Criminal Responsibility: Part I

AuthorHy Bloom, Richard D Schneider
chapter five
Criminal Responsibility: Part I
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.
(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].
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.

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