Board process |
An accused can be perfectly fit to stand trial today and still raise an NCR defence about their mental state months or years earlier, at the time of the alleged offence. The two issues are assessed separately, sometimes even by different experts, because they turn on different points in time and different legal questions entirely.
What Happens After an NCR Finding
An NCR finding is not an acquittal — the person doesn't simply walk free — and it is not a conviction either. Instead, it triggers a specialized process. The court, or more commonly a specialized tribunal called the Ontario Review Board, holds a disposition hearing to determine what happens next, based on the person's current mental state and their risk to public safety, not on punishing them for the underlying act.
How the Ontario Review Board Process Works
The Ontario Review Board holds an initial hearing after an NCR finding, and then regular hearings — typically annually — for as long as the person remains under its jurisdiction. At each hearing, the Board must choose from three possible dispositions, based on whether the person poses a significant threat to the safety of the public:
If the Board concludes the person is not a significant threat to public safety, it must order an absolute discharge. The person is no longer subject to any conditions and falls outside the Board's jurisdiction entirely.
If some risk remains, but detention isn't necessary, the Board can order a discharge into the community subject to specific conditions — such as ongoing treatment, reporting requirements, or restrictions on contact or location.
If the Board concludes the person remains a significant threat to public safety, it can order detention in a psychiatric facility, again subject to conditions, with treatment and progress reviewed at each subsequent hearing.
Throughout this process, the person is entitled to be treated with dignity and given the maximum liberty consistent with public safety and fairness — the framework is designed around ongoing assessment and treatment, not fixed punishment.
Why NCR Is Not an “Easy Way Out”
NCR is popularly misunderstood as a way to avoid consequences, but the reality is considerably more complicated:
- It requires genuine expert evidence — a claim alone is never enough, and courts scrutinize the psychiatric evidence closely.
- Detention can last longer than a criminal sentence would have — because release depends on an ongoing risk assessment rather than a fixed release date, some NCR accused remain under the Review Board's jurisdiction for many years.
- It involves ongoing psychiatric supervision and treatment, not simply being released without consequence.
- Annual hearings continue for as long as the person remains under the Board's jurisdiction, which can itself be a demanding, ongoing process.
Common Myths
Myth: “NCR means you get away with it.”
False. An NCR finding leads to a structured process focused on public safety and treatment, which can include lengthy detention — sometimes longer than an equivalent criminal sentence.
Myth: “Anyone with a mental health diagnosis can successfully claim NCR.”
False. The defence requires proof, on a balance of probabilities and supported by expert evidence, that a mental disorder produced a specific incapacity at the time of the offence — not merely that a diagnosis exists.
Myth: “NCR and unfit to stand trial are the same thing.”
False. They address entirely different points in time and different legal questions — one concerns the offence itself, the other concerns the accused's current ability to participate in their own trial.
Facing a case that may involve mental disorder issues? Call our Toronto criminal defence lawyers at 416-274-2222 for a free, confidential consultation.
Frequently Asked Questions
It means the accused person committed the act in question, but the court has found they are not criminally responsible for it because, at the time of the offence, they were suffering from a mental disorder that rendered them incapable of appreciating the nature and quality of the act, or of knowing that it was wrong. It results in a special verdict, not a conventional acquittal or conviction.
The party raising the issue bears the burden — usually the defence, though in rare cases the Crown may raise it. That party must prove, on a balance of probabilities, that the accused met the legal test under section 16 of the Criminal Code at the time of the offence.
No, these are entirely different legal questions, though both involve mental disorder. Fitness to stand trial is about the accused's current ability to understand the nature of the proceedings and communicate with their lawyer. NCR is about the accused's mental state at the time the offence was committed. A person can be fit to stand trial and still be found NCR for what happened earlier.
The person is not acquitted and not convicted. Instead, they are referred to the Ontario Review Board, which holds an initial disposition hearing and then regular annual hearings, and which can order an absolute discharge, a conditional discharge with specific conditions, or detention in a psychiatric facility, based on the person's risk to public safety balanced against their liberty interests.
Yes, in some cases. Because the length of time someone remains under Review Board jurisdiction depends on an ongoing assessment of risk to public safety rather than a fixed sentence, it is possible for detention under an NCR finding to extend longer than a comparable criminal sentence would have — this is one of the most persistent misconceptions about the defence.
Yes. An NCR defence requires genuine expert psychiatric or psychological evidence establishing the accused's mental state at the time of the offence — it cannot succeed on the accused's own claim alone. Courts require credible, professional assessment before accepting the defence.
"Insanity" was the older, informal term historically associated with this area of law. Canadian law today uses the statutory language of "not criminally responsible on account of mental disorder" under section 16 of the Criminal Code, with its own specific legal test.
Yes. If the Ontario Review Board determines the person is not a significant threat to public safety, it must order an absolute discharge, at which point they are no longer under the Board's jurisdiction. Many NCR cases do progress toward conditional or absolute discharge over time as risk decreases and treatment progresses.
In practical terms, yes — the defence focuses on the accused's mental state at the time rather than disputing that the act occurred. This is part of why it is a serious, carefully considered legal strategy rather than something raised casually.