MENTAL DISORDER THE DEFENCE OF MENTAL DISORDER

MENTAL DISORDER

1. THE DEFENCE OF MENTAL DISORDER

This state of affairs was challenged in the SCC's decision in R v SWAIN, which invalidated the disposition system of people with mental illness for reasons of Charter violations due to indefinite detentions, and it was not fair for the Crown to raise evidence of insanity whenever it chose. It was bold on the part of the SCC to invalidate the entire system and give Parliament 18 months to fix it.

Today, if someone is found not criminally responsible by reason of mental disorder (NCRMD), they are not acquitted or convicted of a lesser offence, but committed to a disposition for psychiatric consideration. They are periodically brought before a Mental Health Review Board (staffed by at least one psychiatrist, laypeople, and justice officials), which has 3 options:

1. 
   The A released into the community absolutely
   
2. 
   The A released into the community with conditions (getting treatment)
   
3. 
   The A can be detained in a secure psychiatric facility
   

This scheme has come under political fire recently, and the Conservative government wants to make it more restrictive, based on the idea that serious crimes are going unpunished. 3 cases media refers to: Vince Lee (greyhound killer); Guy Turcotte (killed 2 children, probably not insane); Allan Schoenborn (killed children, history of stalking and violence).

It's the judge's job to explain the law to the jury (legal definitions, burden of proof), and the jury's job to make findings of fact and apply them to the law (did the A have the symptoms, do these symptoms meet the legal definition of mental disorder).

4 ways A can be found NCRMD:

1. 
   A raises claim of NCRMD at outset of the trial (most common).
   
2. 
   A raises claim after finding of guilt, before judge formally enters a conviction (rare). Allows A to raise defences earlier in the trial without prejudicing the jury with the stigma of mental illness.
   
3. 
   Crown raises claim after finding of guilt (rare).
   
4. 
   A puts their mental state in issue (eg. A takes the stand, testifies that they were schizophrenic). Rare.
   

SWAIN created this scheme, but left the definitions in s 16 alone - Parliament amended them anyway, to the following:

 Section 16:

2. 
   No person is criminally responsible for an act/omission committed while suffering from mental disorder (defined as disease of mind in section 2 of CC) which rendered the person incapable of appreciating the nature and quality of the act/omission or knowing that it was wrong
   
3. 
   Presumption of sanity which means that mental disorder must be proven on BOP
   
4. 
   Burden of proof lies with party raising the issue
   

1. 
   The A is not acquitted, they are found not criminally responsible for their action
   
2. 
   Either the Crown or the A can invoke defence
   

(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.

Disease of the mind

[I]n a legal sense “disease of the mind” embraces any illness, disorder or abnormal condition which impairs the human mind and its functioning, excluding, however, self-induced states caused by alcohol or drugs, as well as transitory mental states such as hysteria or concussion.

R v COOPER [1980] SCC

 What about the second branch of the test? Does the A have to be ignorant of the legal wrongness of their act, or the moral wrongness, in order to establish NCRMD? In R v SCHWARTZ, SCC decides on the former, but Dickson J writes an extensive dissent arguing for the latter.