Mental Health Diversion in Canada

What is Mental Health Diversion?

In 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.

However, because eligibility for mental health diversion is determined on a case-by-case basis, it is possible that in some unique circumstances, an offender will be found eligible for the program even when they have been charged with more serious offences like break and enter, assault of a police officer, or even various forms of domestic violence can be referred to the program.

That said, eligibility for MHD will always be denied for the most serious offences like murder, manslaughter, or criminal negligence causing death.

Further, anyone charged with domestic assault will be precluded from admission to the program, no matter how minor the assault was. Admission to the program can also be denied if it is found that there were aggravating factors present when the offence was committed. Aggravating factors that may bar admission to MHD include things like the use of firearms in the commission of the offence, significant planning and deliberation or sophistication in the execution of the offence, significant and adverse effects or losses suffered by the victim, or the use of persons under the age of 18 in the commission of the offence.

The personal circumstances of the offender will also have a significant bearing on whether an accused will be found to be eligible for mental health diversion. Specifically, things such as an offender’s mental health history and past criminal record will be considered when deciding whether the offender should be admitted to the program. If an individual’s personal history suggests that they are a very high risk for re-offending or they have a history of failed diversion and failed treatments, it is unlikely that they will be accepted to the program. For an offender to be accepted into mental health diversion, they generally need to be able to show that they have the motivation to change their lifestyle, a willingness to accept responsibility for the offence, and a willingness to complete the program and any treatments that have been designed for them.

Types of Mental Health Exceptionalities Accepted into the Program

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.