Incapacity and the Ladder of Agency

• Author: Michael Plaxton
• Pages: 524-550

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cha pter 1 4

INCA PACITY AND THE

LA DDER OF AGE NCY

A. INTRODUCTION

In Chapter , I noted that Parliament must be conclusively pre-

sumed not to have intended to guide members of the public away

from involuntary courses of action, for the simple reason that such

an intention would be logically incoherent. It might seem to follow

from this that Parliament simply has nothing to say to those who are,

by virtue of some condition personal to them, incapable of respond-

ing to its guidance — say, very young children, the severely mentally

ill, or those in the grip of a fugue state. Indeed, we oen speak of

them as “exempt” from the criminal law.

But not so fast. It is one thing to say that Parliament recognizes

practical limits on its power to guide anyone by virtue of the particu-

lar circumstances and situations in which they nd themselves. It is

quite another to say that Parliament regards certain classes of people

as intrinsically beyond its reach or as unworthy of its guidance —

as if it was simply a waste of time speaking to them. That is a dan-

gerously dismissive attitude for a legislature to take towards its own

citizens in a democratic society. It makes sense to think about the

 Benjamin Berger, “Mental Disorder and the Instability of Blame” in François Tan-

guay-Renaud & James Stribopolous, eds, Rethinking Criminal Law Theory (Oxford: Hart,

) at ; RA Du, Answering for Crime (Oxford: Hart, ) at –.

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Incapacity and the Ladder of Agency

criminal law as a guiding institution, as we saw in Chapter , only if

we suppose that Parliament respects its citizens as “choosing beings.”

Why should only some members of the public receive that respect?

To make the observation that everyone is equally deserving of

respect as choosing beings, at least for the purposes of the guidance

function, does not mean ignoring obvious dierences in matur-

ity, mental health, fragility, or alcohol dependency when deciding

whether they should be punished. It does not mean condemning and

punishing everyone who engages in prohibited conduct on the basis

that they should automatically and conclusively have certain cogni-

tive capacities attributed to them. That would obviously be unfair.

It does mean that Parliament should be presumed to be speaking to

individuals, exhorting them to use their reason as best they can and

guiding them in that use, even when these entreaties subsequently

turn out to have been in vain.

This is an important point to keep in mind when thinking about

the Supreme Court’s approach to incapacity, because it helps us to

make sense of what seems otherwise to be an intractable paradox. The

Court has consistently invoked the notion of voluntariness by way of

explaining why mental disorder, non-mental disorder automatism,

and extreme intoxication all can, in principle, give rise to an acquit-

tal. In Rabey, Dickson J (as he then was) remarked:

Although the word “automatism” made its way but lately to the legal

stage, it is basic principle that absence of volition in respect of the

act involved is always a defence to a crime. A defence that the act is

involuntary entitles the accused to a complete and unqualied acquit-

tal. That the defence of automatism exists as a middle ground between

criminal responsibility and legal insanity is beyond question. Although

spoken as a defence, in the sense that it is raised by the accused, the

Crown always bears the burden of proving a voluntary act.

Justice Dickson made these comments in dissent, but they were

adopted by a majority of the Supreme Court in Parks. There, a man

 Chapter , Section C.

 R v Rabey, []  SCR  at  [Rabey SCC].

 R v Parks, []  SCR  at  [Parks].