Bill C-14: A Step Backwards for the Rights of Mentally Disordered Offenders in the Canadian Criminal Justice System

• Author: Lisa Grantham
• Position: Is a third year law student at the University of Victoria Faculty of Law
• Pages: 63-81

APPEAL VOLUME 19

n

63

ARTICLE

BILL C-14: A STEP BACKWARDS FOR THE

RIGHTS OF MENTALLY DISORDERED

OFFENDERS IN THE CANADIAN CRIMINAL

JUSTICE SYSTEM

Lisa Grantham*

CITED: (2014) 19 Appeal 63–81

INTRODUCTION

e Canadian c riminal justice sys tem has long grappled with those who commit crim inal

acts while suer ing from a mental disorder. As st ated by Just ice McL achlin (as she then

was) in Winko v British Columbia (Forensic Psychiatric Institute) (“Winko ”), “[i]n ever y

society there are t hose who commit criminal acts bec ause of mental illness. e crimina l

law must nd a way to deal with t hes e people fairly, while protecting the public ag ainst

further ha rms. e task is not an easy one.”1 e task has certa inly not been an easy one

to date with lawmak ers struggl ing to strike the appropriate ba lance betwe en protecting

the public and respectin g the liberty of mental ly disordered oenders. In 1992, this

balance was a chieved with the d isposition scheme for oenders found not crimina lly

responsible on account of mental disorder (NCR MD). Unfortunately, Bill C-14 will

change the ex isting regime a nd could negatively impact bot h the crimina l justice and

the mental health s ystem.2 is paper wi ll outline the origi ns of the mental disorder

defence in Canada , examine how the NCR MD scheme currently oper ates, discuss a

recent case involving a NCR MD accused, and na lly analyze t he proposed amendments.

Sensationalist ic cases involving menta lly disordered oenders combined w ith a lack of

understanding by t he public as to how the mental disorder defence operates have caused

the current government to push for unnece ssary a nd unconstitutional a mendments to

the NCRMD regi me.

* Lisa Grantham is a third year law stud ent at the University of Victor ia Faculty of Law. This article

was originally submitte d as a term paper in Professor Gerr y Ferguson’s Criminal Law II course.

Lisa would like to thank Professor Fer guson for his support and input on th e rst version of this

article. Thank you also to Appeal editor Virginia Zhao.

1 Winko v British Columbia (Forensic Psychiatric Institute), [1998] 2 SCR 625 at 637-638, [1999] SCJ No

31 [Winko].

2 Bill C-14, An Act to Amend the Crimi nal Code and the National Defence Act (Mental Diso rder),

2nd Sess, 41st Parl, 2013 (rst reading in the Senate November 26, 2013) [Bill C-14]. Previousl y

introduced as Bill C-54 in the 1st Session of the 41st Parliament. The bill wa s awaiting second

reading debate in the Senate wh en it died on the Order Paper becau se Parliament was

prorogued in Fall 2013. By an Order made by the House of Comm ons on October 21, 2013, Bill

C-14 was deemed approved at all stages completed in the pr evious session.

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APPEAL VOLUME 19

I. HISTORY

e law has long provided an exemption from cri minal responsibility for those who were

mentally disordered at the t ime of the oence.3 In Britain, t he Criminal Lunatics Act

was passed in t he early 19th century and e stablished a specia l verdict where, if the jur y

found that an accu sed was insane at the time of the oence, the cou rt would direct th at

the accused be kept in s trict custody “[…] until his Majesty’s pleasure shal l be known.”4

M’ Na ghte n’s Case clari ed the elements of the defence. In 1843, Daniel M’Na ghten

murdered the civil ser vant Edward Drummond and was found not gu ilty on the grounds

of insanity. ere was negative public rea ction to this decision and the English common

law judges were asked to state t heir opinion regarding the defence. e court held that :

e jury ought to be told in all c ases that every ma n is presumed to be sane,

and to possess a sucient deg ree of reason to be responsible for his crimes,

until the contrar y be proved to their satisfac tion; and that to establi sh a

defence on the ground of insan ity it must be clearly proved that at the time

of committing the act , the accused wa s labouring under such a def ect of

reason, from disea se of the mind, as not to know the nat ure and qualit y

of the act he was doing, or, if he did know it, that he d id not k now he wa s

doing what was wrong.5

In Canada, t he substantive defence and t he post-verdict lieutenant governor’s warrant

(LGW) syst em were both based on the British approach to insanit y.6 Oende rs found not

guilty by rea son of insanity (NGR I) were automatically de tained pursua nt to the LGW

system.7 is regime wa s focused on the protection of society at the e xpense of the mentally

ill oender’s liberty interests. e l ieutenant governor had the power to indetermin ately

detain individu als found NGRI or to disc harge them if it wa s in the oender’s best

interests and not contrar y to the public interest.8 e oender had no abilit y to either

appeal a decision or force the lieutena nt governor to make a ruling w ithin a certa in time

period.9 In 1969, an amend ment was implemented allowing t he lieutenant governor to

appoint an advisory boa rd that could make re commendations regard ing the dispositions

of NGRI accused; however, thi s decision was entirely discre tionary.10 e LGW system

aorded no procedural protec tions for mentally disordered oenders a nd although the

need for reform was recogni zed, change would not be realized u ntil the 1990 s.

3 For a discussion of the historical origins of the me ntal disorder defence, see Edwin A Tollefs on

& Bernard Starkman, Mental Disorder in Criminal Proceedin gs (Toronto: Thomson Carswell, 1993)

at 13-16 [Tollefson]. See also, Joan Barrett & Riun Shandle r, Mental Disorder in Canadian Criminal

Law, loose-leaf (consulted on Januar y 6, 2014) (Toronto: Thomson Carswell, 2006) ch 4 at 1-3

[Barrett].

4 Tollefson, supra note 3 at 14.

5 M’Naghten’s Case (1843), 10 CL & Fin 200 at 209 [M’Naghten’s Case], cited in Canada, Royal

Commission on the Law of Insanit y as a Defence in Criminal Cases, Rep ort of the Royal

Commission on the Law of Insanity as a Defen ce in Criminal Cases (Hull: Queen’s Printer, 1956) at 11

[Report of the Royal Commission].

6 Section 19 of The Criminal Code, 1892, SC 1892, c 29, the original provision that dealt with the

substantive defence, was rep laced by section 16 which came into force in the Criminal Code, SC

1953-54, c 51. The wording of the provision was heavily borrowed f rom M’Naghten’s Case.

7 Subsection 542(2) of the Criminal Code, RSC 1970, c C-34 read “ where the accused is found to

have been insane at the time the o ence was committed, the court, ju dge or magistrate before

whom the trial is held shall ord er that he be kept in strict custody i n the place and in the manner

that the court, judge or ma gistrate directs, until the pleas ure of the lieutenant governor of the

province is known.” This provisi on’s number was changed to s. 614(2) by RSC 1985, c C-46.

8 Barrett, supra note 3, ch 1 at 3. S ee also Simon N Verdun-Jones, “The Insan ity Defence in Canada:

Setting a New Course” (1994) 17:2 Int’l J L & Psychiatry 175 at 176 (ScienceDirect) [Verdun-Jones].

9 Barrett, ibid ch 1 at 3-4.

10 Tollefson, supra note 3 at 1.