Lecture 11 Incapacity (mentally) defenses: Section 16 defense: not criminally responsible or NCR. At the time of the offence heshe could not appreciate the quality and nature of what they were doing at the time of the offence. Section 16 focuses on the moment of time when the person committed the offence. When accused is found NCR they have to go the system of the Ontario review board. Crime hearing NCR ORB (Ontario review board which is a hospital). When defense counsel looks at going through with NCR they see if the charge is shorter than the time spent at the ORB hospital then they will not go through with it. Mens rea element is missing. Section 16 can apply to any crime not just serious crimes. The burden of proof is on the accused to establish that he or she was incapacitated at the time of the offence. The judge makes the decision for the defendant to go to the ORB. The accused will have counsel and doctors at the ORB. The ORB determines if the accused posses a risk to the community and if they are found to not be a threat then they get an absolute discharge. If the accused is found NCR they dont have a criminal record and dont have to take their meds. People found NCR at the ORB of serious crimes get reviewed every 3 years. Unfit to stand trial: they are assessing if the accused knows where they are (CJS), the lawyers (crown and defense), and judges role. Defense of intoxication: read R. v. Davio 1994 SCC: D has been drinking all day and sexually assaults women in wheelchair. Accused said he was suffering from disease of the mind and incapacitation. Expert testified that he was an alcoholic and blacked out while committing the crime and was incapacitated. He was found not guilty due to incapacitation. Laws have changed now. The law says they are not going to give people a free pass if they drink to the point of blackout or intoxication. They look at here you were sober (lucid) and you made the decision to become intoxicated and therefore you are not going to get the benefit of an acquittal because you made the decision to do so. Not a defense anymore that will work in court. Davio was the only one who used the defense successfully.