The Defence of “Not Criminally Responsible” Under S.16 of the Criminal Code (Formerly Referred to as the “Insanity” Defence)

Many people who are charged with criminal offences suffer from mental illnesses. In very extreme cases an accused who suffers from mental illness may have a defence to the crime they are charged with as their mental health issue prevented them from understanding the nature and quality of their actions or prevented them from knowing their actions were wrong. In other words, they did not have the necessary “guilty mind.” In Canadian criminal law the crown has to prove that person had a guilty mind at the time he or she committed an offence. The Latin term which is used in the Canadian court system is “mens rea”. In order to prove a person is guilty, the crown must prove beyond a reasonable doubt that the accused had the intention or knowledge of wrongdoing at the time he committed the alleged crime. Both the act and the “mens rea” must co-exist at the time of the commission of the offence and be proven by the crown.

A “mental disorder” is an umbrella classification of a number of mental health conditions and diseases that negatively impact a person’s mood, way of thinking, actions and ability to cope with everyday life. A few examples of these are schizophrenia, bipolar disorder, personality and anxiety and dissociative disorders, suicidal behavior, depression and post-traumatic stress disorder. Mental health is just as important and necessary for survival as physical health. The ability to cope and deal with situations is paramount to a healthy and manageable life.

Canadian law is very definitive when concerned with moral culpability and mental disorder. In summary, Section 16 of the Criminal Code states that no individual can be held responsible for their actions or inactions if they were at the time impaired mentally and could not understand or acknowledge the gravity of their actions in the situation. The court will find the person “not criminally responsible” (“NCR”) if their mental illness prevented them from “appreciating the nature and quality of their act or omission” or if their mental illness prevented them from knowing their act or omission was wrong. This defence was formerly referred to as the “insanity defence” or pleading “insanity” and many in the Canadian court system still unfortunately use these outdated terms.

People sometimes take the proclamation “I didn’t do it” literally and this should not always be the case in a court of law. The Law dictates that everyone is assumed innocent until proven guilty in a court of law and not public opinion. Many believe a mental health defence is an “easy way out” for those who wish to escape punishment and this is not always the case. People’s reactions, experiences and circumstances all vary. The feelings of desolation or any kind of emotional distress or disturbance is something that we all feel at some point in our lives. For a lot of us, these challenges are usually overcome or dealt within a short term capacity. Those who are unable to manage and overcome these feelings have the option of seeking professional help to aid in a sometimes quicker and healthier recovery.

A recent controversial case drew much attention to Ontarian Eric Newman, more infamously known as Luka Rocco Magnotta. He was accused of murdering, dismembering and defiling the dead body of his alleged lover, a Chinese student Jun Lin. He then allegedly mailed the dismembered parts to various political parties and a couple of elementary schools and posted a videotape of the murder which was circulated online and prompted the accused to flee the country only to be captured at a later point in Berlin.

The prosecution of Magnotta’s crimes begins in September of this year. The defendant has pled not guilty and it is expected that his defence team may seek to prove he was “not criminally responsible” under s. 16 of the Criminal Code. This is a very daunting and difficult task for the defence and is not as easy as many assume. Many people, especially the jurors tend to be unsure about a “temporary insanity” plea as a defence. Contrary to what many assume, it is not a cut and dry option and is usually very difficult to prove in the Canadian court system.

A person can suffer from a very serious mental illness and not meet the requirements of a s. 16 NCR finding and therefore still be held criminally responsible for committing the offence. Canadian law pertaining to this specific issue as summarized above states that everyone is assumed to be understand the nature and quality of their acts or omissions and know right from wrong. i.e. they are presumed to be “sane”. In order to prove an NCR defence, the burden is clearly on the defence to prove to a balance of probability that the defendant suffered from a mental disorder at the time of the offence which prevented him or her from understanding the nature and quality of their act or did not realize that what they were doing was wrong.

Mental disorders have to be extremely distinctive in order to show or prove that an individual is totally unaware of the moral, lawful and societal wrong that they are committing. The nature and extent of the mental disorder must be clearly proven by the defence and that it was operative at the time of the alleged crime and also meets the stringent tests set out in s. 16 of the Criminal Code. This is an onerous burden on the accused and requires a high level of proof. Thorough investigations will be carried out into an individual’s past psychiatric history up to and after the event to prove an NCR defence. The defence will usually have to call one or more psychiatrists with expertise in these issues at a trial. The Crown attorney will often call one or more psychiatrists at the trial to refute the defence psychiatrists. This often turns into a “battle of the experts” with the judge or jury ultimately deciding whether a person has met the NCR test. A finding of NCR dos not necessarily mean that the person “gets away with it” as the persons may ultimately be confined to a psychiatric facility for the rest of their lives unless they can ultimately convince the Review Board that they are not a danger to society.

Whether you are suffering from a mental disorder or of perfectly sound mind, it is extremely important to retain a good criminal defence lawyer if you are accused of any type of criminal offence or impaired driving. Knowledge , professionalism and experience are the foundations of the Kruse Law Firm and we are readily available to help you get your life back. We achieve the best results possible and have a winning track record for our clients. We can help you. Let us handle your case with the efficiency and importance that it deserves. Contact us today