Defence of NCRMD (Not Criminally Responsible by Reason of Mental Disorder

1. Disease of the Mind

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  ‘Disease of the mind’ is a legal term and should be given a definition by the courts NOT medical experts (expert medical evidence is not determinative whether the accused had a disease of the mind or not)
  
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    personality disorders or psychopathic personality are capable of constituting a disease of the mind.
    

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  “disease of the mind”  affirms Simpson: it is a legal question
  
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  there is no reason to give a narrow interpretation to disease of the mind: it means any illness or abnormal condition which impairs the human mind and its functioning.
  
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  Excludes: self-induced states caused by alcohol or drugs, as well as transitory mental states such as hysteria or concussion
  
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    Justified on policy grounds: intoxication defence deals with intoxication, and automatism can deal with hysteria or concussions
    
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  Note: just because precedent recognizes a certain mental disorder doesn’t mean you can rely on it as a judge. Medical evidence changes over time, context of crime.
  
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  Have to guard against verdict of diagnosis
  

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  “disease of the mind”  a temporary psychotic state caused by voluntary consumption of alcohol or drugs does NOT constitute a disease of the mind, cannot be used as a defence under s.16
  
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    try to rebut this if there is an underlying disease, which adds in issues of compulsion or volitional impairment
    

2. Incapable of appreciating the nature and quality of the act (Cooper) OR incapable of knowing it was wrong (Chaulk)

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  “appreciate the nature and quality of the act”  may involve estimation and understanding of the consequences (imports an additional requirement) as compared to “know” which is merely being aware of the physical act  has been narrowed
  

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  “appreciate”  appreciating the physical consequences is restricted to those offences that have an essential physical element. NO need to be aware/understand the penal consequences of the actions.
  

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  “appreciate”  SCC stuck with the narrow definition of physical consequences of the act
  

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  “know it was wrong”  “wrong” is morally wrong according to the standard of society (ordinary moral standards of reasonable members of society) in the circumstances, not simply legally wrong
  

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  “wrong”  the accused possessed the general capacity to distinguish between right and wrong, but on the night of the offence he believed the killing was right and justified. APPLICATION OF NEW RULE: the accused must lack the capacity to rationally decide whether the act is right or wrong and hence make a rational choice about whether to do it or not.
  

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  “wrong”  irresistible impulse cannot be a defence (appreciate the nature but do it anyways)
  
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    could change with addiction
    
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    if this is an issue, use voluntariness as a defence
    

What happens? There is a special verdict handed down on the successful application of s.16

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  The person is an NCR accused
  
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  Historically this meant they would be automatically detained indefinitely at the pleasure of the Crown (no due process rules)
  
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  These rules were struck down in Swain: they violated s.7, 9 and were not justified
  

Parliament responds in 1992: part XX.1

s.672.54

Unless the NCR accused poses a significant threat to public safety, the accused shall be released There are three dispositions available, the decision maker is either the court, or a specialized “Review Board” Accused may be detained in custody in a hospital Accused may be released to community but subject to conditions of supervision Accused may be discharged absolutely. Decision maker must take the health of the accused and the protection of the public into account Must issue the disposition that is least onerous and restrictive on the liberty of the accused because they are not criminally responsible or blameworthy (so there are no issues of retribution or punishment)

These standards were tested
Winko v BC (Forensic Psychiatric Institute) 1999 SCC

• Held: the new regime does not violate s.17 or s.15 of the charter

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  “significant threat to the safety of the public” is not too vague, it represents fair treatment to an NCR person, balanced with public safety (key was the imposition of the least restrictive order and that it is reviewed every two months)
  
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    means: a real risk of physical/psychological harm that is serious and goes beyond trivial or annoying
    
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    doesn’t include discomfort of family members, they must actually constitute a threat
    
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    if the risk is uncertain, the accused will be released
    
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    the rationale is that an NCR accused should not be subjected to punishment, stigmatization
    

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  Mandatory review of the orders in 2 and 3 of part XX.1 must be held at least every 12 months while the orders are in effect
  
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  Regime did NOT result in automatic indefinite detention (IMPORTANT!)
  
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  Required the imposition of the least onerous or restrictive disposition
  
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  There is no compulsory treatment order (an NCR can decline medical treatment)
  
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  Decisions are subject to appeal
  
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  Summary: rejects negative stereotypes of mentally ill, rejects traditional guilt-innocence dichotomy with third option, balances fairly protecting NCR offending while also protecting society. Mentally ill rather than criminally; treatment rather than punishment
  

Reform: Bill C-14 – came into force in 2014

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  Huge public debate around NCRMD in Canada (i.e. huge outcry when people commit atrocious acts but are found NCR and thus not morally blameworthy – eg. Vincent Lee)
  
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  Changes from Winko – opposed by scholars in psychiatric community
  
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  We know what the changes are, but we don’t know how they will be interpreted.
  
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  Incredibly controversial changes
  
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  Insanity defence used to be more onerous that people usually preferred jail time; defence counsel would only use NCR in most serious cases with huge incarceration possibility (ie. Murder)
  
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  Issues: people who may not be morally blameworthy would rather take guilt over this. Do these new provisions do the same thing? Will they just send more people into our prisons than into our hospitals? Is this the best response?
  
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  change s.672.54 to some degree – designates offenders under s.672.54 if they are convicted of certain offences rather than if they are likely to reoffend
  
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  review changes every three years (not one)
  
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  changes the balance between NCR accused and public safety  is this constitutional? Does it erode the rights of the accused in favour of the public?
  
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    Are these provisions Charter compliant, given what McLachlin said in Winko?
    

Changes under Bill C-14 (CIF July 11, 2014)
	Changes	Notes
1.	Code requires (as before) that Crown prove significant harm/threat to public safety to justify detention.	- Defines significant harm: “A risk of serious physical or psychological harm to members of the public, including any victim or witness to the offence, or any person under 18, resulting in conduct that is criminal in nature but not necessarily violent.” - Arguably lowers threshold (Crown needs less to show significant harm) - Previous language included the word real (i.e. “real threat”) - How will this be interpreted? Will Court read in higher Winko standard, or adopt lower standard? - s. 672.5401
2.	Got rid of “least onerous/restrictive”; new language is necessary and appropriate in the circumstances	- No longer the idea of maximum liberty required - More discretion (= more potential for abuse?)
3.	When considering what is necessary & appropriate, public safety is the paramount consideration	- Significant shift: focus used to be more on balancing public interest w/ accused’s interest. Now, public safety is paramount - Accused’s interests, reintegration into society, etc become secondary
4.	Enhanced victim involvement – requirement of notification
5.	New designation for high risk offenders (s. 672.64) if person is NCR for serious personal injury offence and there is a substantial likelihood that they will use violence to endanger others, or the acts that constituted the offence were of such a brutal nature as to indicate a risk of grave physical or psychiatric harm	- Crown initiates this process; decided by a judge - Judge must look at all relevant evidence (nature and circumstances of offence, pattern of behaviour, current medical condition of accused, course of treatment, and expert evidence) - If found to be high risk, consequences as follows: Accused will be detained (ONLY option initially) Accused can only leave hospital for medical reasons (i.e. treatment) – must be escorted Annual disposition review (usually 12 months) may be extended to 36 months
Final notes: These amendments are very controversial. Old provisions were seen as so terrible that defence counsel would rather their clients take jail time than try an NCR defence  means people who many not be morally blameworthy are choosing a finding of guilt over this. The same issue might arise in these new provisions – are we just sending more people into our prisons than our hospitals? Is this a good response? Story of Mr. Evans – NCR – eventually held for 7 years (much longer than his jail time would have been) but was misdiagnosed. The “defence” of NCR basically became a miscarriage of justice. He would rather have been convicted than declared NCR.

What are the realities of an NCRMD designation? Usually the accused spends more time in custody than they would have spent in jail had they been convicted

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  defence counsel will only use this defence in the most serious offences because of the civil liberties concerns
  
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  Evans: accused found guilty, consented to NCR. They subsequently determined that Mr. Evans did not have schizophrenia, but psychosis from drug use (which does not support an NCRMD designation). He spent 7 years in an institution, and eventually when they vacated the finding and entered a conviction, he was released because he had already served more than the time.
  

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