Constitutional Limits on Criminal Law 1

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Mental Disorder

Unfit to stand trial

s. 2: … “unfit to stand trial” means unable on account of mental disorder to conduct a defence 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

…

672.22 An accused is presumed fit to stand trial unless the court is satisfied on the balance of probabilities that the accused is unfit to stand trial.
672.23(1) Where the court has reasonable grounds, at any stage of the proceedings before a verdict is rendered, to believe that the accused is unfit to stand trial, the court may direct, of its own motion or on application of the accused or the prosecutor, that the issue of fitness of the accused be tried.

(2) An accused or a prosecutor who makes an application under subsection (1) has the burden of proof that the accused is unfit to stand trial.

…

672.32(1) A verdict of unfit to stand trial shall not prevent the accused from being tried subsequently where the accused becomes fit to stand trial.

(2) The burden of proof that the accused has subsequently become fit to stand trial is on the party who asserts it, and is discharged by proof on the balance of probabilities.

The threshold of cognitive incapacity required for a person to be unfit for trial is very high – many accused persons who will ultimately be found not guilty by reason of a mental disorder are nevertheless fit to stand trial (Whittle).
A person is unfit to stand trial if, by reason of mental disorder, he or she cannot
(a) understand the nature or object of the proceedings,
(b) understand the possible consequences of the proceedings, or
(c) communicate with counsel; (CC s 2)
A person is not unfit to stand trial merely because he or she is capable of exercising analytical reasoning on order to make decisions in his or her best interest (Whittle).
Persons are presumed to be fit to stand trial. Thus, the burden of proving otherwise on the balance of probabilities lies on the accused (CC 672.22).

Defense 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.

CONSEQUNCE: Where it was successful, the defense of mental disorder leads to a verdict of not criminally responsible rather than not guilty. Historically, this meant indefinite detention. R v Swain, however, found this violated the Charter. Thus today, a verdict of not criminally responsible subjects the accused to the regime set out at CC part XX.1. A review board conducts a hearing to decide whether, the person should be kept in a secure institution, released on conditions, or unconditionally discharged. It must choose the option that is “least onerous and least restrictive to the accused”, given the need to protect society from persons who are dangerous (Winko; CC 672.54). Given the possibility for institutionalization remains, the defense of mental disorder remains a last resort for the accused.

During the trial, before the guilty or not guilty verdict, the crown may not bring evidence of mental disorder unless the accused’s own evidence puts his mental capacity into question (Swain).

This is because it is a principle of fundamental justice under s7 that the accused has the right to control his or her own defense. Allowing the crown to independently raise evidence of insanity could interfere with this right by damaging the accused’s credibility (Swain).

The accused, meanwhile, is unlikely to raise the defense at this stage again, due to the possible consequence of institutionalization. Instead, the accused will attempt to raise a reasonable doubt as to the elements of the offence, or establish some other defense.

After the accused is found guilty at trial, then the crown may raise the issue of mental capacity (Swain). It would do so, for example, because a guilty verdict might lead to only a short sentence while a verdict of not criminally responsible would lead to, if the accused is found dangerous, to institutionalization until he/she is rehabilitated.

BURDEN OF PROOF: The burden of proof lies on the party invoking mental incapacity and the standard of proof is the balance of probabilities (CC 16(3))

CC s 16(1) sets out the test for the defense of mental disorder. “No person is criminally responsible for an act committed or an omission made [1] while suffering from a mental disorder [2a] that rendered the person incapable of appreciating the nature and quality of the act or omission [2b] or of knowing that it was wrong.

[1] mental disorder –

CC s 2 defines “mental disorder” as a “disease of the mind”, which the caselaw in turn has established should be interpreted liberally to include any illness, disorder or abnormal condition which impairs the human mind and its functioning, excluding self induced states caused by alcohol or drugs, as well as transitory mental states such as hysteria or concussion (Cooper).

An accused whose mental condition at the material time can be attributed exclusively to a state of temporary self induced intoxication and who poses no threat to others is not suffering from a “mental disorder” for the purposes of s. 16 CCC. (Bouchard-Lebrun)

“Disease of the mind” is a legal term. Thus, it is a question of law within the purview of the judge to determine whether a condition constitutes a “disease of the mind.” Once the judge has made this determination, it is up to the jury to decide whether, on the balance of probabilities, whether the person suffered from this condition at the relevant time – that is, when the act was committed (Bouchard-Lebrun, Cooper, Simpson)

[2a] rendered the person incapable of appreciating the nature and quality of the act or omission

The word “appreciating” requires more than mere “knowing”. It means that the accused must be unable to perceive the consequences, impact, and results of a physical act, rather than merely to know or be aware of the physical act (Cooper)

It is unnecessary that the accused appreciate possible legal consequences of the act (e.g. penal sanctions). Rather, he must appreciate the physical consequences of the act (e.g. death) (Abbey).

Lacking remorse is not sufficient to invoke the defence (Kjeldson)

[2b] or of knowing that it was wrong

“knowing” means not only the intellectual ability to know right from wrong in the abstract sense, but rather the ability to know that a particular act was wrong in the circumstnaces (Oommen).

For example, where a delusion makes an accused believe that an otherwise immoral act is justified, the defense may be available (Oommen).

“wrong” means “morally wrong” according to the ordinary moral standards of society. It does not mean “legally wrong”. It is irrelevant whether the accused agreed with the ordinary moral standards of society. That is, if the accused knows that the act was wrong according to these standards, he will not be saved by substituting his own moral code (Chaulk).

The relevant time of knowledge is the time at which the act was committed (Oommen).

Intoxication

Self-induced intoxication

33.1 (1) It is not a defence to an offence referred to in subsection (3) that the accused, by reason of self-induced intoxication, lacked the general intent or the voluntariness required to commit the offence, where the accused departed markedly from the standard of care as described in subsection (2).
(2) For the purposes of this section, a person departs markedly from the standard of reasonable care generally recognized in Canadian society and is thereby criminally at fault where the person, while in a state of self-induced intoxication that renders the person unaware of, or incapable of consciously controlling, their behaviour, voluntarily or involuntarily interferes or threatens to interfere with the bodily integrity of another person.

Application

(3) This section applies in respect of an offence under this Act or any other Act of Parliament that includes as an element an assault or any other interference or threat of interference by a person with the bodily integrity of another person.

SUMMARY

Specific intent (like murder): No defense per se, but self-induced intoxication may be relevant.
General Intent:

E.g. breaking and entering…
IN DETAIL

For crimes of specific intent – that is, for crimes involving an ulterior motive going beyond the mere performance of the act in question (George, Bernard) – self-induced intoxication does not per se provide a defense (George, Daley).

Drunken intent is still intent. The relevant question therefore remains, even if the accused was drunk, whether the accused possessed the requisite mens rea for the commission of the offence (Daley)

Drunkenness may, however, provide relevant answer towards answering this question. That is, the finder of fact may take drunkenness into account along with other facts that shed light on the accused’s intent (Daley).

If, after taking into account the consumption of alcohol, along with other relevant facts, the finder of fact is left with reasonable doubt as to whether the accused harboured the requisite intent, it must acquit (Daley).

In particular, the finder of fact should take the accused’s drunkenness into account when considering whether to draw a “common sense inference” concerning intent. That is, while sober persons generally intend the natural and probable consequences of their actions, drunk persons may not intend these consequences, because, due to their drunkenness, they do not foresee them (Daley)

For crimes of general intent – that is, ones involving acts done to achieve an immediate end (George) – self-induced intoxication does not, at CML, provide any defense (Bernard)

Rather, for crimes of general content, even where it is impossible to draw a common sense inference due to drunkenness, the recklessness of getting drunk provides a substitute for the otherwise requisite mens rea and suffices as a guilty mind (Bernard).

CC 33.1 affirms and reifies this common law rule for general intent offences involving interference or threatened interference with the bodily integrity of another person.

Contrary to the CML rule, however, self-induced intoxication does provide a defense for (both general intent and specific intent) offences where the level of drunkenness is so extreme that the accused’s actions were not voluntary, but rather akin to insane automatism (Daviault) – and where the general intent offence is not one that involves interference or threatened interference with the bodily integrity of another person (CC s 33.1).

The burden of proving this level of drunkenness lies on the accused. This infringes CC 11(d), but the infringement is justified under s 1 because the accused is the only one who can realistically prove it (Daviault)

Extreme involuntary intoxication also provides a defense. Thus, whether the offence is one that involves interference or threatened interference with bodily integrity of another person (CC c 33.1), intoxication will only be a defense if the intoxication was involuntary.

Test for self induced intoxication (Chaulk)

Accused voluntarily consumed a substance
He knew or ought to have known it was an intoxicant
The risk of becoming intoxicated was or should have been within his contemplation.

This exception to the CML rule is required on the basis of s7 the Charter. It is a principle of fundamental justice that punishment must be proportionate to the moral blameworthiness of the offender. … I DONNO
Specific vs General Intent

Crimes of specific intent

Involve a purpose going beyond the mere performance of the act in question (Bernard); they involve an ulterior motive of furthering or achieving an illegal object. (George)

The product of preconception and deliberate steps taken towards an illegal goal. (George)

For example:

Murder – requires intent to cause bodily harm or death

Attempt, Conspiracy, Incitement

Theft – requires intent to deprive

Fraud – requires intent to deprive

Crimes of general intent

Involving acts done to achieve an immediate end. (George)

“Intentional” only in the sense that they are not done by accident. They may, however, be the product of momentary passion. (George)

For example:

Assault – merely requires intentional application of force

Manslaughter – merely requires causing death

Arson

Negligence

The underlying theory of s.33.1 rests on the concept of a substitution of one standard of fault for another (i.e. substitution of a standard of marked negligence for the element of fault in the definition of the offense).

Vaillancourt: SCC held that substitution of one standard of fault for another would be valid only if the substituted element was functionally equivalent to the required element.
There is no principle of constitutional law that general intent is a minimum requirement for criminal offenses. This raises the issue of whether s.33.1 violates ss.7 or 11(d) of the Charter.
Another problematic aspect is that s.33.1 would specifically deny the defense even if the effect of intoxication was to make the conduct of the accused involuntary. This implies the possibility of conviction not only in the absence of fault but also in the absence of actus reus.

Self-Defence

34. (1) A person is not guilty of an offence if

(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;

(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:

(a) the nature of the force or threat;

(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;

(d) whether any party to the incident used or threatened to use a weapon;

(e) the size, age, gender and physical capabilities of the parties to the incident;

(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;

(f.1) any history of interaction or communication between the parties to the incident;

(g) the nature and proportionality of the person’s response to the use or threat of force; and

(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

(3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully.

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