JUST 1020 Lecture Notes - Lecture 9: Rape Fantasy, Mental Disorder, Posttraumatic Stress Disorder

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Mental Impairment and Criminal Responsibility

This chapter examines two major defences:

the defences of NCRMD (“Not Criminally Responsible on Account of Mental Disorder”)

Automatism

These defences are distinct from the issue of fitness to stand trial

•

NCRMD is concerned with the issue of criminal responsibility and the state of mind of

the accused person at the time of the alleged offence

Fitness to Stand Trial

“requires limited cognitive capacity to understand the process and to communicate

with counsel”

threshold for being found fit to stand trial is relatively low in Canada.

Whittle (1994) SCC

→

M’Naghten (1843)

At time of act, the accused was suffering from a disease of mind, as to not knowing

the nature and quality of the act he was doing.

Section 16(1)

adopted the M’Naghten rules

16(1) 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.

Disease of Mind

Cooper (1980) SCC

“embraces any illness, disorder or abnormal condition which impairs the human mind

and its functioning, excluding, however, self induced states caused by alcohol or

drugs, as well as transitory mental states such as hysteria or concussion.

2 Stage Test

characterize the mental state

concerns the effects of the disorder

NCR

Howard Richmond-53 yrs. soldier

said he suffered delusions from PTSD

killed his wife Melissa 28yrs

role playing, rape fantasy

flashback of child being murdered in Croatia

stabbed with knife and screwdriver

defence -not criminally responsible

Crown

Doesn’t deny PTSD

premeditated murder

Melissa having affair

planning to leave

700,000 dollar insurance policy

hid knife, screwdriver in duct work of house

Guilty?

Guilty

1st Degree Murder

Stone (1999)

“disease of mind” is a legal and not a strictly medical term.

Determine whether accused had a disease of the mind is a question of fact to be

determined by the trier of fact.

NCRMD

NCRMD is unusual insofar as it does not lead to an acquittal

Instead, it results in a finding that the accused is not criminally responsible on

account of mental disorder

An NCR accused may be discharged absolutely, discharged on conditions, or detained

in a psychiatric hospital for so long as he or she poses a significant threat to the

safety of the public

Crown can raise the Mental Disorder Defence

Swain (1991)

can do so only in two situations

•

where accused puts state of mind as an issue1.

after judge or jury has already concluded that the accused person committed the act2.

NCRMD

The burden of proof rests on the party which raises the issue (whether that be the

Crown or the defence) and that the applicable standard of proof is on the balance of

probabilities

the accused must prove -on a balance of probabilities-that they lacked the capacity

to know that their conduct was blameworthy.

Review Boards

At minimum

Chair -A Judge

A psychologist

an individual ( whose background is not specified but who may have a background in

social work)

Partial Defence

Prevents accused from forming the specific intent required. i.e. robbery.

Allard (1990)

poisoned husband

bipolar affective disorder

Jury instructed if Allard insane at the time then acquit.

if reasonable doubt of incapable of forming intent to kill then manslaughter.

Vince Li

http://www.cbc.ca/news/canada/manitoba/vince-li-granted-unsupervised-

outings-1.2554175

Charter section 7

Is it a violation of section 7 of the Charter if the NCR person has recovered from his

or her mental condition and is no longer a threat to society and the person is

incarcerated for life?

Tim’s law (Tim Mclean)

Automatism

The legal definition for automatism set out in the Stone case (1999)

Namely, “a state of impaired consciousness … in which an individual, though capable

of action, has no voluntary control over that action”

4 Distinctions of Automatism

(1) aut\Penno (1990)

charged with Care or Control

Supreme Court rejected the contention that highly intoxicated motorists can plead

the defence of automatism.

Daviault (1994)

raised defence of extreme intoxication in sexual assault case

“extreme intoxication produces a state of mind akin to automatism or insanity”

acquitted

Section 33.1

Individuals who voluntarily induce a state of extreme intoxication can not raise

automatism defence if they are charged with offences involving personal violence.

Self induced intoxication

Chaulk (2007)

the accused voluntarily consumed a substance which:

s/he knew or ought to have known was an intoxicant and

the risk of becoming intoxicated was or should have been within his/her

contemplation

Primary and Secondary burdens of proof

In all cases, the Crown bears a primary burden to prove its case against the accused

person to the standard of proof beyond a reasonable doubt

This burden shifts to the accused in cases involving automatism. An accused person

seeking to advance this defence must make its case on a balance of probabilities

Otherwise, an accused person bears a secondary or evidentiary burden in all cases to

prove that there is an air-of-reality to its defence

Failure to do so will result in the defence not being put to the jury or considered by

the trial judge if he or she is the trier of fact

Criminal Offences

Harassment

Abduction

Kidnapping

Unlawful Confinement

Amanda Todd

https://www.youtube.com/watch?v=ej7afkypUsc

Criminal harassment s. 264. (1) C.C.

repeatedly communicating

•

besetting or watching place of work, home,etc

•

engaging in threatening conduct

•

Criminal Harassment

Types of behaviour include repeatedly following from place to place, repeatedly

communicating, watching or besetting, or threatening.

The complainant must fear for her/his safety, or the safety of others known to

her/him, based on reasonable grounds, in all the circumstances.

Harass means to vex (e.g. provoke to anger or displeasure, irritation), trouble,

annoy, whether continually or chronically

The purpose of the law is to enable the police to take timely action to protect a

person from being the victim of violence before it is too late

Does the Code require persistent conduct, intent to harass and reasonable fear? See:

R. V. Kosikar (1999) 138 C.C.C.

The test of harassment is objective

R.V. Kosikar (1999) 138 C.C.C

A single act is sufficient for conviction under 264 (2) (d), provided victim is harassed

as a consequence of it. A course of conduct is not required. A single incident can

cause a feeling of being subject to ongoing torment. To prove the harassment

element of the offence, Prosecutor must establish that, as a consequence of the

prohibited act, victim was in a state of being harassed or felt harassed, that is to

say, felt tormented, troubled, worried continually or chronically, plagued,

bedeviled and badgered.

Crown must prove

Prove that the accused had no lawful authority to engage in prohibited conduct (bill

collector, office worker, ex-lover, etc…)

Prove that the complainant feared for her safety

Prove that the accused engaged in any one of the types of conduct that harasses the

victim

Prove the accused knew he was harassing the complainant.

Proof of offence –beyond a reasonable doubt.

Actus Reus

Stalking/criminal harassment can include a number of different behaviours intended

to control and frighten the person being stalked. Most commonly, this can involve:

repeated telephone calls, letters or emails

•

sending unwanted gifts (flowers, candy, etc)

•

showing up uninvited at work or home

•

stealing mail

•

following, watching, tracking

•

threatening harm to the person being stalked, her family, friends, pets

•

harassing her employer, colleagues or family

•

vandalizing her car or home

•

harming pets

•

assault (physical, sexual, emotional)

•

kidnapping, holding hostage

•

Criminal Harassment

Where a person is convicted of an offence under this section, the court imposing the

sentence on the person shall consider as an aggravating factor that, at the time the

offence was committed, the person contravened an order

•

Case: Ann

worked in Service industry

man asked her to coffee or dinner

She said No had a boyfriend

love notes, “compatible in the spiritual world”

bought her Christmas gifts

lean in to sniff her

justice.gc.ca

3 years from first harassment, on Valentine’s day:

a dozen roses, silver platter and gifts.

Ann went to the Police Station

Go home and call 911

Officers say no intent to threat. Guilty of giving her gifts.

What do you think?

called police friend

set up to see Detective. He said it was a clear case of harassment.

arrested, interviewed

said he was having ‘mind sex’ with her

psychological assessment

schizophrenic

fit to stand trial

Crown dilemma -Review Board/Trial

Defence: pled, 3 years probation

take medication etc.

Ann: would call police again but disappointed that accused didn’t go to jail.

Abduction

Guardian is defined as any person who has in law or in fact the custody or control of

another person.

Abduction 280 CC-under 16 years

Everyone who, without lawful authority, takes or causes to be taken an unmarried

person under the age of sixteen years out of the possession of and against the will

of the parent or guardian of that person or of any other person who has the lawful

care or charge of that person is guilty of an indictable offence and liable to

imprisonment for a term not exceeding five years.

Abduction 281 CC –under 14 yrs

Everyone who, not being the parent, guardian or person having the lawful care or

charge of a person under the age of fourteen years, unlawfully takes, entices away,

conceals, detains, receives or harbours that person with intent to deprive a parent

or guardian, or any other person who has the lawful care or charge of that person, of

the possession of that person is guilty of an indictable offence and liable to

imprisonment for a term not exceeding ten years.

Abduction 282(1) CC

Everyone who, being the parent, guardian or person having the lawful care or

charge of a person under the age of fourteen years, takes, entices away, conceals,

detains, receives or harbours that person, in contravention of the custody

provisions of a custody order in relation to that person made by a court

anywhere in Canada, with intent to deprive a parent or guardian, or any other person

who has the lawful care or charge of that person, of the possession of that person is

guilty of

(a)an indictable offence and is liable to imprisonment for a term not exceeding ten

years; or

(b)an offence punishable on summary conviction.

Belief

Where a count charges an offence under subsection (1) and the offence is not proven

only because the accused did not believe that there was a valid custody order but

the evidence does prove an offence under section 283, the accused may be

convicted of an offence under section 283.

Prevent harm

No one shall be found guilty of an offence under sections 280 to 283 if the court is

satisfied that the taking, enticing away, concealing, detaining, receiving or

harbouring of any young person was necessary to protect the young person from

danger of imminent harm or if the person charged with the offence was escaping

from danger of imminent harm.

Consent

In proceedings in respect of an offence under sections 280 to 283, it is not a

defence to any charge that a young person consented to or suggested any conduct of

the accused.

Kidnapping

Every person commits an offence who kidnaps a person with intent

(a)to cause the person to be confined or imprisoned against the person’s will;

(b)to cause the person to be unlawfully sent or transported out of Canada against

the person’s will; or

(c)to hold the person for ransom or to service against the person’s will.

Every person who commits an offence under subsection (1) is guilty of an indictable

offence and liable

(a)if a restricted firearm or prohibited firearm is used in the commission of the

offence or if any firearm is used in the commission of the offence and the offence is

committed for the benefit of, at the direction of, or in association with, a criminal

organization, to imprisonment for life and to a minimum punishment of imprisonment

for a term of

(i) in the case of a first offence, five years, and

(ii) in the case of a second or subsequent offence, seven years;

in any other case where a firearm is used in the commission of the offence, to

imprisonment for life and to a minimum punishment of imprisonment for a term of

four years;

)if the person referred to in paragraph (1)(a), (b) or (c) is under 16 years of age, to

imprisonment for life and, unless the person who commits the offence is a parent,

guardian or person having the lawful care or charge of the person referred to in that

paragraph, to a minimum punishment of imprisonment for a term of five years; and

(b)in any other case, to imprisonment for life.

There must be a movement or taking of the person from one place to another and

not simply the placing of the person in an area of confinement. (annotations criminal

code)

R vs Oakley (1977)

Accused binds victim who originally voluntarily entered truck. Taken to secluded

area where he sexually assaults her.

Kidnapping or Forcible Confinement?

Kidnapping

R vs Brown

False statements by the accused which induced his victim to willingly enter into his

custody constitutes kidnapping. (annotations criminal code)

Kidnapping

Kidnapping is a “continuing” offence, which begins with the taking of the victim and

ends only when the victim is released or consents to the detention.

R vs Hernandez (2011) –The accused was guilty as a party to kidnapping where he did

not participate in the initial taking, but aided and abetted the victim’s subsequent

confinement and forced movements between locations.

Consider

In imposing a sentence under paragraph (1.1)(a.2), the court shall take into account

the age and vulnerability of the victim.

Forcible Confinement

Every one who, without lawful authority, confines, imprisons or forcibly seizes

another person is guilty of

(a)an indictable offence and liable to imprisonment for a term not exceeding ten

years; or

(b)an offence punishable on summary conviction and liable to imprisonment for a

term not exceeding eighteen months.

Kidnapping vs Forcible Confinement

“Forcible confinement deprives the individual of liberty to move from point to point

while kidnapping consists of taking control of a person and carrying them away from

point to another. While kidnapping entails forcible confinement, forcible

confinement can occur without kidnapping.” R vs Tremblay (1997)

Ch8 Mental Impairment and Criminal Responsibility

Monday,(April(9,(2018

7:38(PM

Unlock document

This preview shows pages 1-3 of the document.
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Mental Impairment and Criminal Responsibility

This chapter examines two major defences:

the defences of NCRMD (“Not Criminally Responsible on Account of Mental Disorder”)1.

Automatism2.

These defences are distinct from the issue of fitness to stand trial

•

NCRMD is concerned with the issue of criminal responsibility and the state of mind of

the accused person at the time of the alleged offence

Fitness to Stand Trial

“requires limited cognitive capacity to understand the process and to communicate

with counsel”

threshold for being found fit to stand trial is relatively low in Canada.

Whittle (1994) SCC

→

M’Naghten (1843)

At time of act, the accused was suffering from a disease of mind, as to not knowing

the nature and quality of the act he was doing.

Section 16(1)

adopted the M’Naghten rules

16(1) 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.

Disease of Mind

Cooper (1980) SCC

“embraces any illness, disorder or abnormal condition which impairs the human mind

and its functioning, excluding, however, self induced states caused by alcohol or

drugs, as well as transitory mental states such as hysteria or concussion.

2 Stage Test

characterize the mental state1.

concerns the effects of the disorder2.

NCR

Howard Richmond-53 yrs. soldier

said he suffered delusions from PTSD

killed his wife Melissa 28yrs

role playing, rape fantasy

flashback of child being murdered in Croatia

stabbed with knife and screwdriver

defence -not criminally responsible

Crown

Doesn’t deny PTSD

premeditated murder

Melissa having affair

planning to leave

700,000 dollar insurance policy

hid knife, screwdriver in duct work of house

Guilty?

Guilty

1st Degree Murder

Stone (1999)

“disease of mind” is a legal and not a strictly medical term.

Determine whether accused had a disease of the mind is a question of fact to be

determined by the trier of fact.

NCRMD

NCRMD is unusual insofar as it does not lead to an acquittal

Instead, it results in a finding that the accused is not criminally responsible on

account of mental disorder

An NCR accused may be discharged absolutely, discharged on conditions, or detained

in a psychiatric hospital for so long as he or she poses a significant threat to the

safety of the public

Crown can raise the Mental Disorder Defence

Swain (1991)

can do so only in two situations

•

where accused puts state of mind as an issue1.

after judge or jury has already concluded that the accused person committed the act2.

NCRMD

The burden of proof rests on the party which raises the issue (whether that be the

Crown or the defence) and that the applicable standard of proof is on the balance of

probabilities

the accused must prove -on a balance of probabilities-that they lacked the capacity

to know that their conduct was blameworthy.

Review Boards

At minimum

Chair -A Judge

A psychologist

an individual ( whose background is not specified but who may have a background in

social work)

Partial Defence

Prevents accused from forming the specific intent required. i.e. robbery.

Allard (1990)

poisoned husband

bipolar affective disorder

Jury instructed if Allard insane at the time then acquit.

if reasonable doubt of incapable of forming intent to kill then manslaughter.

Vince Li

http://www.cbc.ca/news/canada/manitoba/vince-li-granted-unsupervised-

outings-1.2554175

Charter section 7

Is it a violation of section 7 of the Charter if the NCR person has recovered from his

or her mental condition and is no longer a threat to society and the person is

incarcerated for life?

Tim’s law (Tim Mclean)

Automatism

The legal definition for automatism set out in the Stone case (1999)

Namely, “a state of impaired consciousness … in which an individual, though capable

of action, has no voluntary control over that action”

4 Distinctions of Automatism

(1) aut\Penno (1990)

charged with Care or Control

Supreme Court rejected the contention that highly intoxicated motorists can plead

the defence of automatism.

Daviault (1994)

raised defence of extreme intoxication in sexual assault case

“extreme intoxication produces a state of mind akin to automatism or insanity”

acquitted

Section 33.1

Individuals who voluntarily induce a state of extreme intoxication can not raise

automatism defence if they are charged with offences involving personal violence.

Self induced intoxication

Chaulk (2007)

the accused voluntarily consumed a substance which:

s/he knew or ought to have known was an intoxicant and

the risk of becoming intoxicated was or should have been within his/her

contemplation

Primary and Secondary burdens of proof

In all cases, the Crown bears a primary burden to prove its case against the accused

person to the standard of proof beyond a reasonable doubt

This burden shifts to the accused in cases involving automatism. An accused person

seeking to advance this defence must make its case on a balance of probabilities

Otherwise, an accused person bears a secondary or evidentiary burden in all cases to

prove that there is an air-of-reality to its defence

Failure to do so will result in the defence not being put to the jury or considered by

the trial judge if he or she is the trier of fact

Criminal Offences

Harassment

Abduction

Kidnapping

Unlawful Confinement

Amanda Todd

https://www.youtube.com/watch?v=ej7afkypUsc

Criminal harassment s. 264. (1) C.C.

repeatedly communicating

•

besetting or watching place of work, home,etc

•

engaging in threatening conduct

•

Criminal Harassment

Types of behaviour include repeatedly following from place to place, repeatedly

communicating, watching or besetting, or threatening.

The complainant must fear for her/his safety, or the safety of others known to

her/him, based on reasonable grounds, in all the circumstances.

Harass means to vex (e.g. provoke to anger or displeasure, irritation), trouble,

annoy, whether continually or chronically

The purpose of the law is to enable the police to take timely action to protect a

person from being the victim of violence before it is too late

Does the Code require persistent conduct, intent to harass and reasonable fear? See:

R. V. Kosikar (1999) 138 C.C.C.

The test of harassment is objective

R.V. Kosikar (1999) 138 C.C.C

A single act is sufficient for conviction under 264 (2) (d), provided victim is harassed

as a consequence of it. A course of conduct is not required. A single incident can

cause a feeling of being subject to ongoing torment. To prove the harassment

element of the offence, Prosecutor must establish that, as a consequence of the

prohibited act, victim was in a state of being harassed or felt harassed, that is to

say, felt tormented, troubled, worried continually or chronically, plagued,

bedeviled and badgered.

Crown must prove

Prove that the accused had no lawful authority to engage in prohibited conduct (bill

collector, office worker, ex-lover, etc…)

Prove that the complainant feared for her safety

Prove that the accused engaged in any one of the types of conduct that harasses the

victim

Prove the accused knew he was harassing the complainant.

Proof of offence –beyond a reasonable doubt.

Actus Reus

Stalking/criminal harassment can include a number of different behaviours intended

to control and frighten the person being stalked. Most commonly, this can involve:

repeated telephone calls, letters or emails

•

sending unwanted gifts (flowers, candy, etc)

•

showing up uninvited at work or home

•

stealing mail

•

following, watching, tracking

•

threatening harm to the person being stalked, her family, friends, pets

•

harassing her employer, colleagues or family

•

vandalizing her car or home

•

harming pets

•

assault (physical, sexual, emotional)

•

kidnapping, holding hostage

•

Criminal Harassment

Where a person is convicted of an offence under this section, the court imposing the

sentence on the person shall consider as an aggravating factor that, at the time the

offence was committed, the person contravened an order

•

Case: Ann

worked in Service industry

man asked her to coffee or dinner

She said No had a boyfriend

love notes, “compatible in the spiritual world”

bought her Christmas gifts

lean in to sniff her

justice.gc.ca

3 years from first harassment, on Valentine’s day:

a dozen roses, silver platter and gifts.

Ann went to the Police Station

Go home and call 911

Officers say no intent to threat. Guilty of giving her gifts.

What do you think?

called police friend

set up to see Detective. He said it was a clear case of harassment.

arrested, interviewed

said he was having ‘mind sex’ with her

psychological assessment

schizophrenic

fit to stand trial

Crown dilemma -Review Board/Trial

Defence: pled, 3 years probation

take medication etc.

Ann: would call police again but disappointed that accused didn’t go to jail.

Abduction

Guardian is defined as any person who has in law or in fact the custody or control of

another person.

Abduction 280 CC-under 16 years

Everyone who, without lawful authority, takes or causes to be taken an unmarried

person under the age of sixteen years out of the possession of and against the will

of the parent or guardian of that person or of any other person who has the lawful

care or charge of that person is guilty of an indictable offence and liable to

imprisonment for a term not exceeding five years.

Abduction 281 CC –under 14 yrs

Everyone who, not being the parent, guardian or person having the lawful care or

charge of a person under the age of fourteen years, unlawfully takes, entices away,

conceals, detains, receives or harbours that person with intent to deprive a parent

or guardian, or any other person who has the lawful care or charge of that person, of

the possession of that person is guilty of an indictable offence and liable to

imprisonment for a term not exceeding ten years.

Abduction 282(1) CC

Everyone who, being the parent, guardian or person having the lawful care or

charge of a person under the age of fourteen years, takes, entices away, conceals,

detains, receives or harbours that person, in contravention of the custody

provisions of a custody order in relation to that person made by a court

anywhere in Canada, with intent to deprive a parent or guardian, or any other person

who has the lawful care or charge of that person, of the possession of that person is

guilty of

(a)an indictable offence and is liable to imprisonment for a term not exceeding ten

years; or

(b)an offence punishable on summary conviction.

Belief

Where a count charges an offence under subsection (1) and the offence is not proven

only because the accused did not believe that there was a valid custody order but

the evidence does prove an offence under section 283, the accused may be

convicted of an offence under section 283.

Prevent harm

No one shall be found guilty of an offence under sections 280 to 283 if the court is

satisfied that the taking, enticing away, concealing, detaining, receiving or

harbouring of any young person was necessary to protect the young person from

danger of imminent harm or if the person charged with the offence was escaping

from danger of imminent harm.

Consent

In proceedings in respect of an offence under sections 280 to 283, it is not a

defence to any charge that a young person consented to or suggested any conduct of

the accused.

Kidnapping

Every person commits an offence who kidnaps a person with intent

(a)to cause the person to be confined or imprisoned against the person’s will;

(b)to cause the person to be unlawfully sent or transported out of Canada against

the person’s will; or

(c)to hold the person for ransom or to service against the person’s will.

Every person who commits an offence under subsection (1) is guilty of an indictable

offence and liable

(a)if a restricted firearm or prohibited firearm is used in the commission of the

offence or if any firearm is used in the commission of the offence and the offence is

committed for the benefit of, at the direction of, or in association with, a criminal

organization, to imprisonment for life and to a minimum punishment of imprisonment

for a term of

(i) in the case of a first offence, five years, and

(ii) in the case of a second or subsequent offence, seven years;

in any other case where a firearm is used in the commission of the offence, to

imprisonment for life and to a minimum punishment of imprisonment for a term of

four years;

)if the person referred to in paragraph (1)(a), (b) or (c) is under 16 years of age, to

imprisonment for life and, unless the person who commits the offence is a parent,

guardian or person having the lawful care or charge of the person referred to in that

paragraph, to a minimum punishment of imprisonment for a term of five years; and

(b)in any other case, to imprisonment for life.

There must be a movement or taking of the person from one place to another and

not simply the placing of the person in an area of confinement. (annotations criminal

code)

R vs Oakley (1977)

Accused binds victim who originally voluntarily entered truck. Taken to secluded

area where he sexually assaults her.

Kidnapping or Forcible Confinement?

Kidnapping

R vs Brown

False statements by the accused which induced his victim to willingly enter into his

custody constitutes kidnapping. (annotations criminal code)

Kidnapping

Kidnapping is a “continuing” offence, which begins with the taking of the victim and

ends only when the victim is released or consents to the detention.

R vs Hernandez (2011) –The accused was guilty as a party to kidnapping where he did

not participate in the initial taking, but aided and abetted the victim’s subsequent

confinement and forced movements between locations.

Consider

In imposing a sentence under paragraph (1.1)(a.2), the court shall take into account

the age and vulnerability of the victim.

Forcible Confinement

Every one who, without lawful authority, confines, imprisons or forcibly seizes

another person is guilty of

(a)an indictable offence and liable to imprisonment for a term not exceeding ten

years; or

(b)an offence punishable on summary conviction and liable to imprisonment for a

term not exceeding eighteen months.

Kidnapping vs Forcible Confinement

“Forcible confinement deprives the individual of liberty to move from point to point

while kidnapping consists of taking control of a person and carrying them away from

point to another. While kidnapping entails forcible confinement, forcible

confinement can occur without kidnapping.” R vs Tremblay (1997)

Ch8 Mental Impairment and Criminal Responsibility

Monday,(April(9,(2018 7:38(PM

Unlock document

This preview shows pages 1-3 of the document.
Unlock all 18 pages and 3 million more documents.

Already have an account? Log in

Mental Impairment and Criminal Responsibility

This chapter examines two major defences:

the defences of NCRMD (“Not Criminally Responsible on Account of Mental Disorder”)1.

Automatism2.

These defences are distinct from the issue of fitness to stand trial

•

NCRMD is concerned with the issue of criminal responsibility and the state of mind of

the accused person at the time of the alleged offence

Fitness to Stand Trial

“requires limited cognitive capacity to understand the process and to communicate

with counsel”

threshold for being found fit to stand trial is relatively low in Canada.

Whittle (1994) SCC

→

M’Naghten (1843)

At time of act, the accused was suffering from a disease of mind, as to not knowing

the nature and quality of the act he was doing.

Section 16(1)

adopted the M’Naghten rules

16(1) 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.

Disease of Mind

Cooper (1980) SCC

“embraces any illness, disorder or abnormal condition which impairs the human mind

and its functioning, excluding, however, self induced states caused by alcohol or

drugs, as well as transitory mental states such as hysteria or concussion.

2 Stage Test

characterize the mental state1.

concerns the effects of the disorder2.

NCR

Howard Richmond-53 yrs. soldier

said he suffered delusions from PTSD

killed his wife Melissa 28yrs

role playing, rape fantasy

flashback of child being murdered in Croatia

stabbed with knife and screwdriver

defence -not criminally responsible

Crown

Doesn’t deny PTSD

premeditated murder

Melissa having affair

planning to leave

700,000 dollar insurance policy

hid knife, screwdriver in duct work of house

Guilty?

Guilty

1st Degree Murder

Stone (1999)

“disease of mind” is a legal and not a strictly medical term.

Determine whether accused had a disease of the mind is a question of fact to be

determined by the trier of fact.

NCRMD

NCRMD is unusual insofar as it does not lead to an acquittal

Instead, it results in a finding that the accused is not criminally responsible on

account of mental disorder

An NCR accused may be discharged absolutely, discharged on conditions, or detained

in a psychiatric hospital for so long as he or she poses a significant threat to the

safety of the public

Crown can raise the Mental Disorder Defence

Swain (1991)

can do so only in two situations

•

where accused puts state of mind as an issue

after judge or jury has already concluded that the accused person committed the act

NCRMD

The burden of proof rests on the party which raises the issue (whether that be the

Crown or the defence) and that the applicable standard of proof is on the balance of

probabilities

the accused must prove -on a balance of probabilities-that they lacked the capacity

to know that their conduct was blameworthy.

Review Boards

At minimum

Chair -A Judge

A psychologist

an individual ( whose background is not specified but who may have a background in

social work)

Partial Defence

Prevents accused from forming the specific intent required. i.e. robbery.

Allard (1990)

poisoned husband

bipolar affective disorder

Jury instructed if Allard insane at the time then acquit.

if reasonable doubt of incapable of forming intent to kill then manslaughter.

Vince Li

http://www.cbc.ca/news/canada/manitoba/vince-li-granted-unsupervised-

outings-1.2554175

Charter section 7

Is it a violation of section 7 of the Charter if the NCR person has recovered from his

or her mental condition and is no longer a threat to society and the person is

incarcerated for life?

Tim’s law (Tim Mclean)

Automatism

The legal definition for automatism set out in the Stone case (1999)

Namely, “a state of impaired consciousness … in which an individual, though capable

of action, has no voluntary control over that action”

4 Distinctions of Automatism

(1) aut\Penno (1990)

charged with Care or Control

Supreme Court rejected the contention that highly intoxicated motorists can plead

the defence of automatism.

Daviault (1994)

raised defence of extreme intoxication in sexual assault case

“extreme intoxication produces a state of mind akin to automatism or insanity”

acquitted

Section 33.1

Individuals who voluntarily induce a state of extreme intoxication can not raise

automatism defence if they are charged with offences involving personal violence.

Self induced intoxication

Chaulk (2007)

the accused voluntarily consumed a substance which:

s/he knew or ought to have known was an intoxicant and

the risk of becoming intoxicated was or should have been within his/her

contemplation

Primary and Secondary burdens of proof

In all cases, the Crown bears a primary burden to prove its case against the accused

person to the standard of proof beyond a reasonable doubt

This burden shifts to the accused in cases involving automatism. An accused person

seeking to advance this defence must make its case on a balance of probabilities

Otherwise, an accused person bears a secondary or evidentiary burden in all cases to

prove that there is an air-of-reality to its defence

Failure to do so will result in the defence not being put to the jury or considered by

the trial judge if he or she is the trier of fact

Criminal Offences

Harassment

Abduction

Kidnapping

Unlawful Confinement

Amanda Todd

https://www.youtube.com/watch?v=ej7afkypUsc

Criminal harassment s. 264. (1) C.C.

repeatedly communicating

•

besetting or watching place of work, home,etc

•

engaging in threatening conduct

•

Criminal Harassment

Types of behaviour include repeatedly following from place to place, repeatedly

communicating, watching or besetting, or threatening.

The complainant must fear for her/his safety, or the safety of others known to

her/him, based on reasonable grounds, in all the circumstances.

Harass means to vex (e.g. provoke to anger or displeasure, irritation), trouble,

annoy, whether continually or chronically

The purpose of the law is to enable the police to take timely action to protect a

person from being the victim of violence before it is too late

Does the Code require persistent conduct, intent to harass and reasonable fear? See:

R. V. Kosikar (1999) 138 C.C.C.

The test of harassment is objective

R.V. Kosikar (1999) 138 C.C.C

A single act is sufficient for conviction under 264 (2) (d), provided victim is harassed

as a consequence of it. A course of conduct is not required. A single incident can

cause a feeling of being subject to ongoing torment. To prove the harassment

element of the offence, Prosecutor must establish that, as a consequence of the

prohibited act, victim was in a state of being harassed or felt harassed, that is to

say, felt tormented, troubled, worried continually or chronically, plagued,

bedeviled and badgered.

Crown must prove

Prove that the accused had no lawful authority to engage in prohibited conduct (bill

collector, office worker, ex-lover, etc…)

Prove that the complainant feared for her safety

Prove that the accused engaged in any one of the types of conduct that harasses the

victim

Prove the accused knew he was harassing the complainant.

Proof of offence –beyond a reasonable doubt.

Actus Reus

Stalking/criminal harassment can include a number of different behaviours intended

to control and frighten the person being stalked. Most commonly, this can involve:

repeated telephone calls, letters or emails

•

sending unwanted gifts (flowers, candy, etc)

•

showing up uninvited at work or home

•

stealing mail

•

following, watching, tracking

•

threatening harm to the person being stalked, her family, friends, pets

•

harassing her employer, colleagues or family

•

vandalizing her car or home

•

harming pets

•

assault (physical, sexual, emotional)

•

kidnapping, holding hostage

•

Criminal Harassment

Where a person is convicted of an offence under this section, the court imposing the

sentence on the person shall consider as an aggravating factor that, at the time the

offence was committed, the person contravened an order

•

Case: Ann

worked in Service industry

man asked her to coffee or dinner

She said No had a boyfriend

love notes, “compatible in the spiritual world”

bought her Christmas gifts

lean in to sniff her

justice.gc.ca

3 years from first harassment, on Valentine’s day:

a dozen roses, silver platter and gifts.

Ann went to the Police Station

Go home and call 911

Officers say no intent to threat. Guilty of giving her gifts.

What do you think?

called police friend

set up to see Detective. He said it was a clear case of harassment.

arrested, interviewed

said he was having ‘mind sex’ with her

psychological assessment

schizophrenic

fit to stand trial

Crown dilemma -Review Board/Trial

Defence: pled, 3 years probation

take medication etc.

Ann: would call police again but disappointed that accused didn’t go to jail.

Abduction

Guardian is defined as any person who has in law or in fact the custody or control of

another person.

Abduction 280 CC-under 16 years

Everyone who, without lawful authority, takes or causes to be taken an unmarried

person under the age of sixteen years out of the possession of and against the will

of the parent or guardian of that person or of any other person who has the lawful

care or charge of that person is guilty of an indictable offence and liable to

imprisonment for a term not exceeding five years.

Abduction 281 CC –under 14 yrs

Everyone who, not being the parent, guardian or person having the lawful care or

charge of a person under the age of fourteen years, unlawfully takes, entices away,

conceals, detains, receives or harbours that person with intent to deprive a parent

or guardian, or any other person who has the lawful care or charge of that person, of

the possession of that person is guilty of an indictable offence and liable to

imprisonment for a term not exceeding ten years.

Abduction 282(1) CC

Everyone who, being the parent, guardian or person having the lawful care or

charge of a person under the age of fourteen years, takes, entices away, conceals,

detains, receives or harbours that person, in contravention of the custody

provisions of a custody order in relation to that person made by a court

anywhere in Canada, with intent to deprive a parent or guardian, or any other person

who has the lawful care or charge of that person, of the possession of that person is

guilty of

(a)an indictable offence and is liable to imprisonment for a term not exceeding ten

years; or

(b)an offence punishable on summary conviction.

Belief

Where a count charges an offence under subsection (1) and the offence is not proven

only because the accused did not believe that there was a valid custody order but

the evidence does prove an offence under section 283, the accused may be

convicted of an offence under section 283.

Prevent harm

No one shall be found guilty of an offence under sections 280 to 283 if the court is

satisfied that the taking, enticing away, concealing, detaining, receiving or

harbouring of any young person was necessary to protect the young person from

danger of imminent harm or if the person charged with the offence was escaping

from danger of imminent harm.

Consent

In proceedings in respect of an offence under sections 280 to 283, it is not a

defence to any charge that a young person consented to or suggested any conduct of

the accused.

Kidnapping

Every person commits an offence who kidnaps a person with intent

(a)to cause the person to be confined or imprisoned against the person’s will;

(b)to cause the person to be unlawfully sent or transported out of Canada against

the person’s will; or

(c)to hold the person for ransom or to service against the person’s will.

Every person who commits an offence under subsection (1) is guilty of an indictable

offence and liable

(a)if a restricted firearm or prohibited firearm is used in the commission of the

offence or if any firearm is used in the commission of the offence and the offence is

committed for the benefit of, at the direction of, or in association with, a criminal

organization, to imprisonment for life and to a minimum punishment of imprisonment

for a term of

(i) in the case of a first offence, five years, and

(ii) in the case of a second or subsequent offence, seven years;

in any other case where a firearm is used in the commission of the offence, to

imprisonment for life and to a minimum punishment of imprisonment for a term of

four years;

)if the person referred to in paragraph (1)(a), (b) or (c) is under 16 years of age, to

imprisonment for life and, unless the person who commits the offence is a parent,

guardian or person having the lawful care or charge of the person referred to in that

paragraph, to a minimum punishment of imprisonment for a term of five years; and

(b)in any other case, to imprisonment for life.

There must be a movement or taking of the person from one place to another and

not simply the placing of the person in an area of confinement. (annotations criminal

code)

R vs Oakley (1977)

Accused binds victim who originally voluntarily entered truck. Taken to secluded

area where he sexually assaults her.

Kidnapping or Forcible Confinement?

Kidnapping

R vs Brown

False statements by the accused which induced his victim to willingly enter into his

custody constitutes kidnapping. (annotations criminal code)

Kidnapping

Kidnapping is a “continuing” offence, which begins with the taking of the victim and

ends only when the victim is released or consents to the detention.

R vs Hernandez (2011) –The accused was guilty as a party to kidnapping where he did

not participate in the initial taking, but aided and abetted the victim’s subsequent

confinement and forced movements between locations.

Consider

In imposing a sentence under paragraph (1.1)(a.2), the court shall take into account

the age and vulnerability of the victim.

Forcible Confinement

Every one who, without lawful authority, confines, imprisons or forcibly seizes

another person is guilty of

(a)an indictable offence and liable to imprisonment for a term not exceeding ten

years; or

(b)an offence punishable on summary conviction and liable to imprisonment for a

term not exceeding eighteen months.

Kidnapping vs Forcible Confinement

“Forcible confinement deprives the individual of liberty to move from point to point

while kidnapping consists of taking control of a person and carrying them away from

point to another. While kidnapping entails forcible confinement, forcible

confinement can occur without kidnapping.” R vs Tremblay (1997)

Ch8 Mental Impairment and Criminal Responsibility

Monday,(April(9,(2018 7:38(PM

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Document Summary

This chapter examines two major defences: the defences of ncrmd ( not criminally responsible on account of mental disorder ) These defences are distinct from the issue of fitness to stand trial. Ncrmd is concerned with the issue of criminal responsibility and the state of mind of the accused person at the time of the alleged offence. Requires limited cognitive capacity to understand the process and to communicate with counsel threshold for being found fit to stand trial is relatively low in canada. At time of act, the accused was suffering from a disease of mind, as to not knowing the nature and quality of the act he was doing. Embraces any illness, disorder or abnormal condition which impairs the human mind and its functioning, excluding, however, self induced states caused by alcohol or drugs, as well as transitory mental states such as hysteria or concussion. 2 stage test characterize the mental state concerns the effects of the disorder.

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