D. Capacity to Appreciate the Nature and Quality of the Act

• Author: Kent Roach
• Profession: Faculty of Law and Centre of Criminology. University of Toronto
• Pages: 296-297

Page 296

Even if the accused is held to suffer from a mental disorder or disease of the mind, he or she must qualify under one of the two arms of the mental disorder defence. Canadian courts have stressed that section 16 of the Criminal Code refers to an inability to appreciate the nature and quality of acts, as opposed to the M’Naghten rules, which refer to an inability to know the nature and quality of the act. The ability to appreciate the nature and quality of an act involves more than knowledge or cognition that the act is being committed. It includes the capacity to measure and foresee the consequences of the conduct. In Cooper, Dickson J. stated:

The requirement, unique to Canada, is that of perception, an ability to perceive the consequences, impact, and results of a physical act. An accused may be aware of the physical character of his action (i.e., in choking) without necessarily having the capacity to appreciate that, in nature and quality, the act will result in the death of a human being.⁶⁵An accused who is unable to appreciate the physical consequences of his or her actions because of a mental disorder will have a valid section 16 defence. In a murder case, this also mirrors the mens rea requirement that the accused subjectively know that his or her actions would cause death. Of course, a successful section 16 defence could result in a disposition far more intrusive than an acquittal in a murder case.

The courts have not expanded the defence to apply to those who, because of mental disorder, were unable emotionally to appreciate the effect of their actions on the victim. In Simpson,⁶⁶Martin J.A. stated that the defence did not apply to an accused who has the necessary understanding of the nature, character and consequences of the act, but merely lacks appropriate feelings for the victim or lacks feelings of remorse or guilt for what he has done, even though such lack of feeling stems from "disease of the mind." Appreciation of the nature and quality of the act does not import a requirement that the act be accompanied by appropriate feeling about the effect of the act on other people . . . . No doubt the absence of such

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feelings is a common characteristic of many persons who engage in repeated and serious criminal conduct.

An inability to appreciate that a victim may die can result in a mental disorder defence. An inability to have appropriate emotions about the death of another person, however, does not result in...