S. 13: No person shall be convicted of an offence in respect of an act or omission on his part while that person was under the age of twelve years. (Irrebuttable assumption).
After the person reaches the age of 12 there is a presumption of sanity under s. 16(4) unless proven otherwise on a balance of probabilities.
Under the common law, a child under the age of 7 was irrebuttably incapable of possessing criminal intent. Those between 7-14 were presumed incapable unless established otherwise. After 14 there existed a rebuttable assumption of capacity.
Three time periods:
0-11: no criminal responsibility
12-17: responsible, but YCJA (Youth Criminal Justice Act)
18+: adult; CC; presumption of capacity;
Everyone above age 12 is presumed to be fit to stand trial (CC 672.22) unless the court is satisfied on a balance of probabilities that the accused is unfit; burden of proof relies on the party raising the issue; cc 672.23
Two types of “unfitness;”
A) unfit, by reason of mental disorder.
B) unfit, not by reason of mental disorder.
Each accused has a right to a fair trial, to make full answer and defense, to instruct counsel, to participate in trial, and to understand the proceedings against him.
R v Roy: accused was deaf and had not been taught to communicate or speak sign language; he could not read or write; he did not have a mental disorder; he could understand the charges, could communicate his innocence, understood right and wrong, understood that the court may take away his liberty, but his rights can’t be communicated, proceedings can’t be communicated in real time, and had a limited ability to communicate with counsel thus jeopardizing the fairness of the trial; proceedings stayed; “We cannot try Mr. Roy because he has never been taught to communicate with us. That is a social failure. Today, society is paying a price for it.”
R v Jewitt: the judicial remedy of staying proceedings should only be exercised by a trial court in the clearest of cases;
Charter s 14: A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter;
Charter s. 11(b): Any person charged with an offence has the right to be tried within a reasonable time.
Unfit to stand trial by reason of mental disorder: CC 2: “unfit to stand trial” means unable on account of mental disorder to conduct a defense at any stage of the proceedings before a verdict is rendered or to instruct counsel to do so, and, in particular, unable on account of mental disorder to a) understand the nature or object of the proceedings, b) understand the possible consequences of the proceedings, or c) communicate with counsel.
Mental disorder: a disease of the mind; a legal concept informed by expert evidence; excluded self-induced states; excludes transitory states (e.x. concussion);
An accused does not need to be competent or fit for an appeal court to hear their case;
The accused, the Crown or the Judge may initiate the application;
Crown cannot raise the defense of insanity (until after finding of guilt) – R v Swain
Judge may order an assessment of A;
Judge may postpone fitness hearing (if there’s no case for A to meet, A may be acquitted) CC 672.25
Fitness is decided by the trier of fact; CC 672.26
If an accused is found to be unfit:
Trial proceedings temporarily terminate.
The judge may order A to receive treatment (CC 672.58) for up to 60 days.
The accused undergoes a disposition hearing by either the court or a review board;
Factors relevant in a disposition hearing: the need to protect the public from dangerous person, the mental condition of A, the reintegration of A into the society, and A’s other needs.
Disposition Outcomes:
Find that A is fit – A goes back to trial;
Discharge on conditions; (672.54b)
Detention in hospitals, on conditions; (672.54c)
Stay – under new CC 672.851
No absolute discharge, because A hasn’t been convicted of an offence.
After the Disposition: ongoing review by review board every year; every two years crown must show that a prima facie case exists against A; if the Crown is unable to do so, A must be acquitted.
Overbreadth - The continued subjection of an unfit accused to the criminal process, where there is clear evidence that capacity will never be recovered and there is no evidence of a significant threat to public safety, makes the law overbroad because the means chosen are not the least restrictive of the unfit person’s liberty and are not necessary to achieve the state objective;
Particular concerns:
Review board lacked authority to order psychiatric evaluations; now CORRECTED under the new s. 672.81
The court lacked the authority to order a psychiatric evaluation for the purposes of the mandatory review under s. 672.81; now corrected under the new s. 672.851 (does not only grant the court the power to order an assessment but also creates a new procedure for a stay of proceedings respecting an unfit person)
The existence of prosecutorial discretion to withdraw charges is NOT adequate constitutional protection;
R v Morrissey: accused shot the victim in the head and then shot himself in the head incurring a severe brain injury; he could not recall events from about 45 minutes before the injury up to and including the time of the injury; suffered amnesia; amnesia or memory problems are common in 30-50% of serious violent crimes because of psychological or physical trauma; it is difficult to disprove this amnesia;
CC 2: “unfit to stand trial” means unable on account of mental disorder to conduct a defense at any stage of the proceedings before a verdict is rendered or to instruct counsel to do so, and, in particular, unable on account of mental disorder to a) understand the nature or object of the proceedings, b) understand the possible consequences of the proceedings, or c) communicate with counsel.
R v Taylor: to be found fit for trial, an accused must satisfy a “limited cognitive capacity test.” It requires only a relatively rudimentary understanding of the judicial process – sufficient, essentially, to enable the accused to conduct a defense and to instruct counsel in that regard.
R v Whittle: The “limited cognitive capacity test” was accepted by the SCC.
The test for fitness is a limited cognitive capacity: requires only rudimentary understanding of judicial process sufficient to conduct defense and instruct counsel.
He is entitled to a fair hearing, not the most favorable hearing possibly imagined (Lyons).
An inability to recount the fact immediately connected with the event giving rise to the charges is NOT the same as an inability to communicate with counsel in a way that permits an accused to eek and receive effective legal advice.
Amnesia, on the authorities, is NOT a basis for finding lack of fitness (does not include self-induced or transitory states).
His oral and verbal skills are adequate, although he is in the low average range for general intelligence. His capacity to understand language and express himself is relatively unimpaired. He is capable of following basic trial procedures.
Found Morrissey was fit to stand trial. Test for capacity is very low.
R v Steele: the common-law test for determining whether an accused is capable of conducting his or her defense. An accused in INCAPABLE of conducting the defense within the meaning of s. 615 of the Code if he or she:
A) cannot distinguish between available pleas;
B) does not understand the nature or purpose of the proceedings, including the respective roles of the judge, jury or counsel;
C) does not understand the personal import of the proceedings;
D) is unable to communicate with counsel, converse with counsel rationally or make critical decisions on counsel’s advice;
E) is unable to take the stand if necessary.
R v Rose: the SCC described two aspects of the s. 7 right to make full answer and defense:
1) the right of the accused to have before him or her the full ‘case to meet’ before answering the Crown’s case by adducing defense evidence; and
2) the right of an accused person to defend himself or herself against all of the state’s efforts to achieve conviction.
The appellant had the opportunity to defend himself against all of the Crown’s efforts. There is no violation of the appellant’s s. 7 right to make full answer and defense.
There are strong policy reasons for concluding that a claim of memory loss respecting the critical events in question ought not to provide a foundation for a stay of proceedings – regardless of the cause of that disability.
Appeal dismissed.
Capacity for Criminal Responsibility: Mental Disorder
In cases of severe mental disorder there may be a lack of capacity. There is a need for an exemption, rather than a defense.
NCR (Not criminally responsible): neither a conviction nor an acquittal; they are diverted into a special stream of the legal system; a disposition is held where a number of outcomes are considered: detention in AB hospital to absolute discharge;
there also may be a discretionary review if the situation changes
primary goal is to protect the public
Capacity for Criminal Responsibility: Mental Disorder
Three alternative verdicts are available for mentally disordered accused’s:
1) Conviction – the mental disorder is not sufficiently severe and the accused receives no special treatment.
2) Acquittal – the accused cannot form the intent required for a conviction.
3) “Not Criminally Responsible on Account of Mental Disorder” – the accused is diverted into a special procedural stream.
If found NCR, the appropriate disposition is fashioned by a review board:
Detention in a secure facility;
Release into the community on condition; or
Absolute discharge.
Note: the board imposes the least onerous disposition warranted in the circumstances.
This serves two goals:
Protection of the public; and
Fair treatment of mentally disordered accused’s.
CC s. 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. (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. (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.
Begins with the assumption of sanity until the contrary is proven on a balance of probabilities.
The burden of proof is on the party raising the issue (ordinarily the accused).
The Crown is entitled to raise the issue of mental disorder:
After a finding of guilt but before conviction;
If A puts his mental condition in issue (e.g. raises non-insane automatism)
Does s. 16 raise a 11(d) issue? Whenever you see a presumption think of 11(d). The presumption frees the Crown from the burden of proving sanity. There is a slight s. 11(d) limitation. Is it justified under s.1? Use the Oakes test. Pressing and substantial objective? Yes. Too easy for someone to raise a reasonable doubt about their sanity. Rational connection? Yes. Minimal impairment? Do not want to make the defense too easy or too readily available.
Mental Disorder Exemption: The Elements:
A) Relevant time;
B) Mental disorder under s. 2 - caused by a “disease of the mind.”
C) Re: “disease of the mind:”
NOT a transient mental state (e.x. intoxication, emotion, etc.)
Includes any illness or disorder that impairs the functioning of the mind (e.x. organic or psychological)
Whether a condition counts as a “disease of the mind” is a question of law.
A disease of the mind should be found if the accused poses a continuing danger.
D) Incapacity: the disease of the mind must not merely impair the accused’s facilities; he or she must be INCAPABLE of performing the relevant mental operations.
E) Incapable of appreciating the nature and quality of his or her act or omission.
Not merely incapable of knowing but incapable of understanding consequences.
Not established if the accused simply lacks normal emotions.
R v Demers: The accused, who is moderately intellectually handicapped, was declared unfit to stand trial on charges of sexual assault. He remained in hospital until he was discharged, subject to conditions, three months later by a Review Board acting under ss. 672.47 and 672.54 of the Criminal Code. The result of the combined operation of ss. 672.33, 672.54 and 672.81(1) is that an accused found unfit to stand trial remains in the "system" established under Part XX.1 of the Code until either he becomes fit to stand trial or the Crown fails to establish a prima facie case against him. An absolute discharge is not available. People like the accused who are permanently unfit and could never stand trial are subject to indefinite appearances before the Review Board and to the exercise of its powers. The Quebec Superior Court refused to grant the accused a stay of proceedings and upheld the constitutionality of s. 672.54. In this Court, the accused challenged the constitutional validity of ss. 672.33, 672.54 and 672.81(1) of the Code under the Constitution Act, 1867's division of powers and the Canadian Charter of Rights and Freedoms. The appeal should be allowed. The impugned provisions are unconstitutional.
S. 7 Breach because they were subjected to infinite appearances before a review panel and it requires the state to treat unfit accuseds as offenders.
Could not be saved under s. 1 of the Charter.
The review board was to conduct a hearing every year and was not allowed to grant absolute or unconditional discharges.
Every two years the Crown must show that there still exists a prima facie case.
The accused remains in the system until found fit to stand trial or the crown can no longer establish a prima facie case.
It is constitutional for the criminal law to retain power over the accused because they have not yet been tried.
The provisions are overbroad because they require the court or the review board to restrain the liberty of an unfit accused even in the nascence of a conclusion that he or she represents a significant threat to the safety of the public; this is not the least restrictive option and is not necessary to achieving the state’s objective.
R v Heywood: “overbroad legislation which infringes s. 7 of the Charter would appear to be incapable of passing the minimal impairment branch of the Oakes test.”
Review board is also unable to order psychiatric evaluations resulting in unfair treatment.
S. 672.81 does not explicitly grant the court the power to order assessments either.
The court cannot rely on prosecutorial discretion to withdraw charges.
Ordered a suspended declaration of invalidity. Reading in and reading down are not appropriate here because the breach is too great and needs to left to the legislatures.
Will also allow the courts to give an absolute discharge following the recommendation of the review board.
If parliament does not amend the legislation within one year then accused who do not pose a significant threat to the safety of the public can ask for a stay of proceedings under s. 24(1) of the Charter.
R v O’Connor: a stay of proceedings is a “drastic” remedy and is therefore reserved for the cases where a high threshold is met:
1. The prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and
2.No other remedy is reasonably capable of removing that prejudice.
Nature of the NCR Defense:
R v Bouchard-Lebrun:noted that 1) incapacity must result from a disease of the mind and 2) characterizing a mental condition as a mental disorder is a legal exercise;
Winko v BC: The purpose of the new Part XX.1 is to replace the common law regime for treatment of the mentally ill with a new approach emphasizing individualized assessment and the provisions of opportunities for appropriate treatment. The NCR accused is neither convicted nor acquitted.
A “disease of the mind” includes “any illness, disorder or abnormal condition which impairs the human mind and its functioning.” It has a very broad definition embracing “mental disorders of organic and functional origin, whether curable or incurable, temporary or not, recurring or non-recurring.”
Medical expertise plays a role in the determination of whether a condition is a mental disorder but it is not definitive.
R v Chaulk:the appellants were convicted of murder; the COA dismissed their appeal; SCC allowed their appeal and ordered a new trial;
How the Defense of Insanity Manifests in Criminal Law (R v Chaulk):
S. 16 tells us that a finding of insanity will preclude a conviction, but it does not tell us whether it negates mens rea, provides an excuse or justification or whether it simply exempts an accused from conviction on policy grounds;
A claim of insanity could give rise to denial of the acus reus (e.x. insane automatism)
A claim of insanity could give rise to negation of mens rea (e.x. the accused did not intend to bring about the consequence)
A finding of insanity could confirm the actus reus and mens rea but the accused did so because their mental state made them honestly believe they had no other choice (delusions).
The M’Naghten rules on insanity note that the defense would be available to someone who, because of a “defect of reason” resulting from “disease of the mind,” did not know the “nature and quality of the act he was doing; or if he did know it… he did not know what he was doing was wrong.”
Either way the claim is that the accused does not fit within the normal assumptions of our criminal law model because he does not have the capacity for criminal intent.
The first branch [16(2)] deals with a denial of mens rea.
The second branch [16(3)] deals with a denial that the accused had the ability to distinguish between right and wrong.
The Constitutionality of The Burden of Proving Mental Disorder (R v Chaulk):
Is 16(4) of the Code, the presumption of sanity,inconsistent with s. 11(d) of the Charter?
Note: evidence towards insanity cannot be used to raise a reasonable doubt as to the mens rea of an offence. MUST BE PROVEN ON A BOP.
Whyte established it does violate the Charter. Next step is Oakes test under s. 1.
Parliament wanted to avoid giving the Crown the impossible burden of disproving insanity and allowing many people who are not insane off of their charges.
Rational connection? Yes. Provide a working criminal justice system.
Minimal impairment? Yes, any less intrusive means would not achieve the objective.
Proportionality? Yes, meets three objectives: avoiding an impossible burden on the Crown, convicting the guilty, and acquitting those who truly lack the capacity to commit a crime.
Cooper v The Queen:Cooper was convicted of non-capital murder; COA dismissed appeal; SCC allowed appeal. The judge erred in fully instructing the jury on the issue of insanity. The trial judge erred:
In treating Dr. Sim’s reply to the judge’s isolated question as determinative of the issue
In failing to adequately review the evidence bearing upon the insanity issue and failing to relate the evidence of the accused’s capacity to intend certain acts to the issue of insanity.
In concluding this portion of the charge in language which to all intents withdrew from the jury the essential determination of the fact which it was its province to decide.
Kjeldsen v The Queen:charged with first-degree murder at trial; changed to second-degree murder at the COA; the appellant killed a woman cab driver after he solicited her services to drive him from Calgary to Banff; he raped her and killed her and fled to Vancouver; the accused had a long history of mental health and legal issues including prior charges of rape;
To be capable of “appreciating” the nature and quality of his acts, an accused person must have the capacity to know what he is doing – to know that he was hitting the woman on the head with a rock with great force and have the capacity to estimate and to understand the physical consequences which would flow from his act –that he was causing physical injury that could result in death.
If he had an appreciative awareness of striking with a stone that it might cause death or injury, that has brought us within the meaning of this section, regardless of what his emotional attributes might be or regardless of what the emotional effect would be on the victim, one does not say that changes the physical nature of the act one bit.
The Meaning of “Wrong” in s. 16(2): (R v Chaulk):
Dickinson noted in Schwartz is ambiguous and capable of meaning either “legally” or “morally” wrong.
It is not to be judged by the accused’s subjective standard but by an awareness that society conceives it as wrong OR that the accused knew it was against the law and something he should not do. Either suffices.
Now, the insanity defense should not be made unavailable simply on the basis that an accused knows that an act is contrary to the law and that he knows he should not commit a crime. It is possible that a person may be aware that it is ordinarily a crime but believes that it would be right according to society to commit it in this context.
R v Oomen (1994, SCC- pg 455): V had been living with A. A suffered from paranoid delusional psychosis. A believed he was the victim of conspiracies. At the time of the killing, A believed that members of a local union were bent on destroying him. A fixated on the notion that V was part of a conspiracy to kill him. A thought his apartment was surrounded. The buzzer’s in A apartment building were sounded (appears it was a third party prank). A interpreted this as a signal he was going to be killed. A shot V while she was sleeping.
A had the intellectual capacity to distinguish right and wrong generally.
A would know that killing a person is wrong generally.
BUT A’s delusions would affect his interpretation of events so that he would believe that killing a particular individual was justified.
Note: trial by judge alone – normally trial by jury but the Crown has the right to waive this requirement.
The accused must be able to apply the knowledge of right and wrong in the circumstances of the case.
There is no requirement that your delusions have caused A to believe facts that, if true, would support a legal defense.
Consequences of Verdict of NCR:
Disposition Hearing: Court or Review Board 45 days after verdict;
Nature of hearing: Not adversarial, Inquisitorial, No allocation or burden of proof, Parties may be added.
Disposition Factors: protection of public, A’s mental condition, A’s reintegration into society, as well as any of A’s other needs.
Disposition Options: absolute discharge, discharge on conditions, detention in hospital.
Must choose the least onerous disposition justified in the circumstances.
12 month review by review board plus discretionary reviews if needed.
Issues:
No presumption of dangerousness
If NCR ceases to be a threat, A must receive an absolute discharge.
Job of review board is to get the requisite evidence.
Dangerousness is established through evidence (probability of acts and magnitude of threatened acts must be significant and the conduct threatened would be criminal if accused were not NCR.
Evidence relevant to dangerousness:
Accuseds medical history prior to and subsequent to offence
The offence itself,
The accuseds plans,
Availability of support services in the community, and
