Mental Disorder and Automatism Procedural Elements of the Mental Disorder Defence

Who can Raise the Mental Disorder Issue?

R v Swain SCC 1991 p 780 [CANNOT BE FORCED INTO NCRMD VERDICT. Crown can raise defence of insanity after trier of fact has found accused guilty and b4 offence is charged. Can also raise defence if accused, through testimony, puts his capacity for criminal intent at issue]

Issue:

Reason: Lamer CJ

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  Wrong if evidence of insanity influenced jury’s decision on issue of whether accused committed the alleged act, but discretion of TJ to refuse to allow Crown to raise insanity unless there is convincing evidence will not prevent this from happening
  
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  Ability of Crown to raise evidence of insanity over accused’s wishes, does not interfere with accused’s control over conduct of his defence
  
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  Objective of CL to allow crown to do this:
  
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    1) To avoid the conviction of an accused who may not be responsible on account of insanity, but who refuses to adduce cogent evidence that he was insane
    
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    2) The protection of public from presently dangerous persons requiring hospitalization
    
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  1^st Instance: Suggests that, to be constitutional, should be tried after accused found guilty and before offence charged. Then, the verdict of not guilty by reason of insanity would be entered. This would safeguard accused’s right to control his defence and meet above objectives
  
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  Note: but the accused can raise it any time!
  
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  2^nd instance: Crown can also raise insanity if the accused’s own defence puts his capacity for criminal intent in issue.
  

Ratio:
Note: If the crown could raise NCRMD on their own volition, it would influence the jury because they don’t want him on the streets. If the accused raises an Alibi, Crown must still prove that they did committed the Act. Cannot force the accused to claim NCR. IF you have evidence that person is mentally ill, does not mean that section 16 defence is being run.

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  False: The accused must argue NCRMD: Evidence of mental illness does not automatically mean NCRMD is the only defence in play. He can still argue no MR.
  
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  False: The Crown must convince jury the accused is NCRMD:
  
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  False: The crown no longer has to prove guilt of the act beyond a reasonable doubt; it can concentrate on NCRMD only: CROWN MUST PROVE HE COMMITTED THE AR.
  
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  TRUE: The accused can argue that he is not guilty because he lacked MR. The Accused can always argue this.
  

Burden of Proof

R v Chaulk and Morrissette SCC 1990 [presumption of sanity violates presumption of innocence, but its justified]

Facts: Majority of court held that s 16(4) of code which said: everyone shall, until the contrary is proven, be presumed to be and have to have been sane, violated s 11(d) of the Charter, but was a reasonable limit under s 1

Issue:

Decision:

Reason: (Lamer CJ) (Majority) [violates s 11(d), saved by s (1)

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  Presumption of sanity violates presumption of innocence
  
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  If accused found insane, not found guilty. So “fact” of insanity precludes guilty verdict
  
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  S 16(4) allows a factor which is essential for guilt to be presumed, rather than proven by the Crown BYD
  
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  Moreover, requires accused to disprove sanity on balance of probabilities, violates presumption of innocence bc permits conviction in spite of reasonable doubt in the mind of ToF
  
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  Objective of s 16(4) is to avoid placing an impossible BoF on crown and to thereby secure the conviction of guilty = sufficiently important to warrant limiting const. rights
  
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  There is proportionality btw the effects of the measure and the objective
  
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  Justified by s 1 because it is nearly impossible to prove sanity, let accused prove it.
  

McLachlin J (Does not violate s 11(d))

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  16(3) did not violate s 11(D) of charter
  
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  To conceive insanity narrowly violates language in s 16 of code which refers to capacity, rather than states of mind
  
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  Views s 16 as: the notion that attribution of criminal responsibility and punishment is morally and legally justifiable only for those who have the capacity to reason and thus choose right from wrong
  
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  Whether presumption of sanity offends presumption of innocence? No. S 11(d) simply another way of saying crown must prove accused’s guilt byd. Issue of sanity does not affect the prosecutions burden to prove byd guilt. Merely relieves crown from establishing that accused has capacity
  

Wilson J: Dissent: Provision violated s 11(d) and is not justified

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  Presumption of sanity and reverse onus on accused to prove insanity conflicts with s 11(d)
  
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  So, government would have to prove that it was a social problem that sane people were escaping crimes do due to tenuous insanity pleas (first requirement of oakes)  R has not shown that this has been witnessed.
  
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  Because: Wilson was a strong proponent of Charter, believe gov should fight to justify.
  

Ratio: presumption of sanity violates presumption of innocence, but its justified

Consequences of Mental Disorder as a Defence

Winko v BC (Forensic Psychiatric Institute) 1999 SCC p 785 [Part XX.1 of Code achieves goals of fair treatment of mentally ill and public safety, not unconstitutional]

Facts:

Issue: Is Part XX.1 of code unconstitutional?

Decision: New regime does not violate s 7 or s 15

Reason: Mclachlin J (+ 6)

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  Part XX.1 of code addresses mental illness
  
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  Winko submits that it violates his right to liberty, security of person and equality
  
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  J says: this protects the liberty, security of persona and equality interests of those accused who are not criminally responsible on account of mental disorder by requiring that an absolute discharge be granted unless court/review board is able to conclude that they pose significant risk to safety of public
  
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  Part XX.1 was a response to Swain (where court struck down provision for automatic, indefinite detention of NCR accused on basis that it violated s 7)
  
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    New approach achieves twin goals of fair treatment and public safety
    
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    Recognizes that mentally ill are not inherently dangerous
    
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    Treatment, not incarceration, is necessary to stabilize mental condition and reduce threat to public
    
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    Protect society on long term
    
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    Protect offender: provides opportunity for treatment, not imposing punishment
    

Mental Disorder as a Defence

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  If “defence” established, finding is NCRMD.
  
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  No prison – treatment facility where status reviewed
  
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  Once the risk of safety to the public is removed, patients free to go (sometimes with conditions).
  
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  Must have Disease of the Mind
  
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  In a Trial by Jury:
  
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    The trial judge decides if his symptoms constitute DoM
    
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    The jury decides if he actually suffers from DoM
    
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  You can get an NCRMD designation, in a situation where you didn’t know it was “legally wrong”, so mistake of law is permissible where NCRMD applies.
  

TH: Assume the NCRMD "defence" does not exist. Joe suffers from a mental disorder and kills two people. Joe explains that he did this because: (a) he thought killing people was legal; and (b) he believed the victims were demons coming to kill him and he had to defend himself. Assume this is TRUE and Joe is believed. Using conventional criminal law principles:

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  Under A) he would be convicted because it is mistake of law, and under b) he would be acquitted because it is self defence.
  

Defence of mental disorder

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.

Presumption

(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.

Burden of proof

(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.

Note: Mental disorder: defined in s 2 as disease of the mind

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  Filters out drug use, transitory states
  

R v Simpson 1977 ONCA p 788 [Disease of the Mind includes personality disorders; DoM is a question of law]

Issue: Whether the personality disorder which A suffers constitutes “disease of the mind” as legally defined?

Decision: Personality disorders are capable of constituting disease of the mind.

Reasons: Whether one has disease of mind is a question of Law  up to judge to decide. Disease of the mind is an evolving concept, with addition of medical knowledge.

Cooper v The Queen 1980 SCC p 789 [To support defence of insanity, disease must be of such intensity to render accused incapable of appreciating the nature and quality of the violent act or of knowing that it was wrong.]

Issue: What is legal definition of disease of the mind

Decision:

Reasons: (Dickson J)

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  If incapacity is caused by drugs/alcoholism or with transitory states (concussion), does not suffice for NCRMD
  
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  Should be properly resolved by the judge
  
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  Simply asking psychiatrist will lead to different results
  
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  Support for liberal legal construction  could include every physical or mental recognizable disorder
  
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  R v Rabey: if there is any evidence that A suffered disease, question of fact must be left with jury.
  
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  To support defence of insanity, disease must be of such intensity to render accused incapable of appreciating the nature and quality of the violent act or of knowing that it was wrong.
  

TH: Hypothermia, caused by extreme cold, is known to cause delusions and improper thinking. According to Dickson CJ, this is NOT sufficient to provide the basis that the accused suffered from a "disease of the mind".

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  BECAUSE: it is a transitory state, not a disease of the mind.
  

TH: Transitory states are excluded from s 16:

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  Because it make no sense to declare someone who committed a criminal act under these states NCRMD – they have no disorder to be treated. This means they would have an NCRMD on their record, AND would get out right away.
  

TH: Even though s 16 is broad: Tons of defendents cannot pleased NCRMD because it is hard to show that the accused was incapable of appreciating the nature and the quality of the act or knowing it was wrong.

Appreciating the Nature and Quality of the Act

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  Hypothetical showing Keys to s 16
  
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    Shooting a gun
    
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      Unaware of WHAT you are doing: thought you were changing channels on a tv
      
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      Have NO Understanding of the Result: did not know that shooting would result in injury, would cause them to bleed etc.
      
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      Did not know that act was legally and morally wrong: (explained later)
      

Cooper v The Queen 1980 SCC p 792 [was the accused at the very time of the offence by reasons of DoM, unable to appreciate not only the nature of the act, but the natural consequences that would flow from it]

Facts: A chokes someone to death with hands.

Reasons (Dickson J)

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  “Appreciating the nature and quality of an act or omission” make it clear that cognition is not the sole criterion. Emotional, as well as intellectual, awareness of the significance of the conduct is an issue.
  
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  Appreciate: estimation + understanding of the consequences
  
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  A may have known the nature/quality of act of choking, but difference to suggest that he was able to appreciate its nature/quality in being aware it could result in her death. A could have been capable of intending bodily harm and choking girl, but not having intended her death
  
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  Code: must appreciate factors involved in act and have mental capacity to measure and foresee consequences of violent conduct
  
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  Test:
  
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    1) Was the accused person at the very time of the offence by reason of disease of the mind, unable to appreciate not only the nature of the act but the natural consequences that would flow from it?
    

Note: This has been followed in subsequent SCC judgement

Simpson 1977 p 794 [Appreciation does not import requirement that act be accompanied by appropriate feeling about effect of act on other people]

R v Abbey SCC 1982 p 794 [A person who by reason of disease of mind does not “appreciate” the penal consequences of his actions is NOT insane within the meaning of s 16(2), must go to MR of offence]

Facts: A charged with importing cocaine and possession for purpose of trafficking, relied on defence of insanity. A agreed to buy cocaine for himself and friends in Peru, and upon cursory check by officials was caught. Psychiatrists concluded that A suffered from disease of mind known as hypomania (believes they are invincible/safe from the law), but differed as to whether he was capable of appreciating nature and quality of acts . Knew what he was doing and knew it was wrong. TJ found he was insane, and his delusions prevent him being in capacity. Appeal dismissed by BCCA.

Issue: Does it make A insane if he was incapable of appreciating penal sanction?

Decision: No, but A is insane for 2 delusions.

Reason:

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  TJ ERRED: in finding that A met defence of insanity when he could not appreciate PENAL SANCTION of action.
  
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  A appreciated that he was bringing cocaine, knew it was wrong, but believed he would not be punished if caught. He felt he was powerful or safe  impaired his judgement
  
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  He believed he had “astro-travelled” to Vancouver already, and his body was simply on plane
  
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  TJ said he was incapacitated to the degree required by tests of s 16(2)
  
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  Delusion negatives the element of crime, MR
  
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  A delusion which renders accused incapable of appreciated penal consequences, that does not go to MR
  
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  Secondly: TJ erred in giving effect to defence of “irresistible impulse”. TJ DID NOT ERR
  
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    A thought he was irrevocably committed to task
    
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    This rendered Abbey legally insane
    
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    Irresistible impulse defence may be symptom of disease of the mind which may give rise to defence of insanity. (Irresistible impulse on its own is not a defence!)
    
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  Abbey suffered from 2 delusions 1) mysterious force would protect him 2) believed himself irrevocably committed to importing cocaine = together these are enough to render him incapable of appreciating the nature and quality of his acts
  

Ratio: A person who by reason of disease of mind does not “appreciate” the penal consequences of his actions is NOT insane within the meaning of s 16(2), must go to MR of offence

Knowing that the Act is Wrong

R v Chaulk and Morrissette SCC 1990 [Accused incapable of knowing that act is Legally AND Morally wrong]

Facts: Accused get convictions of first-degree murder. A’s entered home, took valuables, stabbed/hit occupant to death. Week later, turned themselves in. Defence of insanity: expert evidence said victims suffered from psychosis, that they had the power to rule the world and killing was necessary means to that end, they knew laws existed but thought they were above ordinary law

Issue: What is the meaning of the word “wrong”

Decision: Order new trial because Schwartz is not correct

Reason: Lamer CJ (+ 5): Extends compassion to those suffering from Mental Illness!

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  TJ said wrong: is “it was a criminal act or legally wrong”
  
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  A’s submit that wrong should have been “morally” wrong. R said in serious crimes, difference btw morally and legally is so narrow – not worth defining.
  
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  Schwartz: Majority: wrong means no more than capacity to know that what one is doing is against the law of the land. (ie. Only legally wrong)
  
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  Dickson J: Dissent in Schwartz: Wrong must mean contrary to the moral standards of reasonable men and women
  
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    Would not open the floodgates, what is illegal and immoral does not often differ
    
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    Secondly, morally wrong is not from his viewpoint, but from society’s
    
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  Lamer thinks Schwartz was wrongly decided, and does not meet objectives. Had effect of expanding scope of Criminal responsibility unacceptably to include persons who, by reason of disease of mind, were incapable of knowing that an act was wrong according to normal standards of society, even though they knew it was a crime
  
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  Court must determine whether an accused was rendered incapable, by fact of his disorder, of knowing that the act committed was one he ought not to have done
  
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    SO wrong = must mean more than legally wrong, knowing it was contrary to the law
    
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    Must also know that act is morally wrong according to moral standards of society
    
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  Fact that they don’t know that it is morally wrong, even if they know it is legally wrong, will get them off.
  

McLachlin J: Dissent: NARROW!

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  Accused must just be capable of knowing that the act was in some sense “Wrong”. If the accused has this capacity, it is neither unfair nor unjust to submit the accused to CR or penal sanction
  
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  There are too many practical difficulties in determining what is morally wrong
  
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  An individual knows or is presumed to know the law, and the fact that their moral standards are at variance is not an excuse
  
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  Deficiency of moral appreciation should not render them not subject to the law
  

Supplementary reading on Andrew Goldstein [Compulsive Acts that you know are wrong and know what you are doing are criminally liable!]

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  Suffered from schizophrenia
  
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  Convicted of murder because defence of insanity in US focused on mental awareness, and did not protect against those who had mental awareness but lacked physical control; also because the jury was worried he would walk and they feared for their own safety
  
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  Scholars say: A bar against a defence involving physical control is unjust
  
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  Goldstein would have been found guilty of murder in Canada! Impossibility to resist an impulse is not a defence.
  
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  Involuntariness doesn’t apply, his action is not involuntary – he had physical control.
  

TH: People who suffer from illnesses that "compel" them to commit crimes (like Mr. Goldstein) do not fall within s. 16 because these compulsions do not affect what they are aware of when the crime is committed. What do you think is the most likely reason for this?

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  The fear that Paul Bernardo and other serial offenders might be able to show they had no choice but to commit the acts they did
  

In which of the following circumstances would the accused have the greatest difficulty in establishing an NCRMD verdict? Assume the accused is charged with murder by shooting the victim, and that in each case the wrongful belief is the product of a disease of the mind.

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  The Accused believed that the victim was his father (it wasn’t), who the accused hated
  
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    He has no right to kill his father, and he can appreciate that killing the father is morally wrong.
    

R v Oommen SCC 1994 [If mental disorder creates a delusion that makes action not wrong at time of offence, even though you generally understand Canadian law, you can claim NCR]

TJ thought that A was not entitled to NCR defence, because he knew that killing was wrong.

SCC focused not on general capacity was right from wrong, but on a particular act within the circumstances to know right from wrong.

SO: if your mental disorder, creates a situation that makes your action not WRONG

TEST FOR NCRMD: Are they responsible?

1. 
   Does the Offender have general sense of law in Canada?
   
2. 
   Do they know that it is morally wrong? (Chaulk)
   
3. 
   Are they factually situated within these spaces/world at the time of the offence, working within his delusion (Oommen)?
   

TH: In 2010, Bob killed Gina in circumstances that would normally equate with murder. In which of the following scenarios, is Bob most likely to raise NCRMD as a verdict successfully:

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  Bob suffered from schizo that caused him to have severe delusions. Before trial in 2012, he got proper medication and no longer suffers.
  

R v Landry 1988 p 810 [Example of Oomen]

Facts: A charged with first degree murder after killing friend. A had serious mental illness from schizo, believed it was necessary to kill the deceased and save world.

Decision: Quebec Court of Appeal allow appeal and substitute verdict of not guilty by reason of insanity

Reason: Landry, who knew he was killing and that it was unlawful, he was incapable of appreciating the nature and quality of his act, bc at the moment, he thought he was god and friend was Satan.

SCC: Accused suffered from disease of the mind and was rendered incapable of knowing that the act was morally wrong in the circumstances.

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