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| Patrick Ducharme |
Mental disorder is defined in the Criminal Code as a disease of the mind. Section 16 of the Criminal Code provides that no person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that renders that person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.
Section 16 also provides that every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility by virtue of a mental disorder until the contrary is proved on a balance of probabilities. The burden of proof that an accused was suffering from a mental disorder to be exempt from criminal responsibility is on the party that raises the issue. Normally, that party will be the accused.
If the accused can make out the defence of mental disorder the trier of fact, Judge or jury, is required by law to deliver a verdict of not criminally responsible on account of mental disorder. This verdict is rendered pursuant to section 672.34 of the Code. This section provides that where the jury, or the Judge finds that an accused committed the act or made the omission that formed the basis of the offence charged, but, was at the time suffering from a mental disorder and thus exempt from criminal responsibility by virtue of subsection 16 (1), the jury or Judge shall render a verdict that the accused committed the act or made the omission but is not criminally responsible on account of mental disorder.
This language replaces earlier language describing the verdict as “not guilty by reason of insanity.” We no longer use the term insanity in Canada. The actual verdict that is rendered in Canada is that the accused is not criminally responsible on account of mental disorder.2 A person cannot be convicted of an offence while suffering a mental disorder. Subsection 16 (1) of the Code provides “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. Subsection 16 (2) provides that every person is presumed not to suffer from a mental disorder to be exempt from criminal responsibility, at least until, the contrary is proved on the balance of probabilities. The burden rests with the party that raises the issue.
The term “disease of the mind” is a legal concept and is therefore a question of law. The Supreme Court of Canada decided in R. v. Cooper3 that the term “disease of the mind” embraces any illness, disorder or abnormal condition that 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. The court also wrote that the word “appreciates” imports a requirement that is beyond mere knowledge of the physical quality of the act, and, requires a capacity to apprehend the nature of the act and its consequences. A disease of the mind includes any medically recognized mental disorder or mental illness that can render a person incapable of appreciating the nature and quality of his acts, or of knowing that it was wrong.
There is an ongoing debate in Canada whether a trial Judge should inform the jury of the consequences of a verdict of not criminally responsible on account of mental disorder. The Alberta Court of Appeal has offered the opinion that a trial Judge should inform the jury of the consequences of this finding.
Lieberman J. A. writing for the court majority felt that juries should know the consequences because failure to tell them might give them the false impression that upon a finding of not criminally responsible, the accused, even a dangerous individual because of his mental disorder, would “go free” upon that finding. This may cause a jury not to render that verdict fearing that their verdict would leave a dangerous person out of custody and capable of further injury to others.
That impression would, in fact, be false. A finding that a person is not responsible for a criminal act because of mental disorder does not entitle that person freedom from custody, at least not immediately. A person found not criminally responsible on account of mental disorder by a court is not convicted. That person is also not acquitted either.
A finding of not criminally responsible amounts to a unique third alternative. This third alternative causes the accused to be sent to a Provincial Review Board established under section 672.38 of the Code. This Board is given powers pursuant to section 672.43.
The Board conducts hearings. But even before the Board conducts hearings, the court may, “of its own motion, and shall on application by the accused or the prosecutor, hold a disposition hearing.
If the court does not hold a hearing pursuant to section 672.45 (1) it is required to send, without delay, following the verdict, in original or copied form, any transcript of the court proceedings in respect of the accused, any other document or information related to the proceedings, and all exhibits filed with it, to the Review Board that has jurisdiction in respect of the matter, if the transcript, document, information or exhibits are in its possession.
A disposition hearing by the court, the court shall make a disposition in respect of the accused if it is satisfied that it can readily do so and that a disposition should be made without delay.
The hearing is pursuant to section 672.45. This is referred to as a “disposition hearing.” The court is obligated to hold such a hearing if it is requested by the accused or the prosecutor. Only if the court does not hold a hearing will the matter be sent, without further delay following the verdict, to the Review Board.
If the court determines that it should hold a hearing, or, that it must hold a hearing because there has been an application by the accused or the prosecutor, the court shall make a disposition in respect of the accused if it is satisfied that it can readily do so and that a disposition should be made without delay. If the court does not hold a hearing the court is obligated to send the accused before the Review Board without delay following the verdict.
The rationale for Review Board hearings is that, although the accused is not criminally responsible for his actions in a criminal court of law, the public may still require protection from future dangerous behaviour by him. The Review Board is responsible for assessing his state of mind, his state of mental stability and his level of dangerousness, if any. The Review Board has three options available to it. These options are described as possible “disposition.” The Review Board may order:
an absolute discharge
a conditional discharge; or,
detention in custody in a hospital.
There are only three dispositions that may be made by either the Review Board or the court. However, when, and why these dispositions should be imposed has been considered by the Supreme Court of Canada in the Winko case referred to below. The court and the Review Board must consider the safety of the public. A fair interpretation of the Supreme Court of Canada’s decision in Winko might be to consider the three possible dispositions in the following manner:
1.1. If the accused is not a significant threat to the safety of the public, by order, direct that the accused be discharged absolutely;
1.2. By order, direct that the accused be discharged subject to such conditions as the court or Review Board considers appropriate; or,
1.3. If the accused is or may be a significant threat to the safety of the public by order, direct that the accused be detained in custody in a hospital, subject to such conditions as the court or Review Board considers appropriate.8
Where a verdict of not criminally responsible on account of mental disorder or unfit to stand trial is rendered and the court makes no disposition in respect of an accused, the Review Board shall, as soon as is practicable but not later than forty-five days after the verdict was rendered, hold a hearing and make a disposition.
When the court orders a disposition, other than an absolute discharge, in respect of the accused, the Review Board is still obligated to hold a hearing and order a new disposition within ninety days. That “new” disposition may be the same as the disposition ordered by the court, or, it could be either of the two other possibilities.
Importantly, the Review Board must order the disposition that is the “least onerous and least restrictive to the accused” in considering all the circumstances. Both or either the court and/or the Review Board are required to take into account, “the need to protect the public from dangerous persons, the mental condition of the accused, the reintegration of the accused into society and the other needs of the accused.”
The Review Board must thereafter hold a hearing every year in order to review the previous disposition(s). During these annual reviews the Board may impose any of the three available dispositions and alter any of the conditions previously imposed on the accused.
The above is the an excerpt of Patrick J Ducharme's book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
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