Schwartz v. R. [1977] “Wrong” in s. 16 means “contrary to the [criminal] law.”
1 S.C.R. 673
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NOTES
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Martland J. for the majority adopted an English (R. v. Windle [1952]) ruling that “wrong” in s. 16 means “contrary to law.” I.e., because of mental disorder, the accused is incapable of knowing an act is legally wrong.
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Dissent headed by Dickson J. would have preferred the Australian ruling in Stapleton v. R. (1952) which held “wrong” to mean morally wrong. This dissenting view is held as law by Lamer in the later Chaulk [1990] case.
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R. v. Oommen [1994] Focus on whether the accused was able to know that a particular act was wrong at the time of the act.
2 S.C.R. 507
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FACTS
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Accused had paranoid delusions and believed that members of a local union were conspiring to destroy him. The victim was his friend. She was visiting him at his apartment and he began to believe that she was in on the conspiracy and that she had come to kill him. He even believed that people had amassed outside his apartment building poised to kill him and that people ringing doorbells and buzzers going off to let them in were signals. He believed the victim was coming at him with a knife and therefore shot her multiple times, killing her. The trial judge rejected the insanity defence. The C.A. ordered a new trial. Crown appealed.
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ISSUES
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Did the trial judge err in rejecting the defence?
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HELD
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Yes. New trial ordered.
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RATIO
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McLachlin J.—“As the cases make clear, s. 16(1) of the Criminal Code embraces not only the intellectual ability to know right from wrong, but the capacity to apply that knowledge to the situation at hand.”
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NOTES
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The trial judge had found that the accused could not apply his general capacity to know right from wrong at the time of the killing because of his mental disorder.
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However, the trial judge ruled that since the accused had a general capacity to know right from wrong, s. 16 did not relieve him from criminal responsibility (even though he couldn’t apply that general capacity in this particular circumstance because of his mental disorder).
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Most of the cases now come under branch 2, which was not the case after Schwartz (legal wrong test) because the “legal wrong test” was so narrow and branch 1 was the only viable option. After Chaulk came along with the “moral wrong case,” branch 2 defences are more common.
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The “psychopath” or personal and deviant code of right and wrong are excluded from a branch 2 defence.
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Andrea Yeats case from Texas: woman drowned her five children in a bathtub. She then called 9-1-1 to speak to the police. She told the police that the children had not been developing correctly and that she had been considering for two years. She said their death was her punishment, not theirs, because she had failed her children. Though there was mental illness in the woman’s family, she was convicted of murder with no mental illness defence. Texas still used the old M’Naghten rules whereby “wrong” means “legally wrong.” She was held, therefore, to have appreciated the nature and quality of her actions and she knew it was legally wrong. The conviction was reversed on appeal. Forensic psychiatrist Park Dietz was a consultant to Law and Order T.V. show. He testified for the prosecution that prior to Yeats’ killing of her children, there was a show with similar facts and thereby Yeats must have known that the act was legally wrong. After the trial, this evidence was held to be false because the show had come out after the murders.
R. v. W. (J.M.) (1998), 51 B.C.L.R. (3d) 377 (C.A.)
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Two accused were high school students charged with kidnapping and hostage taking. Diagnosed with schizophrenia. In order to carry out their plans to change the social state and set up their own state, they decided to hijack a school bus and travel to Eastern Canada from B.C. and coerce the government to allocate a portion of Baffin Island to them so they could stockpile nuclear weapons and threaten the world in order to change the social order. They were surrounded by police after a short escapade and they surrendered.
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Did they know their plan was contrary to the morals of society? The important question, says the court, is not just knowing the difference between right and wrong and knowing it in particular circumstances (Oommen), but whether notwithstanding those understandings, they were able to make a rational choice between right and wrong and what their delusions said was justified.
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Held: they were capable; convictions affirmed. (There was a dissenting opinion.)
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Majority decided that their rationality was determined in the rationality of their plan. They had contingency plans based on how successful they were.
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Dissenting judge felt that their rationality in making their plan did not alter their delusions and chaotic thinking. The fact that they had planned it so carefully did not show that they were capable of thinking rationally about the particular plan. (e.g. even Oommen had the presence of mind to plan out how he killed his victim, waiting for her to be asleep.)
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Main point: Oommen seems to have changed the test to whether a person can rationally perceive right and wrong and apply it to a particular situation.
R v. Olah (1997) 33 O.R. (3rd) 385
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Accused really wanted to kill someone before he died. He suffered from schizophrenia. He killed an elderly man who lived in a trailer park when he came to a service station where one of the accused lived. He suffered from a voice-controlled hallucination and felt that they wanted to kill someone before they die.
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Under Chaulk the standard is whether the accused was able to perceive that ordinary members of society saw their act as morally wrong.
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Was the trial judge correct in saying that the test is whether the accused knew his acts were wrong according to the moral standards of society?
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Should the judge charge the jury in the language of Chaulk or the language of Oommen?
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A charge about rational perception introduces a new element, which is played out in the hijacking case.
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Main point again: Oommen seems to have changed the test to whether a person has the capacity to rationally perceive right and wrong and apply it to a particular situation. These are the instructions that go to a jury.
Volitional Test: used to determine John Hinkley’s insanity because the latter, on a cognitive level, appreciated the nature of his actions and knew they were legally/morally wrong. Hinkley tried to assassinate then-president Ronald Reagan in order to impress actress Jodie Foster, with whom he was infatuated. After public outrage, many states abolished the volitional test (a.k.a. American Legal Institute test).
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