II. Mental illness and the Criminal Code of Canada

It is a fundamental principle of the Canadian criminal justice system that an accused must be able to understand that his/her behaviour was wrong in order to be found guilty of an offence. In other words, not only does he/she have to be able to realize that their behaviour is wrong, he/she must also appreciate that the act(s) they committed matches that behaviour. For example, a person can be so delusional that they believe their action is right or justified. If someone, because of a mental illness, does not understand what he/she did or was not aware it was wrong, he/she cannot be held criminally responsible even though they knowingly committed the act. The meaning of the word “wrong” was determined by R. v. Chaulk [1990] 3 S.C.R. which held that “wrong” was NOT restricted to “legally wrong” but to “morally wrong” (a behaviour that does not conform to normal and reasonable standards of society) as well.

According to Section 16 of the Criminal Code:

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 appreciating the nature and quality of the act or omission or of knowing that it was wrong.1

In Canada, it is important to note that only a small group of accused persons actually raise the issue of mental illness and even fewer meet the legal threshold. From 2005/6 to 2011/12 in Canada, these cases represented less than 0.09% of adult criminal court cases. There were a total of 1,908 completed cases where at least one charge received a final decision of not criminally responsible on account of mental disorder (NCRMD), while there were a total of 2,262,395 completed non-NCRMD cases.2 In cases where mental illness is raised by the accused, the accused can be found NCRMD, or unfit to stand trial (UST)3. NCRMD is where an accused is found to be incapable of understanding the wrongness of their actions. UST is where the accused is unable to understand the trial proceedings or communicate with their lawyer.4 It is important to note that a person found UST may eventually be transferred back to the criminal justice system, where he/she may go to trial, or may be found NCRMD.

While an accused found NCRMD by a court is not convicted in the usual sense, he/she is also not acquitted. Rather, the accused is found to have committed the crime but because of the mental disorder, is not responsible in the same way other offenders are.

An accused that is found NCRMD is removed from the criminal justice process and diverted to a provincial or territorial Review Board, established pursuant to section 672.38 of the Criminal Code. Review Boards are special tribunals chaired by a judge, and comprised of at least four other members, one of whom must be a licensed psychiatrist.5

The rationale for this separate process is that, while the accused is not criminally responsible for his or her behaviour, he/she may still be a risk to the public.6 The Review Board, therefore, considers both the mental health of the patient and the safety of the public.

  1. Criminal Code, R.S.C 1985, c. C-46, s. 16(1).
  2. Zoran Miladinovic and Jennifer Lukassen, “Verdicts of not criminally responsible on account of mental disorder in adult criminal courts, 2005/2006-2011/2012”, Statistics Canada. Accessed online at: http://www.statcan.gc.ca/pub/85-002-x/2014001/article/14085-eng.htm#a8.
  3. Criminal Code, R.S.C 1985, c. C-46, s. 2
  4. Latimer, Jeff. “The Review Board Systems in Canada: An Overview of Results from the Mentally Disordered Accused Data Collection Study” (Department of Justice Canada, 2006).
  5. Latimer, Jeff. “The Review Board Systems in Canada: An Overview of Results from the Mentally Disordered Accused Data Collection Study” (Department of Justice Canada, 2006).
  6. Latimer, Jeff. “The Review Board Systems in Canada: An Overview of Results from the Mentally Disordered Accused Data Collection Study” (Department of Justice Canada, 2006).

My name is Donna McCully.

It was always our wish to live in Jamaica in our dream home. So, in August 2012, my husband Sedrick Levine and I left Canada to move into our new home. We were thrilled to finally be starting the next chapter in our lives, in Sedrick’s beloved homeland. He bought a little bus and planned to operate tours for visitors to the island. I was helping him run this business venture, as part of our semi- retirement in Jamaica.

My life as I knew it was suddenly shattered when two masked men broke into our home on Sunday, November 17, 2013. Sedrick struggled with the men, allowing me to flee upstairs to call the police. His actions saved my life that day, and that of my father and his housekeeper, who were visiting us at the time. One of the masked intruders chased me upstairs and kicked in the bathroom door, but he stopped when he heard a gunshot from downstairs.

My husband Sedrick was killed that day and the men fled our home with a laptop. The Jamaican police have not yet found these men or charged them with killing my beloved husband. Their motive remains unknown.

This crime has completely changed my life. I suffer from Post-traumatic Stress Disorder now and have depression as a result. I came back to Canada, but I feel very isolated since this happened. These emotional scars may never heal.

I managed to find the Canadian Resource Centre for Victims of Crime by searching online one day. I didn’t know where to turn for help when I came home to Canada. The CRCVC has provided me with a lot of emotional support, which has been tremendously helpful. They’ve also written numerous letters to Jamaican officials seeking justice for Sedrick, as well as intervening with Canadian officials on my behalf. The office also helped connect me to a trauma therapist for counselling sessions too.

In order to try and make sense of what happened to Sedrick, it is my hope that others could support the work of the Canadian Resource Centre for Victims of Crime. There are so many other victims/survivors out there who also need their assistance.