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Criminal Insanity Defence, NCR, Mental Disorder


One option available to some defendants is to attempt to avoid a criminal sentence by convincing the court not to convict them by reason of insanity (defence of mental disorder).

There are two separate methods of doing this:

1) unfit (incompetant) to stand trial;
2) fit to stand trial, though not criminally responsible for the offence by reason of mental disorder (insanity).

While both of these methods will result in the defendant avoiding a criminal sentence, they may result in an indefinite detention in a mental hospital. This means that some defendants may be forced to spend the rest of their life, or a significant number of years, in a mental institution at the discretion of medical professionals and provincial review board.

Some defendants may prefer a criminal sentence of a brief period on probation, or in jail, to a potentially much longer involuntary stay in a mental institution.

Unfit to Stand Trial

The issue of fitness to stand trial must be raised prior to a verdict being rendered (perhaps before the trial begins). The offender must satisfy the court that they have a mental disorder that renders them unable to:

(a) understand the nature or object of the proceedings;
(b) understand the possible consequences of the proceedings; or
(c) communicate with counsel.

If a mental disorder is causing any one of the above noted factors, the accused is not fit to stand trial. The reasoning behind this is that it is unfair to prosecute an individual who is unable to comprehend the proceedings against him.

Being unfit to stand trial does not necessarily mean the accused is able to go free. If the mental insanity is believed to be temporary, the court could order up to 60 days of treatment in hopes the accused will become fit for trial afterward. In most cases, however the matter will be forwarded to a Review Board that will examine the case and determine whether the accused needs to be placed in a mental hospital to protect either himself or the public.

In the event the Review Board orders the accused to attend a mental hospital, there is no set limit as to how long they can detain him. The review board thus has the power to force the accused to be held in a mental hospital for the remainder of his life.

The issue of fitness can be brought by the defendant, the crown, or the court itself. This means the defendant may be forced into a finding of not being fit, even if they wish to stand trial or plead guilty. This is troubling from a defence standpoint because a client may prefer the likely sentence upon conviction than risking an indefinite involuntary stay in a mental institution.

Not Criminally Responsible (NCR) because of Mental Disorder

For defendants that are found to be fit to stand trial, their defence has the option to claim the accused is not criminally responsible because they were suffering from a mental disorder at the time of the crime. This is also referred to as being "not guilty by reason of insanity". In order for this defence to be successful, the following must be proved:

1) That the accused was suffering from a mental disorder at the time the offence was committed; -and-

2) The mental disorder rendered them incapable of appreciating of appreciating the nature and quality of the act or omission or of knowing that it was wrong.

"Suffering from a mental disorder"

Courts have determined that the definition of mental disorder must be viewed with a “broad and liberal” legal construction. It is said to embrace any illness, disorder or abnormal condition that impairs the human mind and its functioning.

A disease of the mind may also include more recently recognized conditions, such as personality disorders. The interpretation thus provides no specific tests and does not limit the definition of mental disorder in any way.

While medical and psychiatric professionals will be relied on for expert testimony as to the specifics of the accused's mental status, the question of whether the accused had a mental disorder at the time of the offense (for the purposes of the criminal case) is ultimately a question of law that will be decided by the judge.

Upon finding that the accused was suffering from a mental disorder at the time of the offence, the judge will then rule on whether the mental disorder rendered him incapable of appreciating the nature and quality of the act or omission or of knowing it was wrong.

What is meant by appreciation of nature and quality?

Appreciating does not simply mean being aware of the physical act. It also involves an estimation and understanding of the act’s consequences.

In R v. Simpson, the court finds that a person can be aware of the physical character of an act and not have the capacity to appreciate that the act will have a specific result (i.e. death). The courts are thus focusing not just on the accused’s objective understanding of an act, but also his or her ability to understand the true meaning and consequences arising from it.

This is another example of the courts reshaping the English M’Naghten framework to fit our contemporary understanding of mental disorder. Simpson also notes that courts ought to avoid looking to the accused’s emotional state at the time of the offence in determining mental disorder. Simply lacking feelings of guilt or remorse will not be enough to establish a mental disorder defence where the accused understands the nature and quality of his actions.

The effect of this interpretation notably disqualifies many individuals suffering from personality disorders from using the mental disorder defence since their mental disorder generally results in a lack of remorse as opposed to the ability to understand the consequences of their actions.

The law is thus careful not to confuse having a lack of a conscience, with a lack of an appreciation for the nature and qualities of an action.

Disadvantages of Mental Disorder Defences

Many lawyers with clients that have obvious mental disorders are put in a difficult position as to whether advancing an insanity defence is truly in their client's best interests or not.

Prior to the 1991 amendments to the criminal code, there were limits as to the maximum amount of time in a mental hospital a person found not guilty by reason of insanity was subject to. After 1991, the law became much more broad and uncertain.

While a criminal sentence is clearly defined, an NCR or unfit for trial finding leaves the client at the mercy of the review board, which has the power to hold the client in a mental institution for the rest of his life.

Is the insane accused better off pleading guilty and taking the crown's offer of 12 months probation and a conditional discharge than risking an indefinite detention at the will of a review board? Perhaps.


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