Criminal Code: S. 16
Defence of mental disorder
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.
Presumption
(2) Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection (1), until the contrary is proved on the balance of probabilities.
Burden of proof
(3) The burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal responsibility is on the party that raises the issue.
R.S., 1985, c. C-46, s. 16; R.S., 1985, c. 27 (1st Supp.), s. 185(F); 1991, c. 43, s. 2.
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No substantive change between old 16 and new 16. It cleaned up language.
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Mental illness has to be of such intensity that they meet requirements in 16.
N.D. Walker, Crime and Punishment in Britain (1968)
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Mental illnesses:
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Organic: associated with an identifiable cerebral abnormality—epilepsy, schizophrenia, depression.
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Functional: neuroses, anxiety, compulsive behaviour
R. v. Chaulk [1990] Insanity defence is available even if accused was aware that an act is legally wrong.
3 S.C.R. 1303
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FACTS
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Facts in casebook are sparse.
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ISSUES
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Is the accused entitled to mount an insanity defence even if he knew that his actions were legally “wrong”?
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HELD
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Yes.
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RATIO
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Lamer C.J.C.—It is possible that a person may be aware that it is ordinarily wrong to commit a crime but, by reason of a disease of the mind, believes that it would be “right” according to the ordinary morals of his society to commit the crime in a particular context. In this situation, the accused would be entitled to be acquitted by reason of insanity.
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NOTES
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Philosophies behind the s. 16 defence
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In this leading case, Dickson’s dissent in Schwartz is held as law.
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The second branch is not based on the presence or absence of intent to kill.
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Lamer: This is really an exemption. Branch 1 is an absence of mens rea whereas branch 2 is an exemption from criminal liability even though mens rea exists.
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McLachlin (dissenting): this is based upon the notion of criminal responsibility, upon irrationality. She saw this as a person who is blameworthy has the capacity to make a choice between right and wrong. If a person is deprived of such a capacity, that person should not be held responsible.
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McLachlin, who dissented, writes the majority judgment in Oommen after this.
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The “First Branch”: Appreciating the Nature and Quality of the Act Cooper v. R. [1980] “Disease of the mind” is a matter of legal definition and up to the jury to appreciate and determine the fact.
1 S.C.R. 1149
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FACTS
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The accused was an out-patient at a psychiatric hospital. At a church basement dance organized for the patients, he and a fellow patient went out for a pop and cigarettes. The accused attempted to have sexual intercourse with the victim, who resisted. The accused then strangled the victim and dragged her body into some bushes. The trial judge charged the jury with the defence, but did so reluctantly (and with extremely sketchy language) since an expert witness (psychiatrist) stated that the accused had no “disease of the mind”.
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ISSUES
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Did the trial judge err in her instruction to the jury on the insanity defence? Was there evidence from which a properly charged jury could conclude, on a balance of probabilities, that the appellant had a disease of the mind to an extent that rendered him incapable of appreciating the nature of and quality of the act of which he was charged or of knowing that it was wrong?
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HELD
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Yes and yes. Appeal allowed; new trial ordered.
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RATIO
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Dickson J.—1) the doctor’s assessment should not have been treated as determinative of whether the accused had a “disease of the mind.” Disease of the mind is a matter of legal definition for the judge to decide. The jury will determine the question of fact, whether the accused actually suffered from such a disease and causal connection between condition and the act.
2) The insanity question should have been put to the jury in such a way as to ensure their appreciation of the value of the evidence. Jury must determine whether accused’s appreciation of nature and quality of his act was impaired.
3) The trial judge’s language in her charge to the jury was inadequate and unfair to the accused.
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NOTES
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Intention to kill or intention to cause bodily harm that one knows will likely result in death. This is the mens rea for murder.
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Cooper defines mental disorder very broadly to include psychopathology, personality disorders.
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What constitutes “mental disorder” is up to the law to decide.
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Even if something is not recognized by science as a “disease of the mind”, it can still be considered as such by the law if the condition has an organic effect on the brain.
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“Appreciate” was substituted for “knowing” in Canadian law since 1892. This differs from M’Naghten, which is the law in England. Appreciate adds something to knowing… measuring or foreseeing the physical consequences of the act. So whereas Cooper knew he was choking the woman, he couldn’t appreciate that the act could cause death.
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He lied to the police so it indicates that he knew the act was wrong (branch 2, below), but this is not an issue in this case.
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p. 809 (9th ed.) on “disease of the mind”: any illness, disorder or abnormal condition which impairs the human mind and its functioning, excluding self-induced states caused by alcohol or drugs…
S. 16 was modernized and “disease of the mind” became “mental disorder.” However, section 2 now defines “mental disorder” as “disease of the mind”. As ridiculous as it seems, this was done to ensure that the definition on p. 809 and the jurisprudence it was based on remain good law.
Kjeldsen v. R. [1981] Psychopathy is a disease of the mind but not exempted by 16(1).
2 S.C.R. 617
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FACTS
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The accused was out on parole for a previous murder. In violation of his parole, he took a plane from BC to Saskatchewan. He took a cab into Regina. The driver was a woman. Later he called the cab company again and asked for the same driver. On this second call, he asked the driver to stop the car after which he raped her and killed her with a rock. Kjeldsen claimed to be psychotic and incapable of emotionally appreciating the significance of his act.
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ISSUES
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Can psychopathy be exempted by s. 16?
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HELD
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No.
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RATIO
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“Appreciation of the nature and quality of the act does not import a requirement that the act be accompanied by appropriate feeling about the effect of the act on other people…”
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NOTES
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P. 809 (9th ed.): “Emotional as well as intellectual awareness of the significance of the conduct is in issue.” –Dickson in Cooper. Criminal lawyers jumped on this and accused people were claiming that they did not emotionally appreciate the significance of their act.
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This door that was opened slightly, but was closed… but in Simpson, Martland J.A. closed that door and his ruling was adopted as law in this case.
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McIntyre J.—“…I do not think the exemption provided by [s. 16(1)] extends to one who has the necessary understanding of the nature, character and consequences of the act, but merely lacks appropriate feelings for the victim or lacks feelings of remorse or guilt for what he has done, even though such lack of feeling stems from ‘disease of the mind’.”
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“Appreciation of the nature and quality of the act does not import a requirement that the act be accompanied by appropriate feeling about the effect of the act on other people. … No doubt the absence of such feelings is a common characteristic of many persons who engage in repeated and serious criminal conduct.”
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R. v. Abbey [1982] Not appreciating the penal consequences of an act does not go to mens rea and does not evoke the first branch.
2 S.C.R. 24
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FACTS
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Accused arrived at Vancouver airport from Lima, Peru with 5.5 ounces of 50% pure cocaine. When the cops asked what was in there, he said “Naturally, cocaine” and he told the police about everything he did leading to his arrest. At trial, the accused raised the insanity defence. Psychiatric evidence showed he had a disease of the mind, which made him delusional in that he believed that no harm would come to him and he would not be punished. He was, however, able to appreciate the nature of his actions. The trial judge acquitted him.
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ISSUES
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Did the trial judge err in rendering judgment?
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HELD
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Yes. New trial ordered.
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RATIO
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A delusion which renders an accused incapable of appreciating that the penal sanctions attaching to the commission of the crime are applicable to him does not go to the mens rea of the offence, does not render him incapable of appreciating the nature and quality of the act, and does not bring into operation the “first arm” of the insanity defence.
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NOTES
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Abby had “hypomania” according to the expert witness. He claimed to have “astro-traveled” from Lima to Vancouver and that his body was catching up with his mind.
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