Textbook notes for final exam.
Pages 230 to 245
Mental State At time of Offence
- Insanity impairment of mental or emotional functioning that affects perceptions, beliefs, and
motivations at the time of the offence.
- It basically removes the responsibility for performing a particular act because of uncontrollable
impulses or delusions. For example hearing voices.
- There are two cases that have shaped the standard for insanity in Canada.
1. James Hadfield, who had suffered a head injury from the British war against the
French in the 1800’s had attempted to assassinate King George III. His lawyer
successfully argued that he was out of touch from reality due to his head injury and
he met the insanity standard at the time.
2. Daniel McNaughton in 1843, walked up behind Edward Drummond, a secretary of
the Prime Minister at the time and shot him in the back. McNaughton had recently
arrived in London from Scotland and had purchased two guns. Before he could take
out his second gun to shoot again, he was arrested by the police. There was some
debate whether McNaughton was after the prime minister or Drummond. He
pleaded not guilty to the charges and was sentenced to life in a mental institute.
- From the McNaughton trial emerged 3 criteria that helped identify whether a person was
suffering from insanity or other mental diseases
1. Defendant must be found to be suffering from a defect or disease of mind
2. Defendant must not know the nature or quality of the act that he or she performed
3. Defendant must not know what he or she is doing is wrong
- For many years there had been slight changes to the criminal code regarding the issue of
defendants with mental disorders. some of the criteria went against the charter of rights and
- Finally in 1992 Bill C-30 was enacted and the following changes were made
o The term “not guilty by reason of insanity” was changed to “not criminally responsible
on account of mental disorder” (NCRMD)
o The wording of the standard was altered and stated in section 16 of the Criminal Code
of Canada : “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
- Review boards: legal bodies mandated to oversee the care and disposition of defendants found
unfit and/or not criminally responsible on account of mental disorder.
- In 1999 another change was made. The Supreme Court of Canada stated that a defendant who
is NCRMD should only be detained if he or she poses a criminal threat to the public; otherwise
the defendant should receive and absolute discharge.
Raising Issues of Insanity
- Studies find that few defendants use the insanity defence.
o For example, in the US less than 1% of felony cases will argue insanity.
- However it is argued that 25% of defendants that argue an insanity offense succeed. - The insanity defence occurs when both sides (prosecution and defence) agree to such a verdict.
Studies have shown that defendants who claim insanity usually have major psychiatric disorders
such as schizophrenia, and many past problems.
- In the Canadian criminal justice system a defendant is considered not to suffer from a mental
disorder. In Canada there are two ways in which the crown may raise the issue of insanity
1. Following a guilty verdict the crown can argue that the defendant was NCRMD. This
occurs when the Crown believes that the defendant should undergo psychiatric
treatment and a mental institution is best for the defendants needs
2. If the defence states that the defendant has a mental illness the Crown can argue it.
- The party that raises the issue must prove it beyond a balance of the probabilities
- An insanity defence requires a psychiatric assessment similar to the fitness test to stand trial.
- Richard Rogers developed the first standardized scales for criminal responsibility called the
Rogers Criminal Responsibility Assessment Scales (R-CRAS)
o Composed of five scales
- Each scale has 30 items which are given a score from 0 to 6, where the higher values represent
- The R-CRAS was developed to standardize evaluations and ensure that particular areas are
evaluated, rather than produce a cut off score to indicate criminal responsibility. Clinicians are
supposed to take the results into account and use it for the basis for a decision for the
defendants mental status and criminal responsibility
What happens to a defendant found NCRMD?
- There are 3 dispositions that can be made following a find of NCRMD.
1. If the defendant is not a threat to society or poses low risk for reoffending, the court
or review board can order and absolute discharge, when the defendant is released
into the community without restrictions to his or her behaviour.
2. Order a discharge with conditions, known as a conditional discharge. In this case
the defendant is released; however, their release carries certain conditions (ex. Not
possessing a firearm, staying away from chidren..etc) that the defendant must
meet. Failure to meet the conditions imposed may result in the defendant being
incarcerated or sent to a psychiatric facility.
3. The court of review board might order the defendant to be sent to a psychiatric
society. In this situation is it important to note that the defendant who is sent to a
psychiatric facility need not comply with treatment. It is only when the defendant
is no longer competent to make treatment conditions that steps may be taken to
force treatment on them.
- If the defendant is granted an absolute discharge then his or her case will not forwarded to a
review board. However if the defendants case was to be taken up by a review board, then it will
be reviewed every year. A review board takes into account
o Charge information o Trial transcript
o Criminal history
o Risk assessment
o Clinical history, such as previous admissions to hospital
o Psychological testing
o Hospital’s recommendation
- Bill C-30 later introduced capping, where there is a maximum period of time a person with a
mental illness could be affected by their disposition.
o For example the disposition for a defendant with a mental illness is who committed a
violent offence is ten years, the same length of time as a prison term. Once the cap is
reached the defendant may be released without any restrictions. The cap period can
increase if the defendant is identified as a dangerous offender along with their mental
o However if the defendant is still considered to be dangerous to the public they may be
sent to a secure hospital.
- When deciding on a disposition the court and review board must choose the option that is least
limiting to the defendant. The four main criteria that are considered are
o Public safety
o Mental state of the defendant
o Reintegration of the defendant into society
o Other needs of the defendant.
- Unconscious, involuntary behaviour such that the person committing the act is not aware of
what he or she is doing.
o For example: the case of Kenneth Parks. Kenneth got up in the middle of the night,
drove to his parents- in- law’s house. He walked into the kitchen got a knife and stabbed
his mother-in-law to death and almost killed his father-in-law. Then he drove to the
police station and turned himself in. He was charged with murder and attempted
murder. Parks’s defence was that we was sleep walking, a form of automatism. Parks
was acquitted of both charges
- The criminal code of Canada does not specifically address automatism as a defence, however
judges have had to rely on their own judgement and case law when such defences are raised.
- In 1999 the supreme court of Canada stated that there were two forms of automatism
o Non-insane and insane.
- The verdict in such cases is not guilty. Insane automatism refers to an involuntary action that
occurs because of a mental disorder. In these cases finding of NCRMD would be entered and the
legislation for NCRMD would be applied.
- During a trial in which automatism is presented as the defences the judge
o Must first determine whether there is sufficient evidence that a jury could find that the
defendant’s behaviour was involuntary. The following factors are considered
Severity of triggering event and history of automatic behaviour
o Second the judge must determine if the patient has a mental disorder (insane) or non-
mental disorder (non-insane) automatism.
o The judge could then decide that the result of the automatism could be due to external
factors, in which the defence could claim non-insane automatism. It’s up to the judge
and the jury to determine whether the defendant acted involuntarily. o If the judge concludes that the defendants condition is a result of a mental disorder the
defence can claim insane automatism and the case proceeds as an NCRMD case.
- Non insane automatism have been recognized as the following in Canadian courts
o A physical blow (ex. To the head)
o Physical ailments such as a stroke
o Hypoglycaemia ( low blood sugar
o Carbon monoxide poisoning, sleepwalking, involuntary intoxication
o Physical blow from an extraordinary external event that might reasonably be expected
to cause a dissociative state in an average normal person.
- Important to note that
o Everyday life stresses that may lead to a dissociative state would not be sufficient for a
defence of automatism.
o Dissociative states from psychological factors, such as grief and mourning or anxiety, are
more consistent with diseases of the mind and may be applicable fo