APPEAL VOLUME 19
e law has long provided an exemption from cri minal responsibility for those who were
mentally disordered at the t ime of the oence.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 oence, 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 sucient 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 Oende 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 oender’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 oender’s best
interests and not contrar y to the public interest.8 e oender 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
aorded no procedural protec tions for mentally disordered oenders 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
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.