Mental disorder defence
Encyclopedia
In the criminal law
s of Australia
and Canada
, the defence of mental disorder (sometimes called the defence of mental illness) is a legal defence by excuse
, by which a defendant may argue they should not be held criminally liable for breaking the law because they were mentally ill at the time of the alleged criminal actions.
These are a statutory version of the M'Naghten Rules
which define insanity in most common law
countries, but they were renamed due to the stigma that the label of "insanity" inflicts on the accused.
, the Criminal Law Consolidation Act 1935 (SA) provides that:
269C—Mental competence
A person is mentally incompetent to commit an offence if, at the time of the conduct alleged to give rise to the offence, the person is suffering from a mental impairment and, in consequence of the mental impairment— does not know the nature and quality of the conduct; or does not know that the conduct is wrong; or is unable to control the conduct.
269H—Mental unfitness to stand trial
A person is mentally unfit to stand trial on a charge of an offence if the person's mental processes are so disordered or impaired that the person is— unable to understand, or to respond rationally to, the charge or the allegations on which the charge is based; or unable to exercise (or to give rational instructions about the exercise of) procedural rights (such as, for example, the right to challenge jurors); or unable to understand the nature of the proceedings, or to follow the evidence or the course of the proceedings.
In Victoria
the current defence of mental impairment was introduced in the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 which replaced the common law defence of insanity and indefinite detention at the governor's pleasure with the following:
These requirements are almost identical to the M'Naghten Rules, substituting "mental impairment" for "disease of the mind".
which states, in part:
To establish a claim of mental disorder the party raising the issue must show on a balance of probabilities first that the person who committed the act was suffering from a "disease of the mind", and second, that at the time of the offence they were either 1) unable to appreciate the "nature and quality" of the act, or 2) did not know it was "wrong".
The meaning of the word "wrong" was determined in the Supreme Court case of R. v. Chaulk
[1990] 3 S.C.R. which held that "wrong" was NOT restricted to "legally wrong" but to "morally wrong" as well.
after the previous scheme was found unconstitutional by the Supreme Court of Canada
in R. v. Swain
. The new provisions also replaced the old insanity defence
with the current mental disorder defence.
Once a person is found NCR, he or she will have a hearing by a Review Board within 45 days (90 days if the court extends the delay). A Review Board is established under Part XX.1 of the Criminal Code of Canada
and is composed of at least three members, a person who is a judge or eligible to be a judge, a psychiatrist and another medical expert. Parties at a Review Board hearing are usually the accused, the Crown and the hospital responsible for the supervision or assessment of the accused. A Review Board is responsible for both accused persons found NCR or accused persons found unfit to stand trial on account of mental disorder. A Review Board must consider two questions: whether the accused is a "significant threat to the safety of the public" and, if so, what the "least onerous and least restrictive" restrictions on the liberty of the accused should be in order to mitigate such a threat. Proceedings before a Review Board are inquisitorial rather than adversarial. Often the Review Board will be active in conducting an inquiry. Where the Review Board is unable to conclude that the accused is a significant threat to the safety of the public, the review board must grant the accused an absolute discharge, an order essentially terminating the jurisdiction of the criminal law over the accused. Otherwise the Review Board must order that the accused be either discharged subject to conditions or detained in a hospital, both subject to conditions. The conditions imposed must be the least onerous and least restrictive necessary to mitigate any danger the accused may pose to others.
Since the Review Board is empowered under criminal law powers under s. 91(27) of the Constitution Act, 1867
the sole justification for its jurisdiction is public safety. Therefore the nature of the inquiry is the danger the accused may pose to the public safety rather than whether the accused is "cured." For instance, many "sick" accused persons are discharged absolutely on the basis that they are not a danger to the public while many "sane" accused are detained on the basis that they are dangerous. Moreover the notion of "significant threat to the safety of the public" is a "criminal threat." This means that the Review Board must find that the threat posed by the accused is of a criminal nature.
While proceedings before a Review Board are less formal than in court, there are many procedural safe-guards available to the accused given the potential indefinite nature of Part XX.1. Any party may appeal against the decision of a Review Board.
In 1992 when the new mental disorder provisions were enacted, Parliament included "capping" provisions which were to be enacted at a later date. These capping provisions limited the jurisdiction of a Review Board over an accused based on the maximum potential sentence had the accused been convicted (e.g. there would be a cap of 5 years if the maximum penalty for the index offence is 5 years). However, these provisions were never proclaimed into force and were subsequently repealed.
A Review Board must hold a hearing every 12 months (unless extended to 24 months) until the accused is discharged absolutely.
struck down the provision restricting the availability of an absolute discharge to an accused person who is deemed both "permanently unfit" and not a significant threat to the safety of the public. Presently a Review Board may recommend a judicial stay of proceedings in the event that it finds the accused both "permanently unfit" and non-dangerous. The decision is left to the court having jurisdiction over the accused.
An additional requirement for an unfit accused is the holding of a "prima facie case" hearing every two years. The Crown must demonstrate to the court having jurisdiction over the accused that it still has sufficient evidence to try the accused. If the Crown fails to meet this burden then the accused is discharged and proceedings are terminated. The nature of the hearing is virtually identical to that of a preliminary hearing
.
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
s of Australia
Australia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
and Canada
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
, the defence of mental disorder (sometimes called the defence of mental illness) is a legal defence by excuse
Excuse
In jurisprudence, an excuse or justification is a defense to criminal charges that is distinct from an exculpation. In this context, "to excuse" means to grant or obtain an exemption for a group of persons sharing a common characteristic from a potential liability. "To justify" as in justifiable...
, by which a defendant may argue they should not be held criminally liable for breaking the law because they were mentally ill at the time of the alleged criminal actions.
These are a statutory version of the M'Naghten Rules
M'Naghten Rules
The M'Naghten rules were a reaction to the acquittal of Daniel McNaughton. They arise from the attempted assassination of the British Prime Minister, Robert Peel, in 1843 by Daniel M'Naghten. In fact, M'Naghten fired a pistol at the back of Peel's secretary, Edward Drummond, who died five days later...
which define insanity in most common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
countries, but they were renamed due to the stigma that the label of "insanity" inflicts on the accused.
Australia
In Australia there are nine law units. All may have varying rules (see http://www.aija.org.au/ac03/papers/DavidGrace.rtf). In South AustraliaSouth Australia
South Australia is a state of Australia in the southern central part of the country. It covers some of the most arid parts of the continent; with a total land area of , it is the fourth largest of Australia's six states and two territories.South Australia shares borders with all of the mainland...
, the Criminal Law Consolidation Act 1935 (SA) provides that:
269C—Mental competence
A person is mentally incompetent to commit an offence if, at the time of the conduct alleged to give rise to the offence, the person is suffering from a mental impairment and, in consequence of the mental impairment— does not know the nature and quality of the conduct; or does not know that the conduct is wrong; or is unable to control the conduct.
269H—Mental unfitness to stand trial
A person is mentally unfit to stand trial on a charge of an offence if the person's mental processes are so disordered or impaired that the person is— unable to understand, or to respond rationally to, the charge or the allegations on which the charge is based; or unable to exercise (or to give rational instructions about the exercise of) procedural rights (such as, for example, the right to challenge jurors); or unable to understand the nature of the proceedings, or to follow the evidence or the course of the proceedings.
In Victoria
Victoria (Australia)
Victoria is the second most populous state in Australia. Geographically the smallest mainland state, Victoria is bordered by New South Wales, South Australia, and Tasmania on Boundary Islet to the north, west and south respectively....
the current defence of mental impairment was introduced in the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 which replaced the common law defence of insanity and indefinite detention at the governor's pleasure with the following:
- the accused was suffering from a mental impairment; and
- the mental impairment affected the accused so he or she either did not understand the nature and quality of the conduct, or did not know that it was wrong.
These requirements are almost identical to the M'Naghten Rules, substituting "mental impairment" for "disease of the mind".
Canada
The defence of mental disorder is codified in section 16 of the Criminal Code of CanadaCriminal Code of Canada
The Criminal Code or Code criminel is a law that codifies most criminal offences and procedures in Canada. Its official long title is "An Act respecting the criminal law"...
which states, in part:
- 16. (1) 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.
To establish a claim of mental disorder the party raising the issue must show on a balance of probabilities first that the person who committed the act was suffering from a "disease of the mind", and second, that at the time of the offence they were either 1) unable to appreciate the "nature and quality" of the act, or 2) did not know it was "wrong".
The meaning of the word "wrong" was determined in the Supreme Court case of R. v. Chaulk
R. v. Chaulk
R. v. Chaulk, [1990] 3 S.C.R. 1303 is a leading decision of the Supreme Court of Canada on the interpretation and constitutionality of section 16 of the Criminal Code of Canada which provides for a mental disorder defence....
[1990] 3 S.C.R. which held that "wrong" was NOT restricted to "legally wrong" but to "morally wrong" as well.
Post Verdict Conditions
The current legislative scheme was created by the Parliament of CanadaParliament of Canada
The Parliament of Canada is the federal legislative branch of Canada, seated at Parliament Hill in the national capital, Ottawa. Formally, the body consists of the Canadian monarch—represented by her governor general—the Senate, and the House of Commons, each element having its own officers and...
after the previous scheme was found unconstitutional by the Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
in R. v. Swain
R. v. Swain
R. v. Swain, [1991] 1 S.C.R. 933 is a leading constitutional decision of the Supreme Court of Canada on certain rights of the mentally ill in their criminal defence...
. The new provisions also replaced the old insanity defence
Insanity defence
In criminal trials, the insanity defense is where the defendant claims that he or she was not responsible for his or her actions due to mental health problems . The exemption of the insane from full criminal punishment dates back to at least the Code of Hammurabi. There are different views of the...
with the current mental disorder defence.
Once a person is found NCR, he or she will have a hearing by a Review Board within 45 days (90 days if the court extends the delay). A Review Board is established under Part XX.1 of the Criminal Code of Canada
Criminal Code of Canada
The Criminal Code or Code criminel is a law that codifies most criminal offences and procedures in Canada. Its official long title is "An Act respecting the criminal law"...
and is composed of at least three members, a person who is a judge or eligible to be a judge, a psychiatrist and another medical expert. Parties at a Review Board hearing are usually the accused, the Crown and the hospital responsible for the supervision or assessment of the accused. A Review Board is responsible for both accused persons found NCR or accused persons found unfit to stand trial on account of mental disorder. A Review Board must consider two questions: whether the accused is a "significant threat to the safety of the public" and, if so, what the "least onerous and least restrictive" restrictions on the liberty of the accused should be in order to mitigate such a threat. Proceedings before a Review Board are inquisitorial rather than adversarial. Often the Review Board will be active in conducting an inquiry. Where the Review Board is unable to conclude that the accused is a significant threat to the safety of the public, the review board must grant the accused an absolute discharge, an order essentially terminating the jurisdiction of the criminal law over the accused. Otherwise the Review Board must order that the accused be either discharged subject to conditions or detained in a hospital, both subject to conditions. The conditions imposed must be the least onerous and least restrictive necessary to mitigate any danger the accused may pose to others.
Since the Review Board is empowered under criminal law powers under s. 91(27) of the Constitution Act, 1867
Constitution Act, 1867
The Constitution Act, 1867 , is a major part of Canada's Constitution. The Act created a federal dominion and defines much of the operation of the Government of Canada, including its federal structure, the House of Commons, the Senate, the justice system, and the taxation system...
the sole justification for its jurisdiction is public safety. Therefore the nature of the inquiry is the danger the accused may pose to the public safety rather than whether the accused is "cured." For instance, many "sick" accused persons are discharged absolutely on the basis that they are not a danger to the public while many "sane" accused are detained on the basis that they are dangerous. Moreover the notion of "significant threat to the safety of the public" is a "criminal threat." This means that the Review Board must find that the threat posed by the accused is of a criminal nature.
While proceedings before a Review Board are less formal than in court, there are many procedural safe-guards available to the accused given the potential indefinite nature of Part XX.1. Any party may appeal against the decision of a Review Board.
In 1992 when the new mental disorder provisions were enacted, Parliament included "capping" provisions which were to be enacted at a later date. These capping provisions limited the jurisdiction of a Review Board over an accused based on the maximum potential sentence had the accused been convicted (e.g. there would be a cap of 5 years if the maximum penalty for the index offence is 5 years). However, these provisions were never proclaimed into force and were subsequently repealed.
A Review Board must hold a hearing every 12 months (unless extended to 24 months) until the accused is discharged absolutely.
Unfit Accused
An accused who is found to be unfit to stand trial is subject to the jurisdiction a Review Board. While the considerations are essentially the same, there are a few provisions which apply only to unfit accused. A Review Board must determine whether the accused it fit to stand trial. Regardless of the determination, the Review Board must then determine what conditions should be imposed on the accused, considering both the protection of the public and the maintenance of the fitness of the accused (or conditions which would render the accused fit). Previously an absolute discharge was unavailable to an unfit accused. However, in R. v. Demers, the Supreme Court of CanadaSupreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
struck down the provision restricting the availability of an absolute discharge to an accused person who is deemed both "permanently unfit" and not a significant threat to the safety of the public. Presently a Review Board may recommend a judicial stay of proceedings in the event that it finds the accused both "permanently unfit" and non-dangerous. The decision is left to the court having jurisdiction over the accused.
An additional requirement for an unfit accused is the holding of a "prima facie case" hearing every two years. The Crown must demonstrate to the court having jurisdiction over the accused that it still has sufficient evidence to try the accused. If the Crown fails to meet this burden then the accused is discharged and proceedings are terminated. The nature of the hearing is virtually identical to that of a preliminary hearing
Preliminary hearing
Within some criminal justice systems, a preliminary hearing is a proceeding, after a criminal complaint has been filed by the prosecutor, to determine whether there is enough evidence to require a trial...
.
See also
- Insanity defense
- Intoxication defence
- Diminished responsibilityDiminished responsibilityIn criminal law, diminished responsibility is a potential defense by excuse by which defendants argue that although they broke the law, they should not be held fully criminally liable for doing so, as their mental functions were "diminished" or impaired. The defense's acceptance in American...
- Settled insanitySettled insanitySettled insanity is defined as a permanent or "settled" condition caused by long-term substance abuse and differs from the temporary state of intoxication...