The nature of the insanity defence is ambiguous – it can mean negating mens rea or actus reus, providing an excuse, or a policy exemption, depending on the circumstances. Lamer CJ prefers treating it as an exemption from criminal liability.
Key issue is that someone who is insane cannot function as a rational, autonomous being capable of appreciating the difference between right and wrong, which is a basic presumption of the criminal law. They cannot have criminal intent. It’s like children – you cannot treat them as you would an ordinary adult criminal, their frame of reference is radically different.
The two branches of the insanity defence:
“Failure to appreciate nature or quality of act” – denial of mens rea, since they cannot understand the consequences of their action, or denial of actus reus, where it’s akin to automatism.
“Failure to understand that the act is wrong” – this functions as an excuse, rather than a negation of mens rea or actus reus.
The presumption of sanity in s. 16.4 imposes a persuasive burden on the accused – it’s basically a reverse onus provision regarding sanity. It violates the presumption of innocence (11d) since you can be insane but fail to prove it, and thus be held liable when you should otherwise be excused.
However, it’s justifiable under s. 1. Its purpose is to shift an impossible evidentiary burden off of the Crown (so the Crown doesn’t have to prove sanity beyond a reasonable doubt every time, especially with regard to an uncooperative accused). It’s rationally connected to that purpose, and it’s within a range of minimally impairing options (since a lower burden would make the defence easier to invoke). And given the importance of the objective for the functioning of the criminal justice system, and the uncertainty of our scientific knowledge about mental disorders, it’s proportionate.
The word “wrong” in the second branch of the provision means morally or legally wrong (though the two often overlap). Morally wrong means wrong in the eyes of society, not according to the accused’s idiosyncratic moral views.
If someone, due to a disease of the mind or “natural imbecility”, was rendered incapable of knowing that the act was something they ought not to do, then they should not be held criminally responsible. There has to be a causal connection between the disease and the incapacity. The appropriate source for moral standards is societal beliefs in what is wrong.
The key aim of the analysis is to excuse those who cannot morally be held responsible for their crimes. This includes those who know that something is ordinarily wrong, but right according to what they believe would be permissible according to social standards (e.g. Oommen).
Cooper v The Queen 1980 SCC
Facts: Cooper, while an outpatient at a mental hospital (having a long psychiatric history, including hallucinations and convulsions), went to a dance and met the victim. When they stepped outside for a smoke, he attempted to have sex with her, and choked her causing her death by asphyxiation.
The term “disease of the mind” is a legal term, not a medical one (though the two categories overlap), and it functions in the context of the law (including the presumption of freedom of action, etc.). The views of doctors and specialists are probative, but their conclusions cannot be determinative of legal outcomes.
There is no distinction between diseases of mental and of physical origin.
A “disease of the mind” is any illness, disorder, or abnormal condition which impairs the human mind and its functioning. It includes personality disorders. It does NOT include intoxication or transitory mental states (concussions, hysteria, etc.). Someone who commits a crime due to the operation of a disease of the mind should not be held responsible for it.
Theoretically, a mental disorder could be induced through repeated drug use, so long as at the relevant time the accused was not intoxicated.
The first branch of s. 16 uses the term “appreciate” when discussing the accused’s perception of the act – this is broader than intellectual knowledge, and includes emotional awareness of the significance of the conduct AND the accused’s understanding of the consequences of the act (e.g. if you fail to appreciate that choking someone will lead to their death, you do not appreciate its consequences). The accused must appreciate the nature of the act and its consequences at the time the offence was committed.
If the insanity defence has an air of reality, it must go to the jury in fair terms which do not effectively withdraw the defence from serious consideration.
Kjeldsen v The Queen 1981 SCC
Facts: Kjeldsen raped and killed a taxi driver, who he commissioned while he was on a day leave from a mental institution (where he was being held based on a finding of insanity for attempted murder). He claimed he should not be held liable because he was a psychopath and was thus suffering a disease of the mind.
The word “appreciating” in the first branch of s. 16 is not so broad as to require empathizing with the feelings of those affected by a crime. “Appreciating” refers to the capacity to know what you are doing (the nature and character of the physical act) and the consequences which follow – it does not require that the accused feel remorse or any other emotional reaction.
Whether psychopathy is a disease of the mind is a question for the finder of law.
R v Oommen 1994 SCC
Facts: Oommen suffered from paranoid delusions, and came to believe that he was being targeted by a local union. He believed that the victim, who was rooming with him, was commissioned by the union to kill him when they buzzed his apartment. After his apartment was buzzed, he killed the victim while she was asleep.
The issue here is that his delusions, while not depriving him of the intellectual capacity to distinguish right and wrong, did affect his belief in the permissibility of the killing under the circumstances – he believed he was justified in doing so, and that the killing was necessary.
“Knowing that the act was wrong” requires both the capacity to know right from wrong and the ability to rationally apply that knowledge to the circumstances at hand at the time the criminal act was committed. The issue is whether the accused had the capacity to rationally decide whether the act was right or wrong at the time the act was committed. If the accused realizes retrospectively that they committed a crime, that does not prevent the insanity defence from being raised if the circumstances lead to it at the time the offence was committed.
You do not raise other defences through the insanity provisions – if he’s insane, then it’s inconsistent to allege self-defence as well. Insanity is an independent condition of criminal responsibility.
S. 16 does not provide an exemption for people who rationally know that something is wrong but who do not exercise their wills to refrain from acting, though that particular impulse can shape their ability to rationally perceive the wrongness of the offence.
AUTOMATISM
Automatism is a denial of actus reus and/or mens rea. It refers to unconscious, involuntary acts – unconscious, involuntary behaviour, the state of a person who, though capable of action, is not conscious of what they are doing.
3 types:
Mental disorder/insane automatism (rules in s. 16 apply) – arises from an internal source
Non-mental disorder automatism – arises from an external source
Automatism caused by voluntary intoxication (Daviault)
Automatism has to be proven on a balance of probabilities. If it is proven, then the accused is acquitted (for non-mental disorder automatism) or is given a NCR verdict (mental disorder automatism).
Historically, only a reasonable doubt had to be raised for the defence to succeed. This was changed in Stone.
