“disease of the mind” definition from Cooper excludes mental impairment caused by voluntary drug consumption
If the mental disorder is exclusively from intoxication, and not part of the inherent psychological makeup, then won’t be a “disease of the mind”
Facts: Accused unlawfully entered building, brutal assault – was in psychotic state caused by ecstasy
State of psychosis seemed to be from intoxication alone (not co-occurring mental disorder) – psychosis only came up when he took the pill, and disappeared a few hrs later
No previous psychotic episodes, no underlying disease of the mind
Held: Couldn’t rationally appreciate what he was doing, BUT was convicted nonetheless of aggravated assault & assault (general intent offences, s. 33.1, because his intoxication was self-induced & involved violence).
Important distinction: whether psychosis was just from drugs, or based on some other mental disorder simply triggered by drugs
Self-induced intoxication is not a disease of the mind. Toxic psychosis wasn’t part of his inherent psychological makeup, therefore it is not justified to exempt him from criminal liability
The accused can rebut that presumption if there is evidence that the psychosis arises from internal, psychological weakness of the accused—that will normally be difficult to prove and depends on the facts.
Thus, temporary psychosis caused by voluntary drug consumption is NOT a disease of the mind – but, Court held that outcome may have been different if there was evidence of addiction
Criticisms: Psychosis exclusively from intoxication is rare (usually latent mental disorder). There was little evidence of the accused’s psychological record.
Court addressed (albeit in obiter) concerns around co-occurrence. See below.
Intoxication and Mental Disorder: note on Co-Occurrence
It is difficult, if not impossible, to know whether a particular psychotic episode comes from substance abuse, or mental disorder, or both
Users often take a cocktail of drugs; don’t know exactly what they are taking, what the respective strengths of the substances are
Coming out of Bouchard-LeBrun, SCC addressed these clinical challenges
Court said (albeit in obiter) that with a situation of co-occurrence, i.e. potentially co-contributing substance abuse and mental disorder, courts should employ the holistic approach coming out of the Stone case (case on automatism)
1. Internal cause theory
Compare the accused with a “normal person” and determine whether a “normal person in the same circumstances” would have reacted similarly
But who is a “normal person”? What factors do we consider?
2. Continuing danger theory
Assess the likelihood of recurring danger to others
Evidence of substance dependence will have considerable weight (i.e. addiction) - may weigh in favour of finding that substance abuse should be included in s. 16
Lebel hinted at this possibility in Bouchard (i.e. evidence of addiction may have led to a different outcome – here, the accused could stop voluntarily taking drugs, but if there was a dependency issue, that could be determinative because the likelihood of recurring danger might be greater)
Could this point to an expansion of the NCRMD defence?
Up until now, people who experience psychosis from drug use, where that use – albeit voluntary – was the product of dependence, or an underlying neurological vulnerability – have until now been dealt w/ in prisons. Could they be diverted to health care system?
Possible expansive effect on “disease of the mind”
Would strain mental health resources, but would help more people
Tremendous diagnostic uncertainty/instability in cases of co-occurrence (often erroneous first diagnosis, people then dealt with improperly)
Pressure on psychiatrists to make a clear, confident definitive diagnosis to the court – this can lead to misdiagnosis and problems
But perhaps a new hoslitic approach allows for some uncertainty – recognition that it may be difficult, if not impossible, to draw line between mental disorder/addiction
We must overcome issues of evidence, institutional barriers, distaste for certain segments of the population
Obiter of LeBel in Bouchard is the path to move us forward
In a case of substance-abused psychosis, many factors must be considered; courts must take a contextual approach that strikes a fair balance between protecting public versus making sure criminal liability can only be imposed on those who can be held responsible
NB: If evidence of insanity/mental disorder falls short of s. 16 requirements, still use this evidence like an intoxication defence (i.e. acc’d lacked ability to moral blameworthiness/ability to form specific intent – convict instead of general intent offence) – can also engage with this evidence at sentencing.
Historically, defence counsel have had distaste for NCRMD (old rule re: indefinite automatic detention meant they would only plead this in the most serious circumstances)
Quotes from lawyers: NCRMD is a hotbed for abuse of civil liberties, leads to prejudicial consequences, NCRMD outcome is possibly worse than sentencing from guilt
Often, outcomes in NCRMD have been possibly worse than sentencing
Defence counsel usually loathe to recommend NCRMD, except in cases where:
Serious charges (potentially lengthy sentences)
If accused has transitory mental disorder (likely to resolve in short period)
Where therapeutic treatment in forensic psychiatric system is actually perceived to be in accused’s best interests (more so than incarceration).
However, even if counsel recommends NCRMD defence, accused may not accept it (often guarded, paranoid, may not self-identify as needing treatment)
Concern that Crown lawyers have had little appreciation for these challenges and little patience for a slower pace in prosecution for those with mental health issues
Issues around resources (experts needed to testify for NCRMD – can make the defence expensive to run). Crown counsel usually have funds for this, while often defence counsel must pay out of pocket
Unfortunate history where experts often saw themselves as advocates for the Crown
BC forensic psychiatry in a crisis state (not enough resources)
EXAM: Room for law reform here (combine with section above to suggest new way forward and ways to change attitudes/approaches to this defence).
