C. Mental Disorder or Disease of the Mind

• Author: Kent Roach
• Profession: Faculty of Law and Centre of Criminology. University of Toronto
• Pages: 289-295

Contenidos

• 1) Policy Considerations.
• 2) Continuing Danger and Internal Causes.
• 3) The Cooper Definition.
• 4) Mental Disorder and Transitory States.
• 5) Mental Disorder and Organic Conditions.

Page 289

In order for the defence to apply, an accused must suffer from a disease of the mind or a mental disorder. A person who is unable to appreciate the nature and quality of an act or is incapable of knowing that the act is wrong, but does not suffer from a mental disorder, will not qualify for the defence.³⁷However, holding that a person suffers from a mental disorder is not sufficient. As mentioned, the condition must be severe enough to render the person incapable of appreciating the nature and quality of the act, or incapable of knowing that it was wrong.

1) Policy Considerations

The categories of disease of the mind have expanded since 1843 when the M’Naghten rules were first defined. Judicial interpretation of what constitutes a disease of the mind will be influenced by medical developments, but it remains a question of law for the courts to define and may involve policy considerations not known to the discipline of psychiatry.

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These policy factors relate to concerns about how wide the mental disorder defence should be and the need to protect the public "by the control and treatment of persons who have caused serious harms while in a mentally disordered or disturbed state."³⁸The Supreme Court in Stone has stated that it is open to trial judges to find new policy considerations to influence their interpretation of what constitutes a disease of the mind. "Policy concerns assist trial judges in answering the fundamental question of mixed law and fact which is at the centre of the disease of the mind inquiry: whether society requires protection from the accused and, consequently, whether the accused should be subject to evaluation under the regime contained in Part XX.1 of the Code."³⁹The Court in that case endorsed a "holistic" approach to determining disease of the mind that includes an open-ended list of policy factors, including whether the accused presents a continuing danger and whether his or her conduct can be explained by an internal as opposed to an external cause.

2) Continuing Danger and Internal Causes

A disease of the mind has often been defined in relation to whether there is a continuing danger to the public,⁴⁰or whether the disturbance is related to an internal cause stemming from the psychological makeup of the accused as opposed to an external factor.⁴¹La Forest J. has warned against exclusive reliance on either the continuing danger or the internal cause theories, but has noted that they are united in their common concern for recurrence. In his view, however, even "recurrence is but one of a number of factors to be considered in the policy phase of the disease of the mind inquiry," and "the absence of a danger of recurrence will not automatically exclude the possibility of a finding of insanity."⁴²Nevertheless, the danger of recurrence does seem to be the most important policy factor in determining whether a particular condition constitutes a disease of the mind. It is related to concerns about both the need to protect public safety and to treat and rehabilitate the accused.

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In Stone,⁴³the Supreme Court confirmed that the existence of a continuing danger or an internal cause are legitimate and non-mutually exclusive factors indicating that the accused may suffer from a mental disorder. The psychiatric history of the accused and the likelihood of the recurrence of violence or the stimulus that triggered violence in the past are important considerations in determining whether the accused is a continuing danger. "The greater the anticipated frequency of the trigger in the accused’s life, the greater the risk posed to the public and, consequently, the more likely it is that the condition alleged by the accused is a disease of the mind."⁴⁴Thus, an accused who goes into an automatic state⁴⁵and assaults or kills another because of ordinary teasing or nagging is more likely to be classified as having a disease of the mind than a person who goes into an automatic state after a rare stimulus such as seeing a loved one assaulted or killed. At the same time, the Court warned that the absence of a continuing danger does not preclude a finding of a mental disorder or a disease of the mind.

The existence of an internal cause will be most relevant in cases of psychological blow automatism discussed later in this chapter. An internal cause may reveal itself when the accused goes into an automatic state when faced with something less than "an extremely shocking trigger"⁴⁶that would send "a normal person" in similar circumstances into an automatic state. Comparing how the accused reacted with how a normal person would have acted in similar circumstances is motivated by concerns about public safety when an accused responds atypically and violently to what may be the ordinary stresses and disappointments of life. There may be cases where a focus on internal causes is not helpful and the accused will be found not to suffer from a mental disorder even though there might be an internal cause to his or her actions. As will be discussed later in this chapter, sleepwalking may be an internal cause of automatic behaviour, but it may not be classified as a disease of the mind. Conversely, a person might be classified as having a disease of the mind even though there is no apparent internal cause.

The existence of either a continuing danger or an internal cause are simply factors that suggest the accused may have a mental disorder.

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The absence of these...