Class 4: Incapacity (Insanity) 100%

Question 1

What is the age of criminal responsibility?

Can they get charged?

Answer 1

12 years old.

Not in jail.

Question 2

Once the evidence shows that the accused suffers from a condition that could be a disease of the mind, what happens next?

Answer 2

Once there is an air of reality, it is given to the jury to see if the cased had a disease of the mind at the time the criminal act was committed.

Question 3

Can a self induced state (alcohol or drugs) count towards insane automatism?

What can it work for?

Answer 3

Self-induced states caused by alcohol or drugs, as well as transitory mental states such as hysteria or concussion cannot work for insanity.

Intoxication.

Question 4

What is the YCJA? (incapacity)

What does it do? (incapacity)

Answer 4

Youth Criminal Justice Act

It hears trials of children at least 12-17 (under the age of 18)

Question 5

How is age measured in terms of incapacity?

If someone is 17 and 364 days old, and they were born at 5am but did something illegal at 1am of there birthday, are they technically 17?

Answer 5

Age – is measured in chronological age rather than in terms of intellectual capacity. (Date of Birth)

A person’s age is determined by section 30 of the Interpretation Act of Canada:

No they are 18. Regardless of the time they were born, it the start of the day that matters. A person is deemed not to have attained a specified number of years of age until the commencement of the anniversary, of the same number, of the day of that person’s birth. (In other words, 12 AM on the date of their birth

Question 6

Can a person under 12 be convicted of an offence?

Answer 6

No.

Question 7

Hypo

I am a drug dealer and I ask a person under the age of 12 to sell drugs. If the child gets caught, will I get punished? Would the kid?

Answer 7

Person under 12 can’t be charged, but I can be charged as a party to the offence.

Question 8

Hypo:

If someone killed someone when they were 12 but now they are 18, how are they tried?

Answer 8

They are tried as youth.

Question 9

Bonus: What is a “672 “ court?

Answer 9

Mental health court. they call it 672 to lessen the stigma of calling it mental health court

Question 10

For mental incapacity, does the accused need to be both physically and mentally present when he is at trial?

What is something the crown will ask the accused

“Is the accused XXX to stand xxxx”?

Answer 10

The law is sometimes concerned with the accused state of mind at the time of his trial.

The accused must not only be physically present, but must be mentally present as well (“fit to stand trial”).

Question 11

For mental incapacity, does the court look at the state of mind of the accused at the time of the act or the time of the trial?

Answer 11

An inquiry into the accused state of mind at the time of the alleged act, not at the time of trial is what we are going to focus on.

Question 12

What does NCR-MD mean in regards to incapacity?

Answer 12

Not criminally responsible, mental disorder.

Question 13

What does a NCR-MD grant you?

Answer 13

it makes you not guilty due to mental disorder.

Court will order a disposition hearing.

Question 14

What does “mental disorder” mean in the criminal code?

Answer 14

A disease of the mind

Question 15

Case of US v Freeman (M’Naughten Rules)

1) What are the big picture M’Naughten rules?

2) What is the two part test?

3) What was the aim of the rule at the time?

4) What is the US test for insanity?

Answer 15

M’Naughten Rules:

1) Every man is presumed to be sane.

Insanity was a defence to criminal charges only if:
1) at the time of the committing of the act, the accused was labouring under such a defect of reason, from a disease of the mind, as not to know the nature and quality of the act he was doing.

or

2) if he did know it, he did not know he was doing what was wrong.

3) The aim was to limit the insanity defence to cognitive insanity, a basic inability to distinguish between right and wrong

4) They also use the same test.

Question 16

What state of mind do you need to look at when thinking of the mental state of the accused with incapacity in mind.

Is it before the after?

Is it after the act?

Is it at the time of trial?

Is it the time of the act?

Answer 16

At the time of the act.

Not before, not after.

Question 17

With incapacity in mind, what was the definition of someone being legally insane?

Answer 17

Not being able to distinguish between right and wrong in regard to the crime with which they are charged.

If the judge finds that the accused could not tell the difference, then there could not be criminal intent.

Question 18

R v Cooper

Facts: Accused was a pyscho patient and ended up raping a women then strangling her.

Issue:

Does disease of mind have a medical component?

Does disease of mind include self induced states?

What is the M’Naughten Standard?

Answer 18

Holding:

Disease of the mind is a legal concept, but it also includes a medical component.

Disease of the mind 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.

To use this defence, it must be of such intensity as to render the accused incapable of appreciating the nature and quality of the violent act

OR

Of knowing that it is wrong

Question 19

Does disease of the mind in regards to incapacity include self induced states (like drugs and alcohol)

Answer 19

No it does not.

Question 20

In regards to the Cooper case, the judge had 6 factors for disease of the mind. (We must know all six)

What are they?

Answer 20

(1) It is a legal concept, although it includes a medical component, and what is meant by that term is

(2) a question of law for the judge

(3) It is the function of the psychiatrist to describe the accused mental condition and how it is considered from the medical point of view.

(4) It is for the judge to decide whether the condition described is comprehended (encompassed) by the term disease of the mind.

(5) A medical witness, while in practice it may be convenient to do so, strictly speaking, is not entitled to state that a particular condition is or is not a disease of the mind, since this is a legal question. Mental disease is not purely a matter of psychiatric definition.

(6) It is for the judge (if sitting alone – without a jury) or the jury, and not for medical professionals, to determine the issue.

Question 21

What is the pivotal issue for a disease of the mind case?

Answer 21

the pivotal issue is whether a condition which constitutes a disease of the mind rendered the accused incapable of appreciating the nature and quality of the act or of knowing that it was wrong.

Question 22

“To appreciate” for disease of mind, what does this mean?

Answer 22

To appreciate requires both knowledge and understanding. An accused may be aware of the physical character of their action (i.e. choking) without necessarily having the capacity to appreciate that, in nature and quality, that act will result in the death of a human being.

Question 23

When is a person incapable of appreciating the nature and quality of an act for incapacity?

Answer 23

A person is incapable of appreciating the nature and quality of an act when he does not have the capacity to understand the character and consequences of what he has done.

Question 24

What is the true test for disease of mind? (aka when do you need to consider the persons state of mind)

Answer 24

The court went on to state that the true test is, was the accused person at the very time of the offense – not before or after, but at the moment of the offence

Question 25

When is the legally relevant time for the accused during incapacity/insanity?

Answer 25

The legally relevant time is the time when the act was committed.

Question 26

Case of Kjeldsen v. R., 1981 SCC

Facts: Not stated in the textbook or class

Issue: What does the word “appreciate” mean for incapacity?

Answer 26

It does not extend to one who has the necessary understanding of the nature, character and consequences, but merely lacks appropriate feelings for the victim or lacks feelings of remorse or guilt for what he has done even though such lack of feeling stems from disease of the mind.

Appreciation of the nature and quality of the act does not import any requirement that the act be accompanied by appropriate feeling about the effect of the act on other people. (Which is what the court had said in Cooper (1979)).

Question 27

Case of R. v Abbey, 1982 SCC

Facts: The accused arrived at airport in Vancouver, has two pounds of cocaine in his bag. He acknowledges to the officers its drugs. The psychiatric evidence suggested that he suffered a disease of the mind which, although not rendering him incapable of appreciating the nature and quality of his act, involved a delusional belief that he was committed to a course of action, no harm would come to him and he would not be punished.

Issue: Is this insanity?

What did “wrong” mean in this case?

Answer 27

A delusion which renders an accused “incapable of appreciating the nature and quality of the act” goes to the mens rea of the offense and brings into operation the first arm of section 16(1): he is not guilty by reason of insanity. (Note: in text it refers to s. 16(2) because this case was before 1992 - after 1992, it is s.16(1) that is applicable.)

A delusion which renders an accused incapable of appreciating that the sanctions (potential sentence) attached to the commission of the crime are applicable to him does not go to the mens rea of the offense; it does not render him/her incapable of appreciating the nature and quality of the act and does not bring into operation the first arm of the insanity defence.

It is more appropriately discussed within the context of the second branch of s. 16(1) - i.e. knowing that an act is wrong.

The court went on to find that because Abbey knew his act was wrong; his inability to appreciate the penal consequences was really irrelevant to the question of legal insanity.

Legally wrong.

Question 28

R . v. Chaulk 1990 SCC

Facts: Two 15 and 17 year olds kill a 83 year old occupant. Goes to the SCC.

Issue: Should the word “wrong” be interpreted to be morally wrong or legally wrong?

(For mental incapacity)

Answer 28

Holding:

The word “wrong” in s. 16(1) should be interpreted to mean “morally wrong” and not “legally wrong”.

Under s. 16(1), the courts must determine whether the accused, because of a disease of the mind, was rendered incapable of knowing that the act committed was something that he ought not to have done. To do so, the inquiry cannot terminate with the discovery that the accused knew that the act was contrary to the formal law. A person may well be aware that an act is contrary to law but, by reason of disease of the mind, is at the same time incapable of knowing that the act is morally wrong in the circumstances according to the ordinary moral standards of society.

Question 29

Hypo:

A, suffered from a disease of the mind and kills someone. He knows it is legally wrong to kill, but believes he is Tupacs angel and had to kill and thus he thought it was morally right.

Is he guilty?

Answer 29

The person must know it to be morally wrong not legally wrong.

Thus, if he believed it was morally right then he would be NCR-MD.

Question 30

Case of R. v. Campione 2015 Ont. C.A.

Facts: The accused was a young woman with a history of mental illness who killed her two young daughters by drowning them. She then placed them in bed with rosary beads around their interlocked hands, and tried unsuccessfully to kill herself. She tried to argue s.16 (Insanity)

Issue: Can she claim s.16?

Does insanity focus on legal wrongs or moral wrongs?

Answer 30

The focus is not on whether the accused lacks the general capacity to know right from wrong, but rather on whether he or she is deprived – by reason of a mental disorder - of the capacity to know that the particular act is right or wrong having regard to the everyday standards of reasonable people.

Even if the act was motivated by the delusion, the appellant will be convicted if she was capable of knowing, in spite of such delusion, that the act in the particular circumstances would have been morally condemned by reasonable members of society.

Question 31

If you follow your own code aka you know what is wrong in society but you say fuck the police and do what you think is fine, and try and argue incapacity, can you?

Answer 31

The defence of NCR-MD is not open to a person who knows that their conduct is wrong in the eyes of society but refuses to accept society’s view on right and wrong and instead follows her own personal, deviant code of right and wrong. Such a person does not lack the capacity to know that her actions are wrong.

Question 32

Before a person plees insanity, what first happen?

Answer 32

The crown must first prove BRD the accused is guilty of the offence.

Question 33

Is there a presumption that someone suffers from a mental disorder?

What standard of proof do you need to prove that someone is suffering from a mental disorder?

Answer 33

There is a presumption that a person does not suffer from a mental disorder until the contrary is proven.

The burden of proving the person suffered from a mental disorder is on a balance of probabilities.

Question 34

Summary for Incapacity:

1) What is section 16 of the CC?

2) Is there a presumption that a persons suffers from a mental disorder?

3) The burden of proving a mental disorder is based on what type of fault standard?

4) Who has the burden of proving mental disorder?

5) Do we use not criminally responsible on account of mental disorder or not guilty by reason of insanity?

6) Does the crown have to prove BRD the crime before NCR-MD is brought up or can it be brought up prior?

7) What does NCR-MD mean?

8) What does a judge have to do after a NCR-MD verdict?

Answer 34

1. Mental disorder provision.
2. s. 16 (2)…. there is a presumption that a person does not suffer from a mental disorder until the contrary is proven.
3. The burden of proving the person suffered from a mental disorder is on a balance of probabilities.
4. s. 16 (3)…burden is on the party that raises the issue;
5. The verdict is now “not criminally responsible on account mental disorder” (s. 672.34). No longer, “not guilty by reason in insanity”.
6. The Crown must always prove BRD the accused is guilty of the offence charged before NCR-MD is considered (often, the accused will acknowledge (plead guilty) their guilty and then raise the issue of NCR-MD)
7. NCR-MD Not criminally responsible, mental disorder
8. Following a NCR-MD verdict the trial judge has the discretion, and an obligation under application by the accused or the Crown, to hold a disposition hearing Such disposition may be an absolute or conditional discharge or detention in custody in a hospital. If the court decides not to deal with disposition, detention or release is in the jurisdiction of provincial review boards, which are now mandatory and subject to detailed procedural requirements (672.38 - 672.94).

Question 35

Summary 2:

1) What is the YCJA? What ages does it take control of?

2) Can a person under 12 be convicted of an offence?

3) Can a person be convicted as a party to an offence of someone under 12?

4) Does the YCJA have exclusive jurisdiction of kids?

5) What if a kid does something bad when 15 but is now 18. Do they get tried as an adult?

6) How do you measure age?

Answer 35

Youth Criminal Justice Act. The YCJA governs trials of all children at least 12 years of age and under the age of 18 (12 – 17).

s. 13 of CC – A person under 12 can’t be convicted of an offence.

A person can be convicted as a party, or accessory after the fact to an offence committed by someone under 12

s. 14 of YCJA – exclusive jurisdiction of the youth justice court to handle matters where a youth is charged; s.14 (5)

even after youth turns 18, if act committed while 12-17;

Age is measured in chronological age rather than in terms of intellectual capacity.

Question 36

Summary 3

Note to Future Phil: This is on Deans Summary. I am unsure if we need to know all the factors, but they are listed out.

May be best to memorize them

Six factors for disease of mind

Answer 36

Disease of the mind:
(1) Is a legal concept, although it includes a medical component, and what is meant by that term is

(2) a question of law for the judge

(3) It is the function of the psychiatrist to describe the accused mental condition and how it is considered from the medical point of view.

(4) It is for the judge to decide whether the condition described is comprehended (encompassed) by the term disease of the mind.

(5) A medical witness, while in practice it may be convenient to do so, strictly speaking, is not entitled to state that a particular condition is or is not a disease of the mind, since this is a legal question. Mental disease is not purely a matter of psychiatric definition.

(6) It is for the judge (if sitting alone – without a jury) or the jury, and not for medical professionals, to determine the issue.

Question 37

Summary 4:

1) Does disease of the mind embrace illnesses, disorders, abnormal conditions? Does disease of the mind embrace self induced states such as drugs and alcohol?

2) In order to claim NCR-MD what is the test?

3) The court has to mechanism to see if it was a disease of the mind. A legal issue and a factual issue. What are they?

Answer 37

Disease of the mind 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) M’Naughten Test.
In order to support a defense of NCR-MD, the disease must be of such intensity as to render the accused incapable of appreciating the nature and quality of the act (first branch) or of knowing that it is wrong (second branch).

Two components

1 The legal issue: Is it a disease of the mind? Usually not the main issue.

2 The factual issue : Was the disease of such intensity as to render the accused incapable of appreciating the nature and quality of the act or of knowing that it is wrong?

Question 38

Summary 5

Read this: Was the disease of such intensity as to render the accused incapable of appreciating the nature and quality of the act or of knowing that it is wrong?

1) Why is the word “appreciates” important in the above?

1a) What is the word “nature” and “quality” referring to?

2) What does the word “nature” and “quality” mean?

3) Does appreciation of the nature and quality of the act important a requirement that you feel bad for what you did on someone else? Do you need remorse or guilt?

4) When is the legally relevant time for the NCR-MD?

Answer 38

1) The first branch of the test (regarding the factual issue), in employing the word “appreciates”, imports an additional requirement to mere knowledge of the physical quality of the act. To know means to be aware of something. To appreciate requires both knowledge and understanding.

a) The nature and quality of an act refers to the physical character and consequences of the act or acts.

2) A person is incapable of appreciating the nature and quality of an act when he does not have the capacity to understand the character and consequences of what he has done.

Appreciation of the nature and quality of the act does not import any requirement that the act be accompanied by appropriate feelings about the effect of the act on other people. And just because a person does not have the appropriate feelings of remorse or guilt for having done something that causes harm to another person does not mean they do not appreciate the nature and quality of the act.

The legally relevant time is the time when the act was committed, not before or after, but at the moment of the offence.

Question 39

Summary 6:

When thinking about the mental disorder provision, what does the word “wrong “indicate?

Morally wrong?

Legally wrong?

Answer 39

The word “wrong” in s. 16(1) should be interpreted to mean “morally wrong” and not “legally wrong”.

A person may well be aware that an act is contrary to law but, by reason of disease of the mind, is at the same time incapable of knowing that the act is morally wrong in the circumstances according to the ordinary moral standards of society and therefore incapable of making the choice necessary to act in accordance with those standards.

The focus is not on whether the accused lacks the general capacity to know right from wrong, but rather on whether he or she is deprived – by reason of a mental disorder - of the capacity to know that the particular act is right or wrong having regard to the everyday standards of reasonable people. An individual accused’s personal sense of justifiability is not sufficient.