Not Criminally Responsible – Sec. 16 of the Criminal Code of Canada

October 21, 2010

Sec. 16 of the Criminal Code reads as follows:

1. Defense of mental disorder – 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.

2. Presumption – 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. Burden of Proof – 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.

In 1992, Bill C-30 came into force which reformed (at least partially) the law at it relates to the defence of “not criminally responsible on account of mental disorder”. The underlying premise of the Bill was to modernize the psychiatric terminology used in the old bill, and to reform the powers of the Mental Health Review Board in deciding how long the accused should be detained. This, in effect, amounted to indeterminate detention times at the discretion of mental health authorities. Under this Bill, the authority to detain was transferred to the Provincial Review Boards who were subject to new capping provisions (such as life for 1st degree murder, etc…). However, the capping provisions are yet to be proclaimed (meaning, brought into effect), and thus, the old regime of indeterminate sentences still prevails. Additionally, the Bill emphasizes that “every person is presumed not to suffer from a mental disorder, until the contrary is proved on the balance of probabilities” – which is commonly known as the civil standard of proof, as opposed to the criminal standard of beyond a reasonable doubt. Therefore, the burden of proof is on the party who raises the issue. In the case of R v. Chaulk, the presumption of sanity was held to be constitutional, in spite of the fact that the evidentiary burden shifts to the defence. Where the defence was not raised during the course of the trial, or was rejected, the trial judge only has normal sentencing options available to him. In other words, he has no power to order psychiatric treatment in a prison facility.

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In the case of Cooper v. R, one of the leading cases on the NCR defense, the following legal issues were resolved by the Supreme Court of Canada: In Cooper, the Court considered the meaning to be given to the phrase “disease of the mind”, and the interpretation to be given to the words “incapable of appreciating the nature and quality of an act”.

The Court found that the term “disease of the mind” was a legal concept, to be determined by the trier of fact (judge or jury), and not a medical term. It is the function of the psychiatrist to describe the accused’s mental condition and how it is considered from a medical point of view, but it is for the judge to decide whether the condition described constitutes a “disease of the mind”. As a general guide, “disease of the mind” means any illness, disorder or abnormal condition which impairs the human mind and its functioning (excluding self-induced states caused by alcohol or drugs). The disease must manifest itself with such intensity as to render the accused incapable of appreciating the nature and quality of the offence or of knowing that it is wrong. Once the judge has determined that there is any evidence that the accused did suffer from such a disease (in legal terms), the question of fact as to whether section 16 has been established (on the balance of probabilities) must be left with the jury. The jury must determine whether the accused was suffering from a disease of the mind at the time the criminal act was committed. They jury must also be satisfied that at the relevant time, either the accused was incapable of appreciating the nature and quality of the act, or that he did not know the act was wrong.

In regards to the second issue, a fundamental difference arises between “knowing” the nature and quality of the act, and “appreciating” the nature and quality of the act. The former denotes only an awareness of the physical act, while the latter requires a level of understanding of the act which is more than mere knowledge that it’s taking place. In other words, there must be an appreciation of the factors involved in the act and a mental capacity to measure and foresee the consequences of the conduct. This formulation is unique to Canada. In refining this issue somewhat, the Supreme Court in R v. Abbey held that the requirement that the accused be able to perceive the consequences of a physical act is a restatement, specific to the defense of insanity, of the principle of mens rea, or intention as to the consequences of an act, as a required element in the commission of a crime. In other words, the accused who suffers from a disease of the mind which renders him unable to appreciate the nature and quality of his act cannot be said to have the requisite mens rea (or guilty mind) for the underlying offence.

Prior to the Supreme Court of Canada decision in Chaulk, the word “wrong”, as it appears in sec. 16(1), had been interpreted to mean “legally” wrong. In Chaulk, the Court reconsidered its earlier position and decided that the term means “morally” wrong. The Court was of the view that the term should allow for an accused person who believed his actions were morally justifiable under the circumstances, but did know that they were illegal. The Court justified its position by stating that a person may well be aware that an act is contrary to law, but by some reason of “natural imbecility” or disease of the mind, is at the same time incapable of knowing that the act is morally wrong in the circumstances according to the moral standards of society. As an example, the Court considered the example of an individual who kills in the belief that it is in response to a divine order, and therefore, not morally wrong.

One should remember that a successful “insanity defence” does not result in an individual being freed immediately. An individual who is found “not criminally responsible” will be the subject of Review Board hearings where their mental health status is reviewed on an ongoing basis to determine the seriousness of the threat that they constitute to the public if released.

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