What to Expect when you’re NCR and What to Explain when you’re Counsel

What to Expect when you’re NCR and What to Explain when you’re Counsel[i]

Anita Szigeti and Maya Kotob[ii]

Here are the basic touch-points for the necessary discussion on these important issues:

What to Expect when you’re NCR:

Indeterminate Detention, Liberty Constraints, Long-Term Supervision

What to Explain When you’re Counsel:

Indeterminate Detention, Liberty Constraints, Long-Term Supervision 

The point is that:

Indeterminate Detention, Liberty Constraints, and Long-Term Supervision are possible, if not likely, outcomes of being found NCR or Unfit and being remanded to the jurisdiction of the Review Board. Clients need to understand all this. Counsel must explain the consequences.

Why the Need for this Short Piece on Practice Tips, Dos and Don’ts on what NCR means 

At our firm, Anita Szigeti Advocates, we specialize in representing individuals who have serious mental health issues. We do this in many different forums, including representing clients who have been found Unfit to Stand Trial (UST / unfit) or Not Criminally Responsible (NCR). Once found UST or NCR, most accused will be remanded to the jurisdiction of the Ontario Review Board, a tribunal whose role, processes and mandate are not well understood by criminal defence lawyers who represent clients at the fitness / NCR stage in the criminal courts. 

It is not uncommon for our office to get a call from a defence colleague wondering what just happened to his NCR client, who had been out on bail for many months, even years, but once found NCR, found himself detained in a secure psychiatric facility by Order of the Ontario Review Board (ORB.)

In order to provide competent legal advice to accused persons in particular facing the prospect of an NCR Verdict, or considering seeking one pursuant to section 16 of the Code, criminal defence counsel need to have a clear sense of what the client can expect. Unfit accused cannot, by definition, instruct their lawyer in relation to outcomes, including whether they seek a finding of unfitness. That in itself does not exempt the lawyer from explaining or attempting to explain to the accused person what consequences are likely to arise in the wake of the finding of unfitness. However, for our purposes here, issues particular to UST accused are out of the scope of this work. We will focus our remarks on NCR accused persons and the Verdict of NCR.