Not Criminally Responsible Due to Mental Disorder

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General Principles

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


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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 page 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]

Psychosis caused by the voluntary consumption of drugs is not eligible for a mental disorder defence under s. 16 of the Code.[4]

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).[5] However, not all offences committed while in a state of delusion will trigger s. 16(1).[6]

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), 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.


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  1. ↑ R v Ejigu, 2016 BCSC 2278 (CanLII), per Davies J at para 333
    R v Chaulk, [1990] 3 SCR 1303, 1990 CanLII 34 (SCC), per Lamer CJ
    R v Swain, [1991] 1 SCR 933, 1991 CanLII 104 (SCC), per Lamer CJ
    R v Oommen, [1994] 2 SCR 507, 1994 CanLII 101 (SCC), per McLachlin J
  2. ↑ R v Borsch, 2007 MBCA 111 (CanLII), per Freedman JA
  3. ↑ Oommen, supra at p. 518
  4. ↑ R v Bouchard-Lebrun, 2010 QCCA 402 (CanLII), per curiam
  5. ↑ Oommen, supra at p. 520
  6. ↑ R v Ratti, [1991] 1 SCR 68, 1991 CanLII 112 (SCC), per Lamer CJ at p.113
    R v Richmond, 2016 ONCA 134 (CanLII), per Cronk JA at para 54

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]

Alcohol and Drugs
A state of psychosis that is entirely due to self-induced consumption of alcohol cannot form the basis of a NCRMD defence.[13] The defence can only apply where the mental disorder is the "source" of the incapacity, "in spite of the intoxication".[14]

Examples
Disease of the mind has been found to include:

  • some types of psychopathy [15]
  • retardation[16]
  • sleep walking[17]
  1. ↑ R v Stone, [1999] 2 SCR 290, 1999 CanLII 688 (SCC), per Bastarache J at para 195
    R v SH, 2014 ONCA 303 (CanLII), per Watt JA at para 75, 76
  2. ↑ R v Rabey, [1980] 2 SCR 513, 1980 CanLII 44 (SCC), per Ritchie J
    R v Stone, supra at p. 197
    R v Cooper, [1980] 1 SCR 1149, 1979 CanLII 63 (SCC), per Dickson J
  3. ↑ Cooper, ibid.
    Stone, supra at para 195
    R v Parks, 1992 CanLII 78 (SCC), per La Forest J at pp. 898 to 899
    R v Rabey, 1977 CanLII 48 (ON CA), (1977) 17 OR (2d) (CA), per Martin JA at pp. 12-13
    R v Simpson, 1977 CanLII 1142 (ON CA), (1977), 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), (1990), 57 CCC (3d) 312 (Que. C.A.), per curiam
  5. ↑ Cooper, supra at p. 1159
  6. ↑ R v Sullivan, 1995 CanLII 8931 (BC CA), per Hinds JA
  7. ↑ S.H., supra at para 78
  8. ↑ S.H., supra at para 79
  9. ↑ S.H., supra at para 80
    Stone at para 203
  10. ↑ S.H., supra at para 80
    Rabey, supra at para 59
  11. ↑ R v Luedecke, 2008 ONCA 716 (CanLII), per Doherty JA
  12. ↑ Luedecke, ibid.
  13. ↑ R v Turcotte, 2013 QCCA 1916 (CanLII), per curiam at para 118
  14. ↑ Turcotte, ibid. at para 118
  15. ↑ R v Cooper, [1980] 1 SCR 1149 1979 CanLII 63 (SCC), per Dickson J
    See also Simpson, supra
    R v Kjeldsen, 1980 ABCA 49 (CanLII), per Harradence JA
  16. ↑ R v MSR, 1996 CanLII 8294 (ON SC), 1996 Ont.Ct. (Gen Div), per Lofchik J
  17. ↑ R v Parks, [1992] 2 SCR 871, 1992 CanLII 78 (SCC), per La Forest 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]


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

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, [1977] 1 SCR 673, 1976 CanLII 165 (SCC), per Martland J
  2. ↑ Schwartz, ibid.
  3. ↑ R v Ejigu, 2016 BCSC 2278 (CanLII), per Davies J at para 345
    R v Simpson (1977), 16 O.R. (2d) 129 (C.A.), 1977 CanLII 1142 (ON CA), per Martin JA, at page 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]

  1. ↑ R v Chaulk, [1990] 3 SCR 1303, 1990 CanLII 34 (SCC), per Lamer CJ at 1351 [SCR]
  2. ↑ R v Longridge, 2018 ABQB 145 (CanLII), per Renke J at para 111
  3. ↑ R v Szostak, 2012 ONCA 503 (CanLII), 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, 1994 CanLII 101 (SCC), [1994] 2 SCR 507, per McLachlin J at 516
  7. ↑ R v Schzartz, [1977] 1 SCR 673, 1976 CanLII 165 (SCC), per Martland J
    R v Longridge, supra at para 113

Procedure

There is a presumption that a person is "not ... suffer[ing] from a mental disorder so as to be exempt from criminal responsibility".[1]

Burden of Proof
The party raising the issue of NCR has the burden.[2] Proof must be established on the balance of probabilities.[3]

Who Can Raise NCR
Defence counsel may not advance an NCR defence against the instructions of the accused. [4]

Evidence
A jury is not required to accept an uncontradicted expert opinion that there is a "strong circumstantial case for an NCR finding."[5] A jury can accept or reject the evidence in the "same manner as any other evidence".[6] The jury can accord less weight to the opinion if it is not based on proven facts or were based on assumptions.[7]

An apellate court reviewing an expert opinion must consider "whether there was a rational basis for rejecting it".[8]

  1. ↑ s. 16(2)
  2. ↑ s. 16(3)
    R v Chaulk, [1990] 3 SCR 1303, 1990 CanLII 34 (SCC), per Lamer CJ - found this presumption violated s. 11(d) but was justified under s. 1 of the Charter
  3. ↑ s. 16(2)
  4. ↑ R v Szostak, 2012 ONCA 503 (CanLII), per Rosenberg JA at para 80
    see also Role of the Defence Counsel
  5. ↑ R v Richmond, 2016 ONCA 134 (CanLII), per Cronk JA at para 57
  6. ↑ Richmond, ibid. at para 57
  7. ↑ R v Molodowic, [2000] 1 SCR 420, 2000 CSC 16 (CanLII), per Arbour J at para 7
  8. ↑ 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] 1 SCR 933, 1991 CanLII 104, per Lamer CJ at para 71
  2. ↑ R v Brown, 2006 BCSC 1581 (CanLII), 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)Template:PerONNCA

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.


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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), 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).


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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.


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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) is guilty of an offence punishable on summary conviction.
1991, c. 43, s. 4.


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Application For High Risk Designation

Case Digests

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