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Introduction
There are two ways in which the mental condition of an accused person can become an issue in a criminal trial. The first involves the question of whether the person is fit to stand trial at all; the second, when the person has been tried and found guilty, involves the question of whether he or she should be held criminally responsible for the offence.
This page gives a brief overview of how the second question is dealt with, and what happens as an alternative to punishment if the person is found not criminally responsible. The matter of capacity and fitness to stand trial is dealt with separately.
The rules about mental disorder are found in Part XX.1 (Part 20.1) of the Criminal Code. Please note that, as with all the other sections at this site, we are only providing a glimpse into this particular area of the criminal law. If your interest in it is more than casual, make sure you get legal advice, or at least study the law in much greater detail yourself.
Why does the Defence Exist?
In our system of justice, any person who chooses to break the law (and is caught!) is supposed to be held responsible. But what if someone does not know that what he or she is doing is illegal? Wouldn't it be pointless - as well as immoral - to punish people who are not capable, for one reason or another, of making informed and rational choices between right and wrong (the same line of logic is behind the rule that children under 12 are not held criminally responsible)?
If it is just a case of plain ignorance, well, ignorance of the law is not an excuse - if you're a member of this society, you have a responsibility to know its rules.
There are two classes of people, though, that are excused: the immature and the mentally disordered. The decision has been made that such people should not be dealt with by the criminal law, but through other channels. This policy reflects traditions going back at least as far as Saxon times in England.
"Immature" means under twelve years of age (see the Youth Criminal Justice Act and section 13 of the Criminal Code). The defence of mental disorder is defined by section 16 of the Code.
Recent Amendments to the Criminal Code
The Code was amended in 1992, mainly because of concerns about the arbitrary and archaic way in which the law allowed the "criminally insane" to be dealt with, and about public misconceptions as to how the system worked. The wording of section 16 was changed to reflect more modern psychiatric terminology, and to try to clarify when the defence should apply, and how it should be proved.
Before the amendments, the accused person was found "not guilty", but was placed in secure custody at the pleasure of the Lieutenant Governor of the province (in other words, locked up indefinitely). This created problems with victims and the general public, who often thought that a guilty party had "got off", and with the accused, who would sometimes be inclined to deny culpability and resist treatment ("they found me not guilty").
Is this Really a Defence?
The Code itself calls it a "defence": section 16 is headed "Defence of Mental Disorder". It seems clear, though, that mental disorder (previously referred to as "insanity") is less of a defence than most others - for example self-defence or duress. If the "defence" is successful, it does not result in a verdict of either "guilty" or "not guilty", but rather the special verdict of "not criminally responsible on account of mental disorder" [s. 672.34]. Rather than going free, the accused person is usually institutionalized.
When and How does it Arise?
Even though evidence about the mental state of the accused person may be given at various points in a trial, the judge or jury will not be required to decide on the issue unless and until it is proved that the accused committed the offence charged.
Under section 672.11(b) and (d) of the Code, a court can order a psychiatric assessment of the mental condition of the accused, to see if he or she should be exempt from criminal responsibility, and if so, what should be done with him or her.
The request for an assessment can be brought up by either side in the trial (there have been cases in which the accused's lawyer - knowing how bad the result can be for the accused - strongly resisted having this "defence" raised). While the accused can raise the issue at any time, the Crown can only do so, these days, after a guilty verdict. The responsibility for bringing evidence on mental disorder lies with whichever side raises it.
What has to be Proved?
The judge or jury must be convinced on a balance of probabilities (better than 50/50) that, at the time the offence was committed, the accused was suffering from a mental disorder that rendered him or her incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.
In a jury trial, the judge will only leave the question to be decided by the jury if satisfied that enough evidence has been led to make the issue worth considering.
Mental disorder is defined in the Code as a "disease of the mind" [s.2]. The Supreme Court of Canada has said that it does not include self-induced states caused by alcohol or drugs, or transitory states like hysteria or concussion. "Disease of the mind" can sometimes include personality disorders, particularly severe psychopathy, but disorders of that sort may not pass the second part of the test - they may not leave the sufferer incapable of appreciating the nature and quality of an act, or of knowing that it is wrong. A mere inability to feel guilt or remorse does not count. The incapacity in question has to have existed at the time the offence was committed.
There has been much debate over what it means to be capable of "appreciating the nature and quality" of an act. In a broad sense, it seems to mean understanding the illegality of what is being done, and its probable consequences.
Finally, even if the person was capable of understanding that he or she was committing an unlawful act, there must also have been an awareness that the act was morally wrong. For example, a person might know that murder is forbidden by law, but believe that the killing of the victim has been ordered by God, so is morally justified. Such a delusional belief might be the basis for an exemption from criminal responsibility.
This set of tests is only concerned with the accused's ability to perceive. In other words, it is only a defence if he or she was unable to choose between right and wrong because of an inability to see the difference. Inability to stop onseself from doing what one knows to be wrong (what has become known as an "irresistable impulse") is no excuse.
What Happens to a Person Found Not Criminally Responsible?
Even though a verdict of "not criminally responsible on account of mental disorder" is not technically a conviction, it goes on the person's record and can be considered later by other courts or by the Parole Board, in the same way a conviction would be, except that it is not a "previous conviction" for the purposes of sentencing, in circumstances where a second or subsequent offence would be punished more heavily than a first offence.
Once the verdict is reached, the court will usually hold a "disposition hearing", to decide what to do with the person. If the court does not decide, the decision falls to what is called a "Review Board". One such board is set up in each province. Review Boards are made up, typically, of legal and psychiatric professionals. Sections 672.5 and 672.51 of the Code describe the procedure at a disposition hearing.
There are three possible outcomes after a disposition hearing: the accused person can be discharged, either absolutely or with conditions, or he or she can be ordered detained in a hospital, by means of a Warrant of Committal. The court or Review Board making the decision is to consider "the need to protect the public from dangerous persons, the mental condition of the accused, the reintegration of the accused into society and the other needs of the accused". If the person is ordered detained in a hospital, the court or Review Board can specify the conditions under which he or she is to be detained, and can authorize the hospital administrators to vary those conditions as appropriate.
It should be noted that the order is one of detention, not involuntary treatment. In effect, it is a prison sentence, but the prison is a psychiatric hospital. Once there, the patient can voluntarily submit to treatment, if he or she desires.
When the person is ordered detained, that detention must be reviewed every year by the Review Board.
"Capping" and Dangerous Offenders
One of the biggest criticisms of the old law was that a person was detained indefinitely, and could easily end up serving more time in custody than the maximum prison sentence for the offence committed. The amended sections of the Criminal Code include a system of "capping" intended to limit the time a mentally disordered person can be detained, but this system is not yet in effect, because the section describing it has not been proclaimed in force.
A "cap" is a maximum length of time that a person can be detained, though he or she can be released by the Review Board before that time, if appropriate. Once the cap is reached, a patient who is still considered dangerous can be detained in a secure hospital under provincial mental health legislation. Disparity between provinces in the way their mental health law works is one of the reasons the capping system has not yet been put in place. If the person is not dangerous, he or she must be released once the cap is reached.
For offences with a minimum sentence of life imprisonment (including first or second degree murder), the cap is life. In other words, the capping system does nothing for a murderer who is found not criminally responsible. For a list of other serious offences, the cap is set at ten years or less, and for many relatively minor ones, it is two years or less.
Along with the capping system, when it is finally proclaimed, comes a "dangerous mentally disordered accused" provision. This is very similar to the "dangerous offender" mechanism already in effect. The accused must have committed a "serious personal injury offence" with a possible sentence of ten years or more. It will typically be the case that the offence in question is a sexual one. If the Crown is successful in having the accused designated as dangerous in this way, whatever cap would usually apply can be extended by the court or Review Board. The provision appears to have been a response to provinces' reluctance to use their mental health laws to lock up dangerous mentally disordered offenders whose caps had been reached.
As mentioned above, there will be no finite cap for a mentally disordered murderer, so declaring such a person a dangerous mentally disordered accused would have no effect. The provision is aimed at people who have committed lesser offences of violence, and are particularly likely to re-offend if released.
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FIRST LINE CRIMINAL LAW INFORMATION