3. Criminal Capacity and Responsibility 2. Mental Disorder

Mental disorder and illness are often ill-understood by the general public and have historically been stigmatised. The criminal justice system is also often required to deal with issues of mental health for which it is ill-suited. The common law has gradually developed a better understanding of how what was originally known as the "insanity defence" fits into the criminal justice system by emphasising, as do most criminal justice systems around the world, the irresponsibility of those who have acted under the influence of a mental disorder. Someone harbouring under a mental disorder cannot be punished in the retributive sense (they did not commit a fault at the time of the crime, they may not understand their punishment), cannot be specifically deterred (one does not calculate whether to have a mental disorder or not) and cannot be rehabilitated in the conventional penal sense.

At the same time, they may or may not continue to pose a risk to society that requires a specific response. From a policy point of view, the key is what to do with those who have been found not responsible criminally but who nonetheless continue to pose a danger to society? There are many parties to this conversation including, in addition to the usual legislative and judicial actors, the psychiatric profession and civil society groups representing, for example, persons with mental disabilities (which are not the same thing as a mental disorder) or victims of persons who have been found not criminally responsible.

Fundamental principles of criminal justice require that an accused individual be proven to will an act and its criminal consequences in order to be recognized guilty. In keeping with the previous sessions, the theme explored in this session relates to instances where the accused is found incapable of understanding the consequences of his acts. Mental disorder is a prime example of such an instance, where the mental disconnect between perception and reality demands that an alternative form of meaning be attributed to the act – one sheltered from the moral blameworthiness and stigma of criminal voluntarines. Instead, the accused is labeled as suffering from an illness to be taken care of medically.

Procedurally speaking the first legal consequence stemming from allegations of mental disorder relate to the accused’s fitness to stand trial. This legal concept applies before the trial even unfolds in order to protect his or her rights of due process. The test requires the person to be able to comply with minimal standards of functionality necessary to ensure that his or her rights will be protected adequately: the accused must minimally be capable of understanding the process and of communicating with his or her counsel. If the accused is recognised unfit to stand trial, proceedings will remain pending until he or she is determined to be fit for trial or until a prima facie case is made by the crown. Concretely this means that the accused will normally be held in a mental hospital until a board of experts determines that his or her mental conditions have improved sufficiently to stand trial. If the accused remains permanently unfit to stand trial, a board of experts will examine the possibility of granting him a certain measure of freedom based on the level of risk posed by his or her condition. Here the test will weigh the individual’s right to freedom against the community’s right to security.

Once the accused is recognized as fit to stand trial, mental disorder may be raised as a defence to deny the actus reus or mens rea. It may also be raised as an excuse or justification based on the fact that the accused’s mental condition rendered him incapable of knowing that the act was wrong. Again, procedurally speaking the judge will analyse the question of mental disorder once the actus reus has been proven. In doing so the judge will analyse whether, by preponderance of evidence, (1) the defendant demonstrates an inability to comprehend the consequences of his actions (2) due to his or her mental condition. If both criteria are met there is no need to prove the defendant’s requisite intent – the mental disorder assessment concludes the proceedings by demonstrating that the defendant could not possess the minimum criminal will required for his or her condemnation.

This regime has been intensely debated constitutionally. It raises issues about the scope of Parliament's powers, as well as Charter rights problems. Especially when it comes to unfitness for trial, the ability to detain ad infinitum in a context of presumption of innocence is vulnerable when the accused does not pose a danger. The powers of committal when it comes to individuals who have been found not guilty by reason of mental disorder are less problematic, but it is worth noting that they do involve the ability to detain individuals not as a result of having committed a crime. The regime is thus better understood as a mix of the criminal and the administrative. Failing evidence of dangerousness, a discharge is almost inevitable.

The question of mental disorder is one of the key prisms to explore some key concepts of the criminal law (mens rea, voluntariness), as well as the continued interaction between the law and issues of mental health, policy debates on how to best protect society without unduly stigmatizing those with mental health problems, and changing public perceptions about all of the above. The broad evolution of the Canadian regime, especially since the 1970s, is a liberalizing one, but finding the right balance between respect for the freedoms of those with mental disorders and the protection of society can be tricky.

Class preparation:

MENTAL DISORDER AND CANADIAN CRIMINAL LAW, Prepared by: Marilyn Pilon, Law and Government Division, 5 October 1999, Revised 22 January 2002

R v Chaulk [1990] 3 S.C.R. 1303
R. v. Demers, [2004] 2 S.C.R. 489, 2004 SCC 46 (headnote only)
R v Swain, [1991] 1 S.C.R. 933 (headnote only or wikipedia entry)
Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625 (headnote only)
R v. De Grood, [2016] ABQB 294 (the facts are quite long and are included merely to give you a feel for one mental disorder case)

Globe, The, and Mail. “Sanity, Madness and Responsibility.” The Globe and Mail. Accessed February 8, 2017.
"Critics slam new 'high-risk' designation for mentally ill offenders", The Globe and Mail. Accessed January 21, 2018.