Legal defence of not criminally responsible on account of mental disorder

NCRMD

Not Criminally Responsible on Account of Mental Disorder: A Discussion of the history and current understanding of the NCRMD legal defense in Canada.

Since ancient Roman times, legal codes have been written to account for the mentally deficient members of society. From terms such as "madman" in the sixth century to common defenses such as "guilty but mentally ill" in the United States, courts of law in almost all nations have allowed certain defendants to plead their case using an insanity defense (Aaronson, 1998). In Canadian Law, this defense is known as the "NCRMD" defense, or "Not Criminally Responsible on Account of Mental Disorder" (Department of Justice, Canada, 2002).

This paper discusses the origins of the NCRMD defense, as well as the history of the defense within Canada. Additionally, this paper will discuss the current definitions within the Canadian Criminal Code, and will examine cases in which defendants used the NCRMD plea. This paper will show that while changes to the Canadian Criminal Code need to be made to clarify the criteria for an NCRMD defense, the defense is a very necessary part of the legal process in today's court systems.

The basic premise behind the Canadian NCRMD defense is that in order for a defendant to be found criminally responsible for his or her actions, he or she must have an operating mind, and a mind that is not hindered by disease. Thus, defendants who are incapable of making a rational choice due to mental disorder or immaturity cannot be held responsible for their actions. In these cases, the NCRMD defense may be attempted (Department of Justice, Canada, 2002).

This concept is not a new idea, as even Jewish law in the second century stated that those who harm mentally deficit individuals would be found culpable, but those who are deficient would not be held responsible for their actions (Weiner, 1980). By the sixth century, Justinian code had altered this idea to include the concept that madmen and children were not capable of committing of wrongful intention. According to the code, since to commit a wrong requires intention, those who are unable to form intension cannot be held responsible (Carrither, 1985).

According to a response by the Canadian Federal Government to the 14th Report of the Standing Committee on Justice and Human Rights, which reviewed the Mental Disorder Provisions of the Criminal Code, the current NCRMD defense can be traced back to English common law and the M'Naughten Rules (Department of Justice, Canada, 2002).

During the 14th century, King Edward III was the first on record to declare madness as a total defense to a criminal charge, and by 1505, a jury in England had acquitted the first defendant on record on the grounds of insanity. According to records, by the late 1500's, the concept of a lack of guilty mind, or intent, was well established in the English courts (Aaronson, 1998).

The common law of England also stipulated a course of action for those found to be "madmen." According to common law, those found to be insane were not allowed to roam freely through the kingdom. Without proper control, the fear remained that the individual would harm other people. Instead, those without the ability for reason were to be confined until they recovered their senses (Hunter, 1963).

In 1610, Edward Coke produced the first formalized report of common law in England, which included on the insanity defense. The document, known as the Coke Reports, was a written record of common law in England that would influence decisions of insanity cases throughout history in countries all over the world. Within the Coke Reports, Lord Coke laid out four classes of "non compos mentis," or not of sane mind, peoples. Coke's classes included idiota (nativity by perpetual infirmity), those who have lost their reasoning due to sickness, grief, or accident, lunaticus (those who alternate between having understanding of action and not), and finally, those whose understanding is permanently defunct by instability of the mind (Hucker, 2003).

However, it was not until the trial of Edward Arnold in 1723 that the English courts set a standard for determining responsibility in insanity defense cases.

While Coke and others had previously set precedence for the defense of insanity, there had not yet been a clear determination of the levels of insanity. Edward Arnold was on trial for shooting Lord Onslow, and was claiming insanity as his defense. According to the judge in the case, a defendant must be completely depraved of his or her understanding and memory, to the extent that he or she does not know what they are doing, and the defendant must not know right from wrong in order to be able to pursue an insanity defense (Aaronson, 1988). This became know as the "Wild Beast" test, the first true set of precedence for determining state of mind.

The concept that the insane had to be completely deprived of all mental faculties was not challenged until the early 1800's in England, with the case of James Hadfield. Hadfield had fired at King George III, and was tried for high treason. However, the defense noted that Hadfield believed himself to be the savior of mankind, and that God had commanded him to kill. While he had admittedly shown full control over his mental faculty when he purchased the gun, concealed his weapon, and planned his crime, the defense argued that Hadfield's mental condition was the cause of the shooting, not Hadfield himself. For the first time, the argument for insanity was not based on complete loss of mental faculty, nor on the knowledge of good and evil, but was instead presented as a direct cause for a criminal action. The judge agreed with the defense, as did the jury, and Hadfield was acquitted (Rex v. Hadfield, 1800).

Aside from the English common law issues raised through trials such as Hadfield, the Canadian defense of NCRMD is also based, at least in part, on the M'Naughten rules. In 1843, Daniel M'Naughten was on trial for killing an assistant to the prime minister of England. Nine separate medical witnesses who testified in the trial deemed M'Naughten a paranoid schizophrenic, who suffered from extreme paranoid delusions of persecution. In the judge's instructions to the jury, he mentioned that if the jury did not believe the defendant know he was committing an evil act, and if they did not think he was sensible at the time, then they should acquit him, which they did (Aaronson, 1988).

The uproar that followed produced an inquiry by the House of Lords.. The 14 judges that responded effectively created the rules to judge criminal responsibility for many nations, which are still in use today. The M'Naughten rules simply state that anyone who lacks the ability to know right from wrong also lack criminal capacity. This is true, according to the House, even if the individual falls short of total deprivation of mind or memory (Aaronson, 1988).

The Canadian NCRMD defense is based on these incidents. Section 16 of the Criminal Code outlines that a person is not criminally responsible for any act made while suffering from a mental disorder that impedes the individuals ability to appreciate the nature of the act, or of knowing the act was wrong. Additionally, Section 16 declares that all persons are assumed not to suffer from mental disorder unless proved otherwise. To further clarify, Section 2 defines a mental disorder as a "disease of the mind," which can include any mental abnormality which causes impairment, other than self-intoxication (Criminal Code of Canada, 1992).

Once either the defense or the prosecution has raised the issue of a defendant's mental state, the court determines whether the individual is fit to stand trial. The Criminal Code defines unfitness as an inability to conduct a defense at any stage of the proceedings, or to instruct council. To be fit to stand trial, the defendant needs only to be able to recount the necessary facts related to the case in a way that the attorneys can present the case (R v. Taylor, 1992). To determine the fitness issue, an assessment is ordered.

During this assessment, not to last more than 30 days, the defendant is examined by one or more qualified experts to determine if he or she is fit to stand trial, based on whether or not the defendant is able to participate in his or her own defense. If found fit to stand trial, the original trial will continue. If found to be unfit, the jury is dismissed, and the judge must determine if the defendant is to be released conditionally, referred to a treatment facility, or if the Canadian Review Board will be responsible for the decision on disposition. A decision of unfitness does not excuse the defendant from trial. An inquiry, held not more than two years following the unfit verdict, and every two years thereafter, will determine the point at which the defendant becomes fit to stand trial, or is acquitted, if the defendant is never able to stand trial (Consolidated Statutes and Regulations 672.2, 1992).

If the accused is found fit to stand trial, the defense can still attempt to plea NCRMD. In order to be found not criminally responsible, the judge or jury must find that the defendant did commit the offense, but that a mental disorder at the time of the offense prevented him or her from appreciating the quality and nature of the offense, and prevented him or her from knowing the act was wrong (Department of Justice, Canada, 2002). To determine criminal responsibility under the NCRMD plea, there are nine main factors. These include evidence of a mental disorder, the motive for the crime, the planning and preparation of the crime, evidence of impaired functioning, the actions following the crime, past criminal history, past psychiatric history, delusions or hallucinations, and knowledge of right from wrong at the time of the offense (Hucker, 2003).

If the defendant is found to be not criminally responsible, either the judge, or a Review Board makes a disposition. If the judge gives the disposition, and if the judge determines that the defendant is to be discharged unconditionally, and is not a threat to society, no further action is necessary. On the other hand, if the judge determined that the defendant is to be discharged with conditions, or is to be placed in a mental health facility, the decision is to be reviewed by a Review Board no less than 90 days following the disposition. The Review Board can also unconditionally or conditionally release the offender, or place the offender in hospitalization. Each year following the disposition, the Review Board reevaluates the defendant's situation, and makes changes accordingly (Consolidated Statutes and Regulations 672.54, 1992).

It is important to note that prior to changes made to the Criminal Code in 1992, under Parliament Bill C-30, defendants successful in the NCRMD defense were automatically confined to an institution for an undetermined length of time. With Bill C-30, time limits were placed on the fitness to stand trial issue, Review Board's were established, and limits were placed on the amount of time a defendant can be confined without review. Additionally, those defendants later transferred to a prison institution, pending their recovery, are allowed to have their sentences reduced by the amount of time spent in a mental health institution (Roesch, 1997).

There have been many challenges to the Criminal Code in relation to the NCRMD defense, in part due to the original definitions and clarifications set forth in Section 16 of the Code, and in some cases, these challenges have provided changes or created precedence for other cases. Each case shows how complex the issue of mental illness in relation to criminal responsibility can be, and how difficult the defense can be to prove to a jury. While the defense is an accepted one in Canadian law, it is one that is consistently challenged.

One example of this is the case of R. v. Chaulk in 1990. In the case, the defendants Robert Chaulk and Francis Morrissette were found guilty of first-degree murder, after the jury rejected an insanity defense. The defendants were tried in adult court, at ages 15 and 16, and expert witnesses had testified that the two individuals suffered from paranoid psychosis. The defendants did know Canadian Law, and thus knew the act was considered illegal, but because of their psychosis, felt the laws did not applied (R. v. Chaulk, 1990).

The defendants appealed their lower court ruling, based on the idea that Sections 16(4) of the Code violated the Canadian Charter of Rights and Freedoms. In addition, the appeal stated that the judge in the case had misstated in his charge to the jury regarding the effects of mental impairment on the ability to plan and deliberate. When the Court of Appeal dismissed the appeal, the defendants appealed to the Supreme Court of Canada, who allowed the appeal (R. v. Chaulk, 1990).

The final decision of the Court found that Section 16(4) of the Code, which states that all parties are presumed to be sane until proven otherwise, did violate the Canadian Charter of Rights Section 11(d), which states that the burden of proof is on the State. However, the Court noted that the violation was justifiable, under Section 1 of the Charter, since the objective of s. 16(4) was to avoid placing the burden of proof of providing sanity on the Crown (R. v. Chaulk, 1990).

Perhaps more importantly was the decision about the meaning of "wrong," as set forth in s. 16(2). The trial judge in the lower court had instructed the jury to interpret "wrong" as "legally wrong" when determining if the defendant knew that the act was "wrong." In the appeal, the defendants argued that the correct interpretation was "morally wrong" (R. v. Chaulk, 1990). Since the defendants in the case obviously understand the legal laws of Canada, but did not find them morally relative to themselves, this was an imperative distinction. The Court agreed, setting precedence for future courts to interpret the law as "morally wrong" rather than "legally wrong," an undeniably crucial discernment.

Another Supreme Court case that further clarified Part XX.1 of the Criminal Code, and influenced later decisions was that of Winko v. British Columbia.

In the case, Winko was charged with attacking two pedestrians in 1983, but was found NCRMD, and was institutionalized. In 1995, the Review Board granted Winko conditional discharge. Winko appealed, seeking an absolute discharge, claiming that XX.1 of the Criminal Code violated his rights under the Charter of Rights and Freedoms (Winko v. British Columbia, 1999).

Winko's appeal was denied. In the Court's decision, they noted that the goal of the Review Board was to ensure the public safety, concerning decisions made about a defendant's threat to public safety. While s. 7 of the Charter does protect against unequal treatment based on stereotypes, and their right to be treated with "dignity," the Court determined that an NCR accused was treated differently not based on stereotype, but on the characteristics of the persons mental illness. Additionally, the Court ruled that this differential treatment was not discriminatory, but rather, an enforcement of XX.1 of the Code, which promises differential treatment based on the needs of the NCRMD defendant. The goal of the Code, according to the Court, was to provide care and to attempt to assist the accused, and that limits placed on the freedoms of that individual are to protect society, not for penal purposes (Winko v. British Columbia, 1999).