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CRIM 230 NOTES Ch8-9.docx

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CRIM 230
Simon Verdun- Jones

CHAPTER 8 – Mental Impairment and Criminal Responsibility: Defences of NCRMD and Automatism The Issue of Fitness to Stand Trial  Focused on the accused’s state of mind at the time of the trial  Section 2 CC – unfit to stand trial = unable to o Understand the nature or purpose of the proceeding o Understand the possible consequences o Communicate with counsel  Generally hard to established due to limited cognitive capacity test – eg Taylor 1992, delusions does not vitate fitness to stand trial unless delusions distort rudimentary understanding The Defence of NCRMD  Focused on accused’s state of mind at the time of the alleged offence(s) o Premised upon the belief that the mentally ill do not possess the capacity to distinguish between what is right and wrong, so should not be held criminally responsible, because did not choose to do something wrong The Special Verdict of NCRMD and the Criminal Code Criteria for a Finding that the Accused is NCR  Foundation of modern NCRMD from M’Naghten (1843) case, he killed man, sent to hospital rather than charged for murder, because insane at time of offence.. even tho he ‘knew what he was doing and know it was wrong, but lost ability to control actions’ ….Much disagreement, and changed t  Section 16 (1) of Criminal Code o No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong  Criminal Code requires the establishment of review boards in each province. These admin tribunals carry the primary responsibility for deciding whether an NCR accused person should be detained and if so how long Analysis of the Elements of the NCRMD Defence  Meaning of Mental Disorder o “A disease of the mind”, any illness disorder or abnormal conditions that impairs human mind and its functioning (excluding self-induced states caused by alcohol and drugs) o Bouchard-Lebrun (2011) The NCRMD defence will no be available to an individual who experiences a transitory psychosis as a direct consequence of voluntarily ingesting drugs  Meaning of Know and Appreciate o Know = requires bare awareness, act of receiving information without more o Appreciating = require analysis of knowledge or experience o Cooper 1980 – capable of intending to harm, but not capable of intending to kill. Court said need capacity to perceive consequences of act  Meaning of Nature and Quality of the Act o Refers to the physical consequences, not moral or emotional o Case of Kjeldsen: NCRMD defence is not available to an accused whose mental illness merely prevents him for feeling remorse or guilt o To be capable of “appreciating the nature and quality of his acts Accused person must have the capacity to know what he is doing… and in addition he must have the capacity to estimate and to understand the physical consequences which would flow from his act  Meaning of “Wrong" o The SCC ruled that wrong in section 16 meant morally rather than legally wrong o The issue is whether the accused possessed the capacity present in the ordinary person to know that the act was wrong according to the everyday standards of the reasonable person o Landry 1991 - tot he was God and had to kill Satan (victim). Knew murder was wrong, but his psychotic mental condition render him incapable of knowing that ordinary person would regard the killing as being morally wrong o Onmmen 1994 – tot girl was part of conspiracy to kill him, need to kill her before she kills him.  Trial judge said he subjectively did not believe it was wrong but had general capacity to know right from wrong  SCC disagree, say focus must be on capacity to know act was wrong – should not focus on ‘general ability to distinguish right from wrong’ , but should be on ‘capacity to know killing was right or wrong in the circumstances as he honestly believed them to be”  The Problem of Irresistible Impulse o Knew act, knew it was wrong, but with mental disorder, an irresistible impulse came over and couldn’t help themselves o This defence is NOT recognized by courts o This is to exclude those suffering from “personality disorders” from the “benefit” of the defence Other Procedural Issues  Burden and Standard of Proof Section 16 (2)/(3) o 2) Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility…until the contrary is proved on the balance of probabilities  The standard of proof is on the balance of probabilities (more likely than not) o 3) Party who raises defence of NCRMD must shoulder the burden of proof (can be accused or crown)  Limitations on the Crown’s Power to Introduce Evidence of Metal Disorder o The SCC has ruled that the Crown is entitled to raise the question of NCRMD only where:  1) The accused has placed his or her state of mind in issue  Eg they try to use automatism and get acquittal, crown can bring up evidence – purpose is to protect public interest  2) The trier of fact has concluded that the accused is otherwise guilty of the offence charged  Eg guy refuse to advance NCRMD even tho he was clearly insane – purpose is to maintain principle of fundamental justice and not convict an insane person as criminal  Mental Disorder as a Partial Defence o Even if the accused does not prove NCRMD within the meaning, the courts have held that his or her mental disorder may nevertheless negative specific intent o In certain circumstances, mental disorder may operate to negative the elements of planning and deliberation required for a conviction of first degree murder Disposition of NCRMD Accused Person  An accused is NOT given an acquittal The NCR accused is found to have committed the act that is the subject of the criminal charge (not innocent) but is held to be not criminally responsible on account of his or her mental disorder  Before, all kept in strict custody for an indefinite period – Swain 1991 ruled this to be violation of section 7 and 9.  New provision required review boards be established in each province/territory. o These tribunals have primary responsibility for deciding whether an NCR accused should be detained and for how long.  The possible dispositions are: 1) An absolute discharge // 2) A discharge on conditions // 3) An order to hold in custody in hospital  When making decision, must consider  The need to protect the public from dangerous person, the mental condition of the accused, the reintegration of the accused into society and the other needs of the accused o In the light of these consideration, it must choose the disposition that is the least onerous and least restrictive to the accused  Section 672.54 (2) – if accused is not a significant threat to the safety of the public then the court or review board must direct that the accused be discharged absolutely o Must be satisfied that person constitutes a significant threat, if uncertain or can’t decide, then must be found not a threat o If threat  may discharge subject to conditions, or be detained in custody in hospital and subject to conditions  Must be a significant threat, beyond merely trivial or annoying  Threat must relate to overall mental state at time of hearing, not time of offence Automatism  Defined as a form of “impaired consciousness”, rather than unconsciousness, in which an individual, though capable of action, has no voluntary control over that action  Individual is entitled to get acquittal 5 categories of automatism 1. Caused by a normal state (sleepwalking, hypnosis)  “normal” = not result of mental disorder  Accused gets complete acquittal of any charge  Parks 1992 – sleepwalking, drove 23 km and killed parents in law, had good relations with them, he was acquitted on the basis that he was acting in a state of automatism at the time of the offence  Court said person who is sleepwalking cannot think, reflect or perform voluntary acts (no actus reus) so should be acquitted 2. Trauma triggered by an external event (blow to the head)  After trauma, experience an episode of impaired consciousness, during which accued appears to tb e acting normally, but nevertheless is in a state of altered consciousness and is not able to control actions  Accused is unable to recall any of the events following trauma, has amnesia  Belta 1965 – fights with man, hits head, then stabs him, police said he was ‘in dazed condition’, acting unconsciously with no voluntary control 3. Involuntarily induced by alcohol or other drugs  Person becomes severely impaired by alcohol or drug involuntarily, fall into state of automatism, are entitled to be acquitted of a criminal charge (eg drink was laced)  King 1962 – went dentist, injected a drug, given no warning about impairment or should refrain from driving, became unconscious while driving, acquitted because did not act voluntarily since effects was not made known to him 4. Voluntarily self-induced by alcohol or other drugs.  General rule, voluntarily impairment cannot use automatism defence. Those who use intoxicating substances are at fault because they know it can lead to impairment and this impairment might cause him or her to act in way that might infringe the law. They ingest substances at own free will, with awareness of potential consequences, then naturally they have voluntarily chosen to run the risk.  Penno 1990 – try to say charge of impaired driving is a violation of section 7, because he was in such extreme state of intoxication that he had no awareness of even entering his vehicle  court said impaired driving is quite distinct because if permitted, everyone would just be more intoxicated to avoid conviction, also say impairment is an essential element of the actus reus o Mens rea – voluntarily consume alcohol, actus-voluntary consumption to the point of impairment  Daviault 1994 – sexual assault charge, intoxication produce a state of mind ‘akin to automatism or insanity’, was given acquittal because he lacked minimal awareness of what he was doing o Parliament quickly changed this so that the offence of extreme intoxication is not available to those who commit crimes of violence, assault to others.  Amnesia – irrelevant because even if don
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