Canadian Criminal Procedure and Practice/Mental Illness/Not Criminally Responsible

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General Principles[edit]

The defence of mental disorder is codified in section 16 of the Canadian Criminal Code which states, in part:

16. (1) No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.


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This provision only applies where the individual has a guilty verdict entered. Section 16 will have the effect of avoiding a conviction being entered and a penalty being imposed.

There are two forms of this defence. To establish a claim of mental disorder the party raising the issue must show on a balance of probabilities first that the person committed the act, that the person committing the act was:

  1. suffering from a mental disorder; and,
  2. unable to appreciate the "nature and quality" of the act, or
  3. did not know it was "wrong".[1]

Glanville Williams in Textbook of Criminal Law (2nd Ed.), at page 644 characterized the questions as 1) whether the accused "know that he was, for instance, sticking a knife in someone?"; 2) whether the accused know he was killing someone?"

The test to be applied is found in s.672.34:

Verdict of not criminally responsible on account of mental disorder
672.34 Where the jury, or the judge or provincial court judge where there is no jury, finds that an accused committed the act or made the omission that formed the basis of the offence charged, but was at the time suffering from mental disorder so as to be exempt from criminal responsibility by virtue of subsection 16(1), the jury or the judge shall render a verdict that the accused committed the act or made the omission but is not criminally responsible on account of mental disorder.


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  1. R. v. Borsch, 2007 MBCA 111

Mental Disorder[edit]

Section 2 of the Code defines Mental Disorder as a "disease of the mind".

Disease of the mind encompasses mental illnesses, disorders and mental impairments, both naturally occurring and those resulting from injury or consumption of materials.[1] A "disease of the mind" is a legal construct, regardless of its medical dimension. It is then a determination of the judge and not medical experts.[2] A finding of a disease of the mind is a question of law based on the evidence before the court.[3]

If there is a disease of the mind, it must be shown to be connected with the accused state of mind at the time of the offence. Specifically, that the disease of the mind caused the accused to be impaired. It must be a sufficiently serious disorder.[4]

Disease of the mind has been found to include:

  • some types of psychopathy (R. v. Cooper, [1980] 1 S.C.R. 1149 1979 CanLII 63; See also[5])
  • retardation (R. v. MSR 1996 Ont.Ct. (Gen Div))
  • sleep walking (R. v. Parks, 1992 SCR 871)
  1. R. v. Rabey, [1980] 2 SCR 513; R. v. Stone, [1999] 2 SCR 290 at 197; R. v. Cooper [1980] 1 S.C.R. 1149
  2. R. v. Cooper
    R. v. Simpson (1977), O.R. (2d) 129 ("The term “disease of the mind” is a legal concept, although it includes a medical component, and what is meant by the term is a question of law for the Judge")
  3. R. v. Chartest, 1990 QCCA
  4. R. v. Sullivan, 1995 BCCA
  5. R. v. Simpson 1977 OntCA; R. v. Rafuse 1981 BCCA; R. v. Kjeldsen, 1980 Alta. C.A.

"Appreciating" vs "Knowing"[edit]

The verb "appreciating" in section 16 is distinguished from "knowing" in that the appreciation requires a degree of mental analysis on the part of the accused while knowing connotes a bare awareness but not necessarily an understanding or analysis of knowledge or experience.[1]

The act of "appreciating" means "a second stage in a mental process requiring the analysis of knowledge or experience in one manner or another."[2]

The act of "knowing" means a "base awareness, the act of receiving information without more.[3]

  1. R. v. Kjeldsen, [1981] 2 S.C.R. 617 1981 CanLII 218 R. v. Barnier, [1980] 1 S.C.R. 1124 1980 CanLII 184
  2. Barnier at p.11
  3. Barnier at p.11

Nature and Quality of Act[edit]

The "nature and quality" refers to the "physical character of the act."[1] The accused is not responsible where the offence was "really not his act".[2]

  1. Schwartz v. The Queen, 1976 CanLII 165 (SCC), [1977] 1 S.C.R. 673
  2. Schwartz

Meaning of "Wrong"[edit]

The meaning of the word "wrong" was determined in the Supreme Court case of R. v. Chaulk [1990] 3 S.C.R. which held that "wrong" was restricted to "morally wrong" and not "legally wrong".

Procedure[edit]

There is a presumption that a person is "not ... suffer[ing] from a mental disorder so as to be exempt from criminal responsibility".[1]

The party raising the issue of NCR has the burden.[2] Proof must be established on the balance of probabilities.[3]

  1. s. 16(2)
  2. s. 16(3)
  3. s. 16(2)

Assessment[edit]

Every person is presumed sane (s. 16(2)) until established otherwise by the party advancing the issue (s. 16(3)). It must be proven on a balance of probabilities.

Expert evidence is almost always necessary to make a finding on an accused's sanity.[1]

Assessments can be ordered under s. 672.12 by either the court, accused, or crown. The judge cannot order an assessment where it is not requested by either side and is explicitly opposed by both.[2]

The assessment can be ordered even after a trial where there is medical evidence, oral or affidavit, that establishes grounds for an assessment.[3]

  1. R. v. Quenneville, 2010 ONCA 223 at para. 28 verdict can be drawn from facts alone
  2. R. v. Piette, 2005 BCSC 1724
  3. R. v. Brown 2006 BCSC 1581
    R v Laidley, [2001] A.J. No. 1221

Timing[edit]

The accused may raise the defence of "NCR at any time during the course of a trial, including after a finding of guilt but before a conviction is entered.[1]

The accused may lead evidence of NCR either during trial or after a verdict of guilt. However, if done after verdict, the defence cannot argue that there was no mens rea.[2]

  1. R. v. Swain [1991] 1 S.C.R. 933 1991 CanLII 104
  2. R. v. Brown,2006 BCSC 1581

Ruling NCR[edit]

Consent by an accused to be declare NCR does not require the same standard as a gulity plea under s. 606(1.1). [1]

  1. R v Quenneville 2010 ONCA 223

Consequences of NCR Finding[edit]

Effect of verdict of not criminally responsible on account of mental disorder
672.35 Where a verdict of not criminally responsible on account of mental disorder is rendered, the accused shall not be found guilty or convicted of the offence, but

(a) the accused may plead autrefois acquit in respect of any subsequent charge relating to that offence;
(b) any court may take the verdict into account in considering an application for judicial interim release or in considering what dispositions to make or sentence to impose for any other offence; and
(c) the National Parole Board or any provincial parole board may take the verdict into account in considering an application by the accused for parole or pardon in respect of any other offence.

1991, c. 43, s. 4.

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Once a finding has been made the judge shall make a decision on disposition under s. 672.45:

Hearing to be held by a court
672.45 (1) Where a verdict of not criminally responsible on account of mental disorder or unfit to stand trial is rendered in respect of an accused, the court may of its own motion, and shall on application by the accused or the prosecutor, hold a disposition hearing.

Transmittal of transcript to Review Board
(1.1) If the court does not hold a hearing under subsection (1), it shall send without delay, following the verdict, in original or copied form, any transcript of the court proceedings in respect of the accused, any other document or information related to the proceedings, and all exhibits filed with it, to the Review Board that has jurisdiction in respect of the matter, if the transcript, document, information or exhibits are in its possession.

'Disposition to be made
(2) At a disposition hearing, the court shall make a disposition in respect of the accused, if it is satisfied that it can readily do so and that a disposition should be made without delay.

1991, c. 43, s. 4; 2005, c. 22, ss. 14, 42(F).

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NCR cannot be considered where the Code requires a harsher punishment due to a previous conviction.(s. 672.36)

Case Digests[edit]