Criminal Responsibility: Part I

• Author: Hy Bloom, Richard D Schneider
• Pages: 163-201

163

chapter five

Criminal Responsibility: Part I

A. NOT CRIMINALLY RESPONSIBLE: INTRODUCTION

In 1992, Parliament replaced the “insanity defence” with the defence of “not

criminal ly responsible on account of mental disorder” (NCR). The statutory

changes consist largely of a modernization of the lan guage employed. Sec-

tion 16 of the Criminal Code of Canada 1 articulates the principle that no per-

son who committed an offence while suffering f rom a mental disorder that

rendered the person incapable of appreciating the nature and qualit y of the

act or omission or of knowing that it was wrong may be convicted. T he test

to be met is given consideration below. It should be emphasized at the outset

that the test is stric tly legal, not medical.

Defence of me ntal disorder

16.(1) No person is c riminally resp onsible for an act committed or an

omission made while suffer ing from a mental disorder that rendered t he

person incapable of appreciating t he nature and qualit y of the act or omis-

sion or of knowing that it was w rong.

Presumption

(2) Every person is presumed not to su ffer from a mental disorder so as

to be exempt from crimi nal responsibility by v irtue of subsect ion (1), until

the contrary is proved on t he balance of probabilities.

Burden of proof

(3) The burden of proof that an acc used was sufferi ng from a mental

disorder so as to be exempt from cri minal responsibility is on the par ty that

raises the issue.

1 RSC 1985, c C-46 [Criminal Co de].

164 MENTAL DISORDER AND THE LAW

B. WHEN MAY THE ISSUE ARISE?

As with any defence, the accused may asser t the defence of non-criminal

responsibility at the outset of the tria l or may raise it at the conclusion of the

Crown’s case if, and only if, there is a case to meet calling for a defence. This

may be done as late as upon a f‌inding of guilt, but prior to conviction. T he

fundamental ri ghts of the accused include the right to ma ke a full and an-

swerable defence, including the right to control one’s own defence. However,

the right to control one’s own defence is not absolute.2

When an accused does not want to rely on a section 16 defence of NCR,

the Crown may raise the issue independently. By doing so, the Crown can

help ensure that an accused is not wrongfu lly convicted.3 Prior to raising the

issue, the Crown must meet the ordinar y burden of proof,4 and the Crown

must prove actus reus and mens rea beyond a reasonable doubt. As a result

of the Supreme Court of Canada decision in R v Swain,5 a new common law

rule established that the Crow n may also raise the “defence” over the ac-

cused’s objection at one of two junctures.

1) When the Crown May Raise the Issue

The Crown may raise the issue where (1) during the accuse d’s own defence,

the accused puts mental capacity in i ssue; or (2) after the trier of fact has

concluded that the accused is otherw ise guilty.

This common law rule provides procedural ly for a “bifurcated trial.” If the

issue is not raised by the accused at the outset of the tr ial, the issue may be raised

by either party — but only after the accused is proven otherw ise guilty. The ac-

cused may call ev idence at the f‌irst phase of the bifurcated tria l and may raise

other issues or defences such as “identif‌ication,” or alibi, etc., while reserv ing the

right to respond with the defence of NCR only if the tr ier of fact f‌inds him guilty.6

2) Should the Court Raise the Defence on its Own Motion?

Comments made in o biter in Swain have caused some jurists to believe they

have an obligation to raise the defence of NCR even in situations where nei-

2 R v Bouvier, [2011] SJ No 463 (CA); R v Kobzar, [2012] OJ No 2179 (CA) [Kobzar]; R v Vas-

sell, [2013] OJ No 2848 (Ct J) [Vassell]; R v Dickson, [2013] OJ No 6418 (SCJ).

3 R v Resler, [2011] AJ No 243 (CA).

4 R v Eli, [2014] BCJ No 2766 (SC); R v Hosack, [2013] BCJ No 29 75 (SC); R v McBride,

[2012] OJ No 6506 (Ct J).

5 R v Swain, [1991] 1 SCR 933 [Swain].

6 Ibid.

Chapter Five: Criminal Responsibility: Part I 165

ther the defence nor the Crown are seeking suc h a verdict. In Swain, L amer

CJC said the following.

An accused person has control over t he decision of whether to have coun-

sel, whether to testif y on his or her own behalf, and what witnesses to cal l.

This is a ref‌lect ion of our society’s tradit ional respect for individua l auton-

omy within an adversar ial system. In R v Chaulk, supra, I indic ated that the

insanity defence is best c haracterized as an exemption to cri minal liabilit y

which is based on an incapacit y for criminal intent.7

Parenthetically, it is not the law that the NCR defence principally operates

to negate the requisite mens rea. If men s rea is not proved there is no need for

any defence. The NCR defence, as set out in section 16, is a supervening de-

fence which assumes that mens rea has been proved — but which, in some

cases, may operate collaterally to disprove the otherw ise proven mens rea. The

classic example is the accused who plans and delibe rates and specif‌ically in-

tends to kill his neighbour, but believes t he neighbour to be Satan about to

eliminate the entire huma n population. All elements of the offence are proved.

In my view, the decision whether or not to raise t his exemption as a means

of negating crim inal culpabilit y is part and parcel of the conduct of an ac-

cused’s overall defence. . . .8

Thus, although it is a pr inciple of fundamental just ice that an accused has

the right to control his or her own defe nce, this is not an “absolute” right. If an

accused chooses to conduct his or her defence i n such a way that the accused’s

mental capacity for cr iminal intent is somehow put into question, t hen the

Crown will be ent itled to “complete the picture” by raisi ng its own evidence

of insanity and the t rial judge will be entit led to charge the jury on s. 16 . . . .

The Crown has indic ated, however, that the Crown’s ability to raise in-

dependently evidence of insa nity conforms with a second pr inciple of fun-

damental justice; na mely, that a person who was insane at the time of t he

offence (and was therefore incapable of having c riminal intent) oug ht not

to be convicted under the c riminal law. In other words, it is argued that the

Crown must have the abilit y to raise evidence of insanity when the accused

chooses not to do so, because it would violate t he principles of fundamental

justice for the accused to be convic ted of a criminal offence when there is a

real question about the accused’s cri minal culpability (and, therefore, about

the accused’s guilt) . . .

7 Ibid at 9 72.

8 Ibid.