Mental Health Diversion in Canada

By Last Updated: July 13, 2022

What is Mental Health Diversion?

Disclaimer: Mental health diversion can vary significantly by province. For location specific information, please select the location nearest you and consult the mental health diversion page. Alternatively, contact one of our dedicated criminal defence lawyers in your area.

Mental Health Diversion in CanadaIn any given year, approximately 1 in 5 Canadians will experience a mental health problem or illness.

For individuals with mental health issues who are accused of a committing a criminal offence, Mental Health Diversion can be a great way to deal with a criminal charge without ending up with a criminal record and can also be beneficial personally and professionally.

The Mental Health Diversion Program recognizes that certain instances of offending behaviour are caused by untreated or poorly treated mental health issues, combined with inadequate and often inaccessible treatment available to the average person.

Often when these issues are addressed, offending behaviour is reduced or eliminated. In these circumstances, it is far more beneficial to deal with the underlying cause of the offending behaviour, as opposed to simply punishing the offender.

The Mental Health Diversion program is a positive initiative in Canada that helps address increasing criminalization of persons with mental illnesses. The overall goal of the program is to focus on rehabilitation, rather than punishment.

That said, having a mental health concern does not automatically mean you will be eligible for the program.

Who is Eligible for Mental Health Diversion?

The diversion program is available for individuals charged with less serious offences where there is a reasonable belief that a person is suffering from a mental health disorder.

Examples of low-risk offences include:

  • Theft;
  • Fraud;
  • Mischief;
  • Assault;
  • Obstruction; and
  • Public intoxication.

Sometimes, even more serious offences like break and enterassault of a police officer, or even various forms of domestic violence can be referred to the program, but this requires unique circumstances and careful assessment by a criminal defence lawyer.

Accused persons accepted into the program most commonly suffer from:

  • Psychotic disorders (i.e. schizophrenia);
  • Mood disorders (i.e. bipolar, depression);
  • Adjustment disorders; and
  • Anxiety disorders.

Often, a client’s mental illness is made worse by a drug or alcohol addiction. If found eligible for diversion, the individual will receive community-based treatment that focuses on the specific mental health issue, life skill challenges, and substance abuse disorders that may have contributed to the offence.

How Our Team Can Help with Mental Health Diversion

A mental health disorder is a substantial disorder of thought, mood, perception, orientation, or memory.

Our role as criminal defence lawyers is to convince the Crown that our client suffers from a mental illness and would benefit from treatment instead of being prosecuted and convicted. Once the Crown gives his or her consent, health care workers complete an evaluation.

If an accused person meets the criteria for the program, we can go to court for our client and ask for a three-month adjournment while they receive treatment.

After those three months, if treatment has been completed, we will again attend court and ask that the charges be withdrawn.

What’s Next?

It is our job as criminal defence lawyers to pursue any and all defences available. If you have been charged with a criminal offence and think you may be eligible for the mental health diversion program, please contact us.

Barring unforeseen circumstances, if you retain us, are eligible, and successfully complete the mental health diversion program, your charges will be withdrawn.

Mental Health Diversion (MHD) FAQs

  1. What is mental health diversion (MHD)?
  2. How can I get mental health diversion?

For specific information regarding your case, please select the location that’s closest to you.

About The Author

Michael Oykhman

Managing Partner

Michael Oykhman is a senior lawyer and founder of Oykhman Criminal Defence, a full-service criminal law firm with central law offices across Western Canada and Ontario.

My professional experience consists of countless court appearances and thousands of successful defences and satisfied clients. Over the last 10 years, I have worked to build a law office where all the lawyers share our collective experience, resources, and passion to help people. Our team approach to legal representation is client–rather than only law–centered. We look for opportunities to add value to our clients through strategic thinking and creative solutions.

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