What is mental health diversion (MHD)?

By Last Updated: March 16, 2022

scrabble pieces spelling the words The mental health diversion program (MHD) is a pre-trial diversion mechanism available to those who have been charged with a minor offence and who are suffering from a mental illness. Mental health diversion will allow an accused to avoid a criminal record by completing a rehabilitative program designed to assist with his or her mental illness. Once the offender has successfully completed the program, the charges against them will be withdrawn.

Typically mental health diversion will be offered in instances where the Crown Prosecutor recognizes that the accused likely suffers from a mental health illness, and that the accused’s charges would be more effectively dealt with through MHD rather than by prosecuting them in court.

Eligibility for Mental Health Diversion

Eligibility for mental health diversion is determined by the Crown Prosecutor on a case by case basis largely with a view to:

  • The safety of the individual and the safety of the community;
  • The nature of the offence; and,
  • The circumstances of the individual.

When evaluating an offender’s eligibility for mental health diversion, the Crown’s primary focus will be on deciding whether diversion is a truly safe option for the community, and whether it is a safe option for the offender.  If the offender’s actions suggest that they may pose a continued threat to themselves or to the community if they are diverted, they will not be accepted into the program.

The nature of the offence also plays a significant role in determining an offender’s eligibility for the program. Generally speaking, mental health diversion is intended for those who have been charged with low-risk, minor summary conviction offences. This typically includes offences like:

  • Theft, fraud, mischief, or possession of stolen property under $5000.00;
  • Minor assaults, excluding all domestic assaults;
  • Causing a disturbance; or,
  • Joyriding.

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 a more serious offence. In some unique circumstances a person who has been charged with serious offences like property offences over $5000.00, assault with a weapon, or minor assaults of a peace officer,  may still be found eligible for the program despite the more serious nature of the offence.

However, 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, not 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 motivation to change their lifestyle, a willingness to accept responsibility for the offence, and a willingness to complete the the program and any treatments that have been designed for them.

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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