Not Criminally Responsible Due to Mental Disorder

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2021. (Rev. # 95344)

General Principles

See also: Fitness to Stand Trial

The defence of mental disorder is codified in section 16 of the Canadian Criminal Code which states, in part:

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.
[omitted (2) and (3)]
R.S., 1985, c. C-46, s. 16; R.S., 1985, c. 27 (1st Supp.), s. 185(F); 1991, c. 43, s. 2.

– CCC (CanLII), (DOJ)

Note up: 16(1)

This section recognizes the principle of law that a person who suffers from a mental disorder which renders him incapable of making rational or autonomous choices should not be held criminally responsible.[1]

This provision only applies where the individual has a guilty verdict entered. Section 16 will have the effect of avoiding a conviction being entered and a penalty being imposed.

There are two forms of this defence. To establish a claim of mental disorder the party raising the issue must show on a balance of probabilities first that the person committed the act, that the person committing the act was:

  1. suffering from a mental disorder; and,
  2. unable to appreciate the "nature and quality" of the act, or
  3. did not know it was "wrong."[2]

Glanville Williams in Textbook of Criminal Law (2nd Ed.), at p. 644 characterized the questions as 1) whether the accused "know that he was, for instance, sticking a knife in someone?"; 2) whether the accused know he was killing someone?"

The inquiry under s. 16(1) is whether "the accused lacks the capacity to rationally decide whether the act is right or wrong and hence to make rational choice about whether to do it or not."[3]

Delusions that "make the accused perceive an act which is wrong as right or justifiable" can remove the ability to make rational choices and engage s. 16(1).[4] However, not all offences committed while in a state of delusion will trigger s. 16(1).[5]

The test to be applied is found in s.672.34:

Verdict of not criminally responsible on account of mental disorder

672.34 Where the jury, or the judge or provincial court judge where there is no jury, finds that an accused committed the act or made the omission that formed the basis of the offence charged, but was at the time suffering from mental disorder so as to be exempt from criminal responsibility by virtue of subsection 16(1) [defence of mental disorder], the jury or the judge shall render a verdict that the accused committed the act or made the omission but is not criminally responsible on account of mental disorder.

1991, c. 43, s. 4.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 672.34

  1. ↑ R v Ejigu, 2016 BCSC 2278 (CanLII), per Davies J, at para 333 (“The provisions recognize the fundamental principles of law that a person who suffers from a mental illness which renders them incapable of making a rational and autonomous choice should not be held to be criminally responsible.“)
    R v Chaulk, 1990 CanLII 34 (SCC), [1990] 3 SCR 1303, per Lamer CJ
    R v Swain, 1991 CanLII 104 (SCC), [1991] 1 SCR 933, per Lamer CJ
    R v Oommen, 1994 CanLII 101 (SCC), [1994] 2 SCR 507, per McLachlin J
  2. ↑ R v Borsch, 2007 MBCA 111 (CanLII), 53 CR (6th) 76, per Freedman JA
  3. ↑ Oommen, supra, at p. 518
  4. ↑ Oommen, supra, at p. 520
  5. ↑ R v Ratti, 1991 CanLII 112 (SCC), [1991] 1 SCR 68, per Lamer CJ, at p. 113
    R v Richmond, 2016 ONCA 134 (CanLII), 334 CCC (3d) 315, per Cronk JA, at para 54 (“ Not every mental disorder, even those that are delusion-driven, will trigger a s. 16 defence. The concept of “wrong” embodied in s. 16(1) contemplates knowledge that an act was morally – not legally – wrong in the circumstances, according to the ordinary moral standard of reasonable members of the community.“)

Mental Disorder and "Disease of the Mind"

Section 2 of the Code defines Mental Disorder as a "disease of the mind".

"Mental disorder" and "disease of the mind" are both legal terms, not medical terms.[1]

Disease of the mind encompasses mental illnesses, disorders and mental impairments, both naturally occurring and those resulting from injury or consumption of materials.[2] It is a legal construct, regardless of its medical dimension. It is then a determination of the judge and not medical experts.[3] A finding of a disease of the mind is a question of law based on the evidence before the court.[4]

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."[5]

If there is a disease of the mind, it must be shown to be connected with the accused state of mind at the time of the offence. Specifically, that the disease of the mind caused the accused to be impaired. It must be a sufficiently serious disorder.[6]

Central to the inquiry is the effect of the mental disorder upon the accused's capacity.[7]

The applicant should present expert evidence about "the cause, nature and symptoms of the abnormal condition" and how that condition is viewed and characterized medically.[8]

The judge should take into account "the internal cause factor, the continuing danger factor and other policy considerations."[9] Internal causes refers to malfunctioning mind due to the accused's psychological and emotional make-up.[10]

Expert medical opinion on whether a condition constitutes a "mental disorder" is largely irrelevant to whether the "condition should be classified legally as a disease of the mind."[11]

Sleep Walking

Somnambulism cannot be categorically rejected from being a "disease of the mind". The determination will depend on the evidence.[12]

Examples

Disease of the mind has been found to include:

However, some conditions that do not cause cognitive impairment have been considered insufficient, such as being concurrently mute and deaf.[19]

A mental disorder does not include a person who is deaf or unable to speak.[20]

  1. ↑ R v Stone, 1999 CanLII 688 (SCC), [1999] 2 SCR 290, per Bastarache J, at para 195
    R v SH, 2014 ONCA 303 (CanLII), 310 CCC (3d) 455, per Watt JA, at paras 75, 76
  2. ↑ R v Rabey, 1980 CanLII 44 (SCC), [1980] 2 SCR 513, per Ritchie J
    Stone, supra, at p. 197
    R v Cooper, 1979 CanLII 63 (SCC), [1980] 1 SCR 1149, per Dickson J
  3. ↑ Cooper, ibid.
    Stone, supra, at para 195
    R v Parks, 1992 CanLII 78 (SCC), [1992] 2 SCR 871, per La Forest J, at pp. 898 to 899
    R v Rabey, 1977 CanLII 48 (ON CA), 17 OR (2d) 673 (CA), per Martin JA, at pp. 12-13
    R v Simpson, 1977 CanLII 1142 (ON CA), O.R. (2d) 129, per Martin JA ("The term “disease of the mind” is a legal concept, although it includes a medical component, and what is meant by the term is a question of law for the Judge")
  4. ↑ R v Charest, 1990 CanLII 3425 (QC CA), 57 CCC (3d) 312, per curiam
  5. ↑ Cooper, supra, at p. 1159
  6. ↑ R v Sullivan, 1995 CanLII 8931 (BC CA), 96 CCC (3d) 135, per Hinds JA
  7. ↑ SH, supra, at paras 78{{{3}}}
  8. ↑ SH, supra, at para 79
  9. ↑ SH, supra, at para 80
    Stone, supra, at para 203
  10. ↑ SH, supra, at para 80
    Rabey, supra, at para 59
  11. ↑ R v Luedecke, 2008 ONCA 716 (CanLII), 236 CCC (3d) 317, per Doherty JA
  12. ↑ Luedecke, ibid.
  13. ↑ R v Cooper, 1979 CanLII 63 (SCC), [1980] 1 SCR 1149, per Dickson J
    See also Simpson, supra
    R v Kjeldsen, 1980 ABCA 49 (CanLII), 53 CCC (2d) 55, per Harradence JA appealed to 1981 CanLII 218 (SCC), [1981] 2 SCR 617
  14. ↑ R v MSR, 1996 CanLII 8294 (ON SC), 112 CCC (3d) 406, per Lofchik J
  15. ↑ R v Parks, 1992 CanLII 78 (SCC), [1992] 2 SCR 871, per La Forest J
  16. ↑ eg. R v McLeod, 1980 CanLII 313 (BC CA), 52 CCC (2d) 193, per Craig JA
  17. ↑ eg. R v Mailloux, 1985 CanLII 3580 (ON CA), 25 CCC (3d) 171, per Lacourciere JA
  18. ↑ eg. R v Malcolm, 1989 CanLII 214 (MB CA), 50 CCC (3d) 172, per O'Sullivan JA
  19. ↑ R v Isaac, 2009 ONCJ 662 (CanLII), 250 CCC (3d) 565, per Schneider J
  20. ↑ R v Isaac, 2009 ONCJ 662 (CanLII), 250 CCC (3d) 565, per Schneider J

Self-Induced State

A state of psychosis that is entirely due to self-induced consumption of alcohol cannot form the basis of a NCRMD defence.[1] The defence can only apply where the mental disorder is the "source" of the incapacity, "in spite of the intoxication."[2]

Self-Induce states are presumed to be exempted from the rule of s. 16.[3]

To determine whether self-induced states can still avail to s. 16, the courts should consider (a) internal cause factors and (b) continuing danger theory.[4]

Where a state of psychosis is induced by drug, there may be application of s. 16.[5]

  1. ↑ R v Turcotte, 2013 QCCA 1916 (CanLII), RJQ 1743, per curiam, at para 118 (“ To summarize, self-induced intoxication does not, in and of itself, rule out the defence of mental disorder, except when, as in Bouchard-Lebrun, it is the single cause of the psychosis. The defence of mental disorder must not, however, turn into another form of self-induced intoxication.“)
    R v Bouchard-Lebrun, 2010 QCCA 402 (CanLII), 260 CCC (3d) 548, per curiam appealed to SCC
  2. ↑ Turcotte, ibid., at para 118
  3. ↑ Cooper, supra, at p. 1159
  4. ↑ R v Bouchard-Lebrun, 2011 SCC 58 (CanLII), [2011] 3 SCR 575, per LeBel J
  5. ↑ e.g. R v Patel, 2019 ONCJ 833 (CanLII), per Konyer J

"Appreciating" vs "Knowing"

The verb "appreciating" in section 16 is distinguished from "knowing" in that the appreciation requires a degree of mental analysis on the part of the accused while knowing connotes a bare awareness but not necessarily an understanding or analysis of knowledge or experience.[1]

The act of "appreciating" means "a second stage in a mental process requiring the analysis of knowledge or experience in one manner or another."[2]

The act of "knowing" means a "base awareness, the act of receiving information without more."[3] Appreciation of the "nature and quality" of the act does not require that the "act be accompanied by appropriate feeling about the effect of the act on other people" or that the accused "lacks appropriate feelings for the victim or lacks feelings of remorse or guilt for what he has done". The absence of such feelings is often common among certain people who commit repeated serious offences.[4]

The act of appreciating means appreciating the "physical character" and "physical consequences" of your actions.[5]

  1. ↑ R v Kjeldsen, 1981 CanLII 218 (SCC), [1981] 2 SCR 617, per McIntyre J
    R v Barnier, 1980 CanLII 184 (SCC), [1980] 1 SCR 1124, per Estey J
  2. ↑ Barnier, ibid., at p. 11
  3. ↑ Barnier, ibid., at p. 11
  4. ↑ R v Simpson, 1977 CanLII 1142 (ON CA), 35 CCC (2d) 337, per Martin JA
  5. ↑ Kneldsen, supra

Nature and Quality of Act

The "nature and quality" refers to the "physical character of the act."[1] The accused is not responsible where the offence was "really not his act."[2]

This requirement does not extend to include a mere lack of the "appropriate feelings of remorse or guilt for what she has done."[3]

  1. ↑ R v Schwartz, 1976 CanLII 165 (SCC), [1977] 1 SCR 673, per Martland J
  2. ↑ Schwartz, ibid.
  3. ↑ R v Ejigu, 2016 BCSC 2278 (CanLII), per Davies J, at para 345
    R v Simpson, 1977 CanLII 1142 (ON CA), (1977), 16 OR (2d) 129 (CA), per Martin JA, at p. 14 ("Appreciation of the nature and quality of an act does not import a requirement that the act be accompanied by appropriate feeling about the effect of the act on other people.")

Meaning of "Wrong"

The meaning of the word "wrong" was held to be restricted to "morally wrong" and not "legally wrong."[1]

The meaning of "morally wrong" is determined from "the perspective of society or the perpective of reasonable people."[2]

A person will be unaware of the wrong-ness of an act where he is "deprived of the capacity for rational perception and hence rational choice about the rightness or wrongness of his acts."[3]

The question is whether mental disorder renders them incapable of knowing that their act is not moral on reasonable social standards.[4]

The question is not however whether the offender "was capable of knowing only that an end or objective served by his or her act was morally desirable."[5]

The lack of appreciation must be specific to the particular act that was the subject of the offence. It is not a question of "general capacity."[6]

In assessing capacity to appreciate morally wrong conduct, the focus should be upon "the thinking process of the accused, not their actual knowledge of wrongness". This requires delving into "the thought process, ... coherence, logic, rationality" of the person. Did his condition deprive him of an ability to properly appreciate his conduct?[7]

The issue is whether the accused possessed the capacity to "rationally decide" whether the acts were "right or wrong" so as to chose whether to do the acts.[8] They cannot "rationally decide" where they perceive the acts as "right or justifiable."[9]

Those who have the capacity to "capacity to know that society regards his actions as morally wrong ... cannot be said to lack the capacity to know right from wrong."[10] This is true even when "he believed that he had no choice but to act, or that his acts were justified."[11] But a person who believes the conduct is justified according to the "norms of society"--or a person not able to assess the wrongness of his conduct against "societal norms"--would be unable to know right from wrong.[12]

  1. ↑ R v Chaulk, 1990 CanLII 34 (SCC), [1990] 3 SCR 1303, per Lamer CJ at 1351 [SCR]
    Prior to Chaulk 1990, the standard was simply "legally wrong"
  2. ↑ R v Longridge, 2018 ABQB 145 (CanLII), per Renke J, at para 111 (““Morally wrong” means morally wrong from the perspective of society or the perspective of reasonable people. ...An accused may consider an act to be a moral act and may feel morally compelled to do the act, but because of his or her mental disorder the person may be incapable of knowing that the act is not a moral act by reasonable social standards. That is, the accused may believe that he or she is doing the morally right thing by doing an act, but because of mental disorder the accused is not capable of knowing what reasonable people consider to be right and wrong.“)
  3. ↑ R v Szostak, 2012 ONCA 503 (CanLII), 289 CCC (3d) 247, per Rosenberg JA, at para 57
  4. ↑ Longridge, supra, at para 111
  5. ↑ Longridge, supra, at para 111
  6. ↑ Longridge, supra, at para 112
    R v Oommen, 1frs91994 CanLII 101 (SCC), [1994] 2 SCR 507, per McLachlin J, at p. 516
  7. ↑ R v Schzartz, 1976 CanLII 165 (SCC), [1977] 1 SCR 673, per Martland J
    Longridge, supra, at para 113
  8. ↑ Oommen, supra ("The crux of the inquiry is whether the accused lacks the capacity to rationally decide whether the act is right or wrong and hence to make a rational choice about whether to do it or not. The inability to make a rational choice may result from a variety of mental disfunctions; as the following passages indicate these include at a minimum the states to which the psychiatrists testified in this case -- delusions which make the accused perceive an act which is wrong as right or justifiable, and a disordered condition of the mind which deprives the accused of the ability to rationally evaluate what he is doing.") R v Warsing, 2000 BCSC 388 (CanLII), BCTC 166, at para 122
  9. ↑ Warsing, ibid. at para 122
  10. ↑ R v Dobson, 2018 ONCA 589 (CanLII), 48 CR (7th) 410, per Doherty JA, at para 24
  11. ↑ Dobson, ibid., at para 24
  12. ↑ Dobson, supra, at para 24

Analysis

Trial Steps

Where an NCR defence is being raised, the proper sequence should be as follows:[1]

  1. Determine whether the accused committed the actus reus of the charged offence. If the answer is yes, proceed to step 2.
  2. Determine whether the accused is criminally responsible for taking the action described in step 1. If the answer is yes, proceed to step 3.
  3. Determine what offence the accused committed.
Presumption

There is a presumption that a person is "not ... suffer[ing] from a mental disorder so as to be exempt from criminal responsibility."[2]

Burden of Proof

The party raising the issue of NCR has the burden.[3] Proof must be established on the balance of probabilities.[4]

Procedure

Who Can Raise NCR

Defence counsel may not advance an NCR defence against the instructions of the accused. It must be accused not the counsel who asks.[5]

The Crown can only raise NCR if the accused puts his mental condition into issue or if the accused is convicted.[6]

Evidence

A jury is not required to accept an uncontradicted expert opinion that there is a "strong circumstantial case for an NCR finding."[7] A jury can accept or reject the evidence in the "same manner as any other evidence."[8] The jury can accord less weight to the opinion if it is not based on proven facts or were based on assumptions.[9]

An appellate court reviewing an expert opinion must consider "whether there was a rational basis for rejecting it."[10]

  1. ↑ R v Worrie, 2019 ONSC 4924 (CanLII), per Barnes J, at para 3
    R v David, 2002 CanLII 45049 (ON CA), 169 CCC (3d) 165, per Simmons JA, at paras 55 to 56
  2. ↑ s. 16(2)
  3. ↑ s. 16(3)
    R v Chaulk, 1990 CanLII 34 (SCC), [1990] 3 SCR 1303, per Lamer CJ (found this presumption violated s. 11(d) but was justified under s. 1 of the Charter)
  4. ↑ s. 16(2)
    R v Schoenborn, 2010 BCSC 220 (CanLII), per Powers J, at para 233 (" No one can know for sure whether Mr. Schoenborn at the time of killing his children was suffering from a mental disorder that rendered him incapable of knowing that it was wrong. However, as I said at the beginning of this decision, the burden is not on Mr. Schoenborn to show that it is sure that s. 16 applies, but rather that the evidence must show that it is more likely than not that s. 16 applies. All of the evidence must be considered without sympathy or prejudice to anyone. I must consider all of the evidence with care and with a certain amount of skepticism.")
  5. ↑ R v Szostak, 2012 ONCA 503 (CanLII), 289 CCC (3d) 247, per Rosenberg JA, at para 80
    see also Role of the Defence Counsel
  6. ↑ R v Swain, 1991 CanLII 104, [1991] 1 SCR 933, per Lamer CJ
    see also .s 672.12(3)
  7. ↑ R v Richmond, 2016 ONCA 134 (CanLII), 334 CCC (3d) 315, per Cronk JA, at para 57
  8. ↑ Richmond, ibid., at para 57
  9. ↑ R v Molodowic, 2000 CSC 16 (CanLII), [2000] 1 SCR 420, per Arbour J, at para 7
  10. ↑ Molodowic, ibid.
    Richmond, supra, at para 58

Assessment

Timing

The accused may raise the defence of "NCR at any time during the course of a trial, including after a finding of guilt but before a conviction is entered.[1]

The accused may lead evidence of NCR either during trial or after a verdict of guilt. However, if done after verdict, the defence cannot argue that there was no mens rea.[2]

  1. ↑ R v Swain, 1991 CanLII 104, [1991] 1 SCR 933, per Lamer CJ, at para 71
  2. ↑ R v Brown, 2006 BCSC 1581 (CanLII), 214 CCC (3d) 151, per Powers J

Ruling NCR

Consent by an accused to be declare NCR does not require the same standard as a gulity plea under s. 606(1.1). [1]

  1. ↑ R v Quenneville, 2010 ONCA 223 (CanLII), 207 CRR (2d) 360, per Goudge JA

Consequences of NCR Finding

Effect of verdict of not criminally responsible on account of mental disorder

672.35 Where a verdict of not criminally responsible on account of mental disorder is rendered, the accused shall not be found guilty or convicted of the offence, but

(a) the accused may plead autrefois acquit in respect of any subsequent charge relating to that offence;
(b) any court may take the verdict into account in considering an application for judicial interim release or in considering what dispositions to make or sentence to impose for any other offence; and
(c) the Parole Board of Canada or any provincial parole board may take the verdict into account in considering an application by the accused for parole or for a record suspension under the Criminal Records Act in respect of any other offence.

1991, c. 43, s. 4; 2012, c. 1, ss. 145, 160.

– CCC (CanLII), (DOJ)

Note up: 672.35

Once a finding has been made the judge shall make a decision on disposition under s. 672.45:

Hearing to be held by a court

672.45 (1) Where a verdict of not criminally responsible on account of mental disorder or unfit to stand trial is rendered in respect of an accused, the court may of its own motion, and shall on application by the accused or the prosecutor, hold a disposition hearing.

Transmittal of transcript to Review Board

(1.1) If the court does not hold a hearing under subsection (1) [disposition hearings – power to start hearing], it shall send without delay, following the verdict, in original or copied form, any transcript of the court proceedings in respect of the accused, any other document or information related to the proceedings, and all exhibits filed with it, to the Review Board that has jurisdiction in respect of the matter, if the transcript, document, information or exhibits are in its possession.

Disposition to be made

(2) At a disposition hearing, the court shall make a disposition in respect of the accused, if it is satisfied that it can readily do so and that a disposition should be made without delay.
1991, c. 43, s. 4; 2005, c. 22, ss. 14, 42(F).
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 672.45(1), (1.1) and (2)

NCR verdict cannot be considered where the Code requires a harsher punishment due to a previous conviction (s. 672.36).

Verdict not a previous conviction

672.36 A verdict of not criminally responsible on account of mental disorder is not a previous conviction for the purposes of any offence under any Act of Parliament for which a greater punishment is provided by reason of previous convictions.
1991, c. 43, s. 4.

– CCC (CanLII), (DOJ)

Note up: 672.36

Application for Federal Employment
Definition of “application for federal employment”

672.37 (1) In this section, application for federal employment means an application form relating to

(a) employment in any department, as defined in section 2 of the Financial Administration Act;
(b) employment by any Crown corporation as defined in subsection 83(1) of the Financial Administration Act;
(c) enrolment in the Canadian Forces; or
(d) employment in connection with the operation of any work, undertaking or business that is within the legislative authority of Parliament.
Application for federal employment

(2) No application for federal employment shall contain any question that requires the applicant to disclose any charge or finding that the applicant committed an offence that resulted in a finding or a verdict of not criminally responsible on account of mental disorder if the applicant was discharged absolutely or is no longer subject to any disposition in respect of that offence.

Punishment

(3) Any person who uses or authorizes the use of an application for federal employment that contravenes subsection (2) [prohibition of federal govt to inquire of NCR finding for employment] is guilty of an offence punishable on summary conviction.
1991, c. 43, s. 4.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 672.37(1), (2) and (3)

Consequences of Failure to Find NCR

Where evidence falls short of making out a mental disorder that renders the accused not criminally responsible the evidence can be used to raise doubt on whether there is specific intent.[1]

  1. ↑ R v Kam, 2020 BCSC 893 (CanLII), at para 103 ("Evidence of a mental condition that falls short of a mental disorder that renders the accused not criminally responsible, may raise a reasonable doubt as to whether the accused had the necessary specific intent.")
    R v Robinson, 2010 BCSC 368 (CanLII), per Joyce J, at para 110 ("Such consideration does not create the notion of diminished responsibility, which does not exist in our law. Rather it simply recognizes that if the accused was suffering from some sort of mental condition at the time of the offence, that mental condition is a circumstance that might affect whether or not he formed the necessary specific intent.")
    R v Bailey, 1996 CanLII 2524 (BC CA), 111 CCC (3d) 122, per Donald JA, at paras 13 to 15

Application For High Risk Designation

Case Digests

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