E. Capacity to Know that the Act Is Wrong

• Author: Kent Roach
• Profession: Faculty of Law and Centre of Criminology. University of Toronto
• Pages: 297-300

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Section 16(1) of the Criminal Code provides two alternative arms or formulations of the mental disorder defence. The first, discussed above,

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applies when a mental disorder renders the accused incapable of appreciating the physical consequences of the act. The second is when the disease of the mind renders the accused incapable of knowing that the act was wrong.

In R. v. Schwartz,⁷⁰the Supreme Court divided 5:4, with the majority holding that an accused must be unable to know that an act was legally wrong. Martland J. for the majority concluded that the test "is not as to whether the accused, by reason of mental disease, could or could not calmly consider whether or not the crime which he committed was morally wrong. He is not to be considered as insane . . . if he knew what he was doing and also knew that he was committing a criminal act."⁷¹Dickson J. in his dissent seemed more concerned with giving the insanity defence a generous reading. He noted that Parliament had chosen in section 16 to use the word "wrong," which could refer to either legal or moral wrong. In most cases, there would be no practical difference, but he was concerned about a case in which an accused was capable of knowing that his or her acts were illegal but was not capable of knowing they were morally wrong. He cited the example of an accused who knew that it was legally wrong to kill but did so believing that his killing followed a divine order and therefore was not morally wrong. Dickson J. held that the reference to wrong in section 16 should be interpreted to mean morally wrong. In his view, this broader definition would not give the amoral offender a defence, because the incapacity to know that an act was morally wrong must stem from a disease of the mind and indicate a complete loss of the "ability to make moral distinctions."⁷²In Chaulk,⁷³the Supreme Court reversed Schwartz and concluded that accused should have an insanity defence if, because of a disease of the mind, they were incapable of knowing that an act was morally wrong, even if they were capable of knowing that the act was legally wrong. Lamer C.J. argued for the majority that this broader reading of the insanity defence will not open the floodgates to amoral offenders or to offenders who relieve themselves of all moral considerations. First, the incapacity to make moral judgments must be causally linked to a disease of the mind . . . . Secondly, as was pointed out by Dickson J...