Canadian Criminal Procedure and Practice/Mental Illness/Not Criminally Responsible

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

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".

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 test to be applied is found in s.672.34:

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

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

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.

Disease of the mind has been found to include:
 * some types of psychopathy (R. v. Cooper, [1980] 1 S.C.R. 1149 1979 CanLII 63; See also )
 * retardation (R. v. MSR 1996 Ont.Ct. (Gen Div))
 * sleep walking (R. v. Parks, 1992 SCR 871)

"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.

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

The act of "knowing" means a "base awareness, the act of receiving information without more.

Nature and Quality of Act
The "nature and quality" refers to the "physical character of the act." The accused is not responsible where the offence was "really not his act".

Meaning of "Wrong"
The meaning of the word "wrong" was determined in the Supreme Court case of R. v. Chaulk [1990] 3 S.C.R. which held that "wrong" was restricted to "morally wrong" and not "legally wrong".

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

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

Assessment
Every person is presumed sane (s. 16(2)) until established otherwise by the party advancing the issue (s. 16(3)). It must be proven on a balance of probabilities.

Expert evidence is almost always necessary to make a finding on an accused's sanity.

Assessments can be ordered under s. 672.12 by either the court, accused, or crown. The judge cannot order an assessment where it is not requested by either side and is explicitly opposed by both.

The assessment can be ordered even after a trial where there is medical evidence, oral or affidavit, that establishes grounds for an 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.

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.

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).

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

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

Case Digests

 * R. v. Brown, 2012 BCSC 686 -- NCR finding upheld
 * R. v. Hoknes, 2010 ABCA 221 -- Accused fails in overturning NCR finding