Toronto Criminal Lawyer

What Is Mental Health Diversion?

Mental health diversion is a process within the Ontario criminal justice system that recognizes some people who come into contact with the law are dealing with mental health challenges that contributed to the behaviour that led to their charges. Rather than prosecuting these individuals through the traditional court process, diversion programs offer an alternative path that focuses on treatment, support, and accountability without the lasting consequences of a criminal conviction.

The underlying principle is straightforward: for certain individuals, treatment is more effective than punishment. If a person's mental health condition played a significant role in the conduct that led to the charge, and if they are willing to engage in treatment and address the underlying issues, diversion may allow their charges to be withdrawn once they have completed the program requirements.

Mental health diversion is available in many Ontario courthouses, including Toronto's specialized mental health courts. The availability and structure of programs can vary by location, but the general framework is consistent across the province.

Who Is Eligible for Mental Health Diversion?

Eligibility for mental health diversion depends on several factors, and not everyone who has a mental health condition will qualify. The Crown attorney has discretion over whether to approve diversion in any particular case, and the following factors are typically considered:

• Diagnosed mental health condition — The accused must have a recognized mental health condition that can be documented by a medical professional. Common qualifying conditions include major depressive disorder, bipolar disorder, schizophrenia, anxiety disorders, and post-traumatic stress disorder.
• Connection between the condition and the offence — The mental health condition must have played a meaningful role in the behaviour that led to the charge. A person with a mental health diagnosis who commits an offence entirely unrelated to their condition may not be an appropriate candidate.
• Nature of the charges — Diversion is most commonly available for less serious offences. Charges such as mischief, minor theft, minor assault, causing a disturbance, and breach of probation are common candidates. More serious offences involving significant violence or weapons are less likely to be approved for diversion, though each case is assessed individually.
• Willingness to participate — The accused must be willing to engage with treatment, attend appointments, and comply with the requirements of the diversion program.
• Criminal history — While a prior record does not automatically disqualify someone, the Crown will consider the person's history when deciding whether diversion is appropriate.
• Position of the complainant — In cases involving a victim, the Crown may consider the complainant's views on diversion, though the final decision rests with the Crown.

How the Diversion Process Works

The process for mental health diversion in Ontario generally follows these steps:

1. Identification and assessment. The possibility of diversion may be raised by the accused's lawyer, by duty counsel, by the Crown, or by court support workers. In Toronto, specialized mental health court workers are available at the courthouse to conduct assessments and connect individuals with appropriate services. A mental health professional will assess the accused to determine whether they have a qualifying condition and whether diversion is appropriate.

2. Crown approval. The Crown attorney must agree to diversion. Your defence lawyer will typically make submissions to the Crown explaining why diversion is appropriate in your case, supported by medical documentation and a proposed treatment plan. The Crown's decision is based on the public interest, the nature of the offence, and the strength of the connection between the mental health condition and the alleged conduct.

3. Development of a treatment plan. If diversion is approved, a treatment plan is developed. This may include regular appointments with a psychiatrist or therapist, participation in a treatment program, medication management, community support services, and other elements tailored to the individual's needs.

4. Compliance period. The case is adjourned for a period of time, typically several months, while the accused completes the treatment plan. During this period, the accused must comply with the plan and may need to provide updates to the court through their lawyer or a court support worker.

5. Completion and withdrawal of charges. If the accused successfully completes the diversion program, the Crown will typically withdraw the charges. This means no conviction is entered, and the person avoids the consequences of a criminal record.

Toronto's Mental Health Court

Toronto operates a dedicated mental health court at Old City Hall, which is one of the most established programs of its kind in Ontario. This court is specifically designed to handle cases involving accused persons with mental health challenges. It brings together judges, Crown attorneys, defence lawyers, and mental health professionals who have experience working with this population.

The mental health court provides a more supportive environment than a regular criminal courtroom. Cases are handled with an understanding of mental health issues, and the focus is on connecting people with appropriate treatment rather than simply processing charges through the conventional adversarial system.

If you have been charged with a criminal offence and believe your mental health was a factor, your lawyer can request that your case be transferred to the mental health court stream. This is typically done at or shortly after the first court appearance.

Benefits and Limitations of Diversion

The primary benefit of mental health diversion is clear: if you successfully complete the program, your charges are withdrawn and you avoid a criminal conviction. This protects your employment prospects, your ability to travel, and your personal reputation. Beyond the legal benefits, diversion connects people with treatment and support services that can improve their quality of life and reduce the likelihood of future contact with the criminal justice system.

However, diversion is not without limitations:

• It requires acknowledgment — While diversion does not require a formal guilty plea, the accused is generally expected to accept responsibility for the conduct that led to the charge. This can be difficult for some individuals.
• Compliance is mandatory — If you fail to comply with the treatment plan, the Crown may withdraw the diversion offer and proceed with the prosecution. Non-compliance can leave you in a worse position than you started.
• It takes time — Diversion programs typically require several months of engagement with treatment and services. While this is often shorter than the time it would take to proceed to trial, it still requires a sustained commitment.
• It is not guaranteed — The Crown has discretion, and not every case will be approved. If the Crown declines diversion, the case will proceed through the regular court process.

Getting Help

If you or someone you care about has been charged with a criminal offence in Ontario and you believe mental health was a factor, it is important to raise this issue with your lawyer as early as possible. Early identification of mental health issues allows your lawyer to begin gathering the necessary medical documentation, engage with the Crown about diversion, and ensure your case is directed to the appropriate court stream.

A Toronto criminal defence lawyer with experience in mental health diversion cases can guide you through the process, advocate for your eligibility, and help you develop a treatment plan that satisfies the Crown and the court. The goal is a resolution that addresses the underlying issues while protecting your future.

For general information about mental health and the justice system in Ontario, the Steps to Justice resource on mental health diversion provides a helpful overview.