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PRB 99-22E
MENTAL DISORDER
AND CANADIAN CRIMINAL LAW
Prepared by:
Marilyn Pilon
Law and Government Division
5 October 1999
Revised 22 January 2002
TABLE
OF CONTENTS
BACKGROUND
HISTORY
1986
DRAFT PROPOSALS FOR REFORM
COMPLIANCE
WITH THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS
BILL
C-30
A. Substantive and Procedural Changes
B. Unproclaimed Amendments
1. "Capping" of Dispositions
2.
Dangerous Mentally Disordered Accused (DMDA)
3.
Hospital Orders
OUTSTANDING
ISSUES
A. Review Board Powers
B. Proclamation of Inoperative Sections
C. Related Issues
1. Non-Insane Automatism
2. The "Fitness"
Standard
3. Definition of Mental Disorder
CONCLUSION
MENTAL DISORDER AND CANADIAN
CRIMINAL LAW
BACKGROUND
Canadian courts have long
had the power, in prescribed circumstances, to exempt an individual from
criminal responsibility for actions performed while he or she was incapacitated
by a mental disorder. That power rests on “the basic principle of
Canadian criminal law that to be convicted of a crime, the state must
prove not only a wrongful act, but also a guilty mind.” (1)
Consequently, Canada’s Criminal Code has
always provided that persons will not be held criminally liable for their
actions if their mental state at the time rendered them “incapable
of appreciating” the nature and quality of the act and knowing that
it was wrong. In such a case, however, it may be necessary for the
state to exercise some level of control over those mentally disordered
individuals who are believed to pose a threat to others. Thus, Parliament
is faced with the challenge of achieving a balance between individual
rights and public safety. This paper will trace the development
of what used to be known as the “insanity” defence in Canadian
law and review a number of outstanding issues relating to the criminal
justice system’s treatment of mentally disordered persons.
HISTORY
Based on rules promulgated
in 1843 by the British House of Lords in the M’Naghten case,
the common law defence of “insanity” was first incorporated
into Canadian legislation in the Criminal Code, 1892. (2) Originally, the Criminal
Code disallowed conviction of any accused who, because of a “natural
imbecility, or disease of the mind,” was “incapable of appreciating
the nature and quality of the act or omission,” and of knowing that
it was wrong.(3) The same section incorporated
a legal presumption of sanity, however, and an acquittal on account of
insanity resulted in detention “in strict custody” at the pleasure
of the Lieutenant Governor of the province. No matter what the mental
status of an accused at the time of the alleged offence, anyone found
“unfit” to stand trial on account of insanity would also be
held at the pleasure of the Lieutenant Governor.
In 1975, the Law Reform
Commission of Canada discussed the need for reform of the treatment accorded
by the criminal justice system to mentally disordered accused, citing
the dangers of “unclear language, improper attitudes, and the need
for practical solutions to social problems.” (4)
The Commission cautioned against “a blanket assumption that
all mentally ill persons are prone to violence” and argued that “[r]estriction
of the freedom of a mentally disordered accused or offender should only
be imposed when justified.”(5) Among
several suggestions for the treatment of mentally disordered accused made
in the Commission’s subsequent Report, was one that dispositions
in such cases “be made openly, according to known criteria, be reviewable
and of determinate length.” Specifically, instead of the Lieutenant
Governor warrant scheme, the Commission favoured a hearing process to
determine the appropriate disposition for persons found not guilty by
reason of insanity.(6)
In 1982, the Department
of Justice initiated the Mental Disorder Project as part of a national
Criminal Law Review.(7) A discussion
paper distributed by the Department the following year acknowledged numerous
shortcomings of the mental disorder provisions of the Criminal Code,
calling them “fraught with ambiguities, inconsistencies, omissions,
arbitrariness, and often a general lack of clarity, guidance or direction.”(8)
The question of compliance with the Canadian Charter
of Rights and Freedoms was also raised. For example, the paper
questioned the fairness of a scheme that allowed persons found “unfit”
to stand trial to be confined indefinitely without the Crown having to
establish a prima facie case of guilt. Likewise, concerns
were raised about a scheme that mandated the automatic detention of mentally
disordered accused, with no requirement for a hearing or proof that he
or she posed a danger to others.
1986 DRAFT PROPOSALS FOR REFORM
The Department of Justice
released the Final Report of the Mental Disorder Project in September
1985. Many of the recommendations it contained were incorporated
into a draft bill that was tabled by then Minister of Justice John Crosbie
on 25 June 1986. (9) The bill contained
a number of amendments aimed at modernizing language, streamlining procedures,
and protecting the Charter rights of accused persons. These proposals
quickly became a focus for further consultation with the provinces and
organizations in both the public and private sectors. Among a number
of major reforms, the bill proposed changing the name of the defence to
“mental disorder,” giving the court broader jurisdiction to
order psychiatric assessments, and limiting the evidentiary use of statements
made in the course of such assessments. The bill also proposed criteria
for determining “fitness” and would have replaced the Lieutenant
Governor warrant scheme with boards of review in each province.
One of the more controversial
proposals in the draft bill was aimed at limiting the length of time for
which a mentally disordered accused could be held. So-called “caps”
would be life, ten years and two years, depending upon the maximum penalty
available for the offence charged. (10)
The provincial Attorneys General, in particular, were concerned
that capping periods of detention “would lead to the mandatory release
of dangerous persons when they reached their outer limit of detention
under the authority of the criminal law.”(11) A
proposal to allow the courts to order up to 60 days’ psychiatric
treatment as part of an offender’s term of imprisonment also generated
criticism. It was argued that implementation of these “hospital
orders” provisions would impose a significant financial burden on
some provinces.(12)
Consultations on these legislative
proposals continued through the 1988 general election, but by this time
the Ontario Court of Appeal decision in R. v. Swain(13)
was under appeal to the Supreme Court of Canada.
COMPLIANCE WITH THE CANADIAN CHARTER OF
RIGHTS AND FREEDOMS
Although a two-thirds majority
of the Ontario Court of Appeal had upheld the legislation and common law
practices then affecting the defence of insanity, this decision did not
stand. On 2 May 1991, the Supreme Court of Canada found that the
common law rule allowing the Crown to raise evidence of insanity, over
the objections of the accused, infringed Swain’s section 7 Charter
rights in a way not justified by section 1. Likewise, Criminal
Code section 542(2), mandating automatic detention of persons found
not guilty by reason of insanity, was found to infringe sections 7 and
9 of the Canadian Charter of Rights and Freedoms in a manner not
saved by section 1. (14) In
support of that conclusion, the Supreme Court of Canada pointed out that
the indeterminate nature of the detention rendered the effect of the legislation
“disproportionate” to its objectives. Because declaring
section 542(2) invalid would compel the release of “all insanity
acquitees, including those who may well be a danger to the public,”
the Court imposed a six-month period of temporary validity. That
transitional period was later extended by the Court to 5 February 1992,
in order to give Parliament sufficient time to pass remedial legislation.
BILL C-30 (15)
Unable to achieve unanimous
consent to table a bill before the 1991 summer recess, then Minister of
Justice Kim Campbell published the bill as "Proposals to amend the
Criminal Law concerning mental disorder."(16)
Those proposals, in the form of Bill C-30, were subsequently
tabled on 16 September 1991 (with most provisions coming into force in
1992). Unlike the 1986 Draft Bill, Bill C-30 included consequential
amendments to the Young Offenders Act and the National Defence
Act.
A. Substantive
and Procedural Changes
In addition to important
new definitions, Bill C-30 created a whole new scheme for managing mentally
disordered accused under Part XX.1 of the Criminal Code.
First, the terminology of the former insanity defence was amended so as
to exempt from criminal liability persons who commit the act complained
of while suffering from “a mental disorder” (this term replaces
the previous “natural imbecility” or “disease of the mind”).
To reflect that amendment, the consequential verdict was also changed
from not guilty on “account of insanity” to “not criminally
responsible on account of mental disorder.” The scope of the
defence was also expanded to cover summary conviction as well as indictable
offences.
In addition, Bill C-30 provided
a new definition with criteria for determining whether an accused is “unfit
to stand trial,” something not previously spelled out in the Criminal
Code. Subject to limitations, the courts also have the power
to order involuntary treatment of a mentally disordered accused, for the
purposes of rendering him or her fit to stand trial. Furthermore,
the case of an unfit accused must be reviewed by a court every two years,
in order to determine whether sufficient evidence exists to bring the
individual to trial. If the evidence is not sufficient, the accused
is entitled to an acquittal. (17)
Upon finding an accused
not criminally responsible on account of mental disorder, a court is no
longer obliged to order him or her held in strict custody. Instead,
the court has the option of choosing an appropriate disposition or deferring
that decision to a Review Board. (18) In either case, the
permissible dispositions include detention in hospital, discharge subject
to conditions, or absolute discharge. However, the legislation requires
courts and Review Boards to impose the least restrictive or onerous disposition
necessary, bearing in mind prescribed criteria such as public safety,
the mental condition of the accused, and the goal of his or her reintegration
into society. In this way, the role of the Lieutenant Governor in
Council was abolished and the relevant decision-making powers transferred
to Review Boards in each jurisdiction.(19)
Bill C-30 also mandated an annual review of any Board disposition other
than an absolute discharge.
Bill C-30 specified the
circumstances under which the courts can order a psychiatric assessment,
either for the purposes of determining an accused’s fitness to stand
trial, or to provide evidence as to his or her mental state at the time
of the offence. Bill C-30 amendments also limited the evidentiary
use of statements made by an accused during the course of an assessment.
A number of amendments were
suggested during committee review of Bill C-30. For example, counsel
for the Ontario Board of Review argued that Review Boards should have
the authority to order assessments as well as treatment for unfit accused. (20) The Canadian Bar
Association wanted a narrower definition of “hospital” that
would require that any place so designated by a provincial government
be “equipped to provide treatment for mental disorders.”(21)
The Canadian Disability Rights Council was opposed to forced
treatment of “unfit” accused,(22)
while the Canadian Association for Community Living wanted the
definition of “mental disorder” to specifically exclude persons
with mental handicaps.(23) However,
the only significant amendment approved at committee stage was that calling
for a five-year “comprehensive review of the provisions and operation”
of the Act by a committee of the House of Commons.(24)
B. Unproclaimed
Amendments
1.
"Capping" of Dispositions
Among the more controversial
provisions of the bill were several that have not yet been proclaimed
in force. For example, Bill C-30 contained the same “capping”
provisions proposed in the 1986 draft legislation that would limit the
length of time that an unfit or mentally disordered accused could be detained.
The intention was that any accused still perceived to be dangerous at
the end of the statutory cap “could be involuntarily committed to
a secure hospital under the authority of the provincial mental health
legislation.” (25)
In order to allow time for any necessary changes to provincial
laws and administrative practices, however, the federal government proposed
delaying proclamation of the capping provisions. At the same time,
the transitional provisions of Bill C-30 specified that any existing Lieutenant
Governor warrants would continue in force until the capping provisions
had been proclaimed in force.
2. Dangerous Mentally
Disordered Accused (DMDA)
To address further concerns
about the capping provisions and the limitations of provincial civil commitment
laws, the federal government incorporated the “dangerous mentally
disordered accused” (DMDA) provisions into Bill C-30. They
were patterned on the “dangerous offender” scheme in the Criminal
Code that allows persons convicted of a serious personal injury offence
or certain sexual offences to be sentenced indeterminately. The
DMDA provisions were intended to enable the courts, in special circumstances,
to increase the applicable cap to a maximum of life. As with existing
dangerous offender provisions, the prosecutor would have to establish
that the accused had been convicted of a serious personal injury offence
and that past conduct suggested that he or she posed a threat or would
be likely to cause harm to others in the future. The transitional
provisions also called for the appointment of a “Commissioner”
to review the cases of individuals already subject to a Lieutenant Governor
warrant, to determine whether they would have qualified as a “dangerous
mentally disordered accused” under the proposed law. (26)
In the event of such a finding, the Commissioner would
then be empowered to order detention in custody “for a maximum period
of life.” Proclamation of the DMDA provisions were also delayed
because they would not be required until the capping provisions came into
force.
3. Hospital Orders
In its 1976 Report, the
Law Reform Commission argued that a therapeutic disposition should be
available for persons who are held criminally responsible for their actions
but who are, nevertheless, suffering from a mental disorder. Consequently,
the Commission recommended that sentencing judges be given the power to
order, where appropriate, “that a term of imprisonment be spent in
whole or in part in a psychiatric facility.” (27) When
proclaimed, the relevant provisions of Bill C-30 would give judges the
power to order detention in a treatment facility “as the initial
part of a sentence of imprisonment.” Up to 60 days’ treatment
could be ordered for an individual suffering from a mental disorder “in
an acute phase,” in order “to prevent further significant deterioration
of the mental or physical health of the offender, or to prevent the offender
from causing serious bodily harm to any person.” In response
to the concerns of some provincial governments about the onerous costs
of these provisions, their proclamation was also postponed “to allow
pilot projects to be conducted in two or three provinces so that empirical
data could be gathered on utilization and costs.”(28)
The hospital orders provisions, however, remain unproclaimed
to date.
OUTSTANDING ISSUES
In addition to those provisions
that have yet to be proclaimed in force, some other issues or criticisms
prompted by Bill C-30 have yet to be resolved.
A. Review Board Powers
For example,
it has been argued that provincial Review Boards require more powers in
order to operate more effectively; in particular, a Review Board should
have the power to order that an offender be assessed, where necessary,
prior to a review hearing to ensure that it has sufficient information
to render a fair and meaningful disposition. In addition, some
have asked whether failure to comply with release conditions should be
made an offence, so that there could be swift intervention in appropriate
cases. It has also been suggested that Review Boards should have
the power to discharge an unfit accused, presumably to prevent an individual
from being subject to supervision long after he or she would have been
released from any prison term that could have been imposed in the event
of a conviction.
B. Proclamation
of Inoperative Sections
It may be that provincial
governments would still be reluctant to see the capping provisions proclaimed,
along with the companion DMDA scheme. Some mental health advocates
and the Canadian Bar Association were not entirely supportive of the DMDA
provisions; however, it seems likely that they would continue to favour
limiting periods of supervision through capping. It may be that
the Supreme Court of Canada’s decision in R v. Winko has
removed much of Parliament’s incentive to bring those sections of
the Criminal Code into force. In the Winko case, a
unanimous Supreme Court found that the potentially indefinite period of
supervision mandated in Part XX.1 does not offend section 15 of the Charter.
The court compared the fate of persons convicted of a crime with the fate
of mentally disordered accused and found that “[b]ecause the NCR
accused’s liberty is not restricted for the purpose of punishment,
there is no corresponding reason for finitude.” (29)
Parliament
may face continuing pressure from advocates and interest groups to proclaim
the “hospital orders” provisions of Bill C-30, although the
Supreme Court of Canada decision in Knoblauch makes clear that
treatment orders are already available as part of a conditional sentence.(30)
It remains unclear whether
provincial governments will continue to oppose granting judges the authority
to direct the placement of mentally disordered offenders upon conviction,
even if only for a fixed treatment period.
C. Related Issues
In addition to the foregoing,
a handful of outstanding issues were not dealt with in Bill C-30.
1. Non-Insane Automatism
At committee stage, Law
Professor Gerald Ferguson called for a codification of the defence of
automatism, or at least a redrafting of Bill C-30 to distinguish between
automatism and insanity.(31) Automatism is
a common law defence that refers to “a state in which the accused
can be said to have lost control over his or her conduct because of a
mental disorder, a physical illness or condition, a blow to the head,
or a psychological shock.”(32) Where the source
of automatism lies in a mental disorder, the accused is dealt with under
Part XX.1 of the Criminal Code. Where the source is not a
mental illness, the accused is entitled to an acquittal, an outcome that
may lead to public safety concerns. In the wake of some controversy
arising out of a 1992 Supreme Court of Canada decision upholding an acquittal
based on the defence of non-insane automatism, draft Criminal Code
amendments were circulated in June 1993. (33) These draft amendments would have defined automatism, allowed
for a verdict of “not criminally responsible on account of automatism,”
and provided the same range of dispositions now available for mentally
disordered accused.(34) The government changed as
a result of the 1993 federal election and these proposals were not introduced
in the House of Commons.
2.
The "Fitness" Standard
Section 2 of the Criminal
Code defines “unfit to stand trial” as unable “on account
of mental disorder” to conduct a defence because of an inability
“to understand the nature or object of the proceedings, understand
the possible consequences of the proceedings, or communicate with counsel.”
In R. v. Taylor, the Ontario Court of Appeal held that a
person’s fitness to stand trial requires only a “limited cognitive
capacity” to understand the process and to communicate with counsel,
as opposed to a higher test of “analytical capacity” or capacity
to make rational decisions beneficial to that person. (35)
The Supreme Court of Canada has since affirmed the limited cognitive ability
test for fitness in R. v. Whittle.(36)
It has been argued that this test sets the bar too
low and can result in an accused’s being tried, in spite of an inability
to act in his or her own best interests. However, those of the opposite
view argue that as the result of an “analytical capacity” test,
too many accused would be found unfit and would therefore have to languish
for years without benefit of having their situation determined at trial.
In 1998, the Criminal Section of the Uniform Law Conference of Canada
passed a resolution asking the Department of Justice to refer the question
of the appropriateness of the Criminal Code definition of unfitness
to the Federal-Provincial-Territorial Working Group on Mental Disorder.
A year later, the Working Group expressed the view that the existing Criminal
Code test and definition of unfitness “provide adequate protection
for unfit accused persons and adequate guidance to the courts.”
Consequently, the Working Group recommended no further amendments.(37)
3. Definition
of Mental Disorder
As recommended in the final
report of the Mental Disorder Project of the Department of Justice, Bill
C-30 “retained and modernized” the insanity test by removing
the phrases “in a state of natural imbecility” and “disease
of the mind” and substituting “mental disorder.” (38)
As was the case prior to Bill C-30, an accused still
has to establish that he or she was, as a result of a mental disorder,
“incapable of appreciating the nature and quality of the act or omission
or of knowing that it was wrong.” In 1990, the Supreme Court
of Canada reversed its previous position on the interpretation of “wrong”
in that context. In R. v. Chaulk, six of nine judges
held that this word meant “morally wrong,” as opposed to “legally
wrong.”(39)
That interpretation of section 16 was further refined by the
Supreme Court in a 1994 decision establishing that “[t]he accused
must possess the intellectual ability to know right from wrong in an abstract
sense. But he or she must also possess the ability to apply that
knowledge in a rational way to the alleged criminal act.”(40)
In the aftermath of Mr. Chaulk’s subsequent arrest
on new murder charges, some have questioned whether the broader interpretation
of mental disorder has operated to excuse too many people from criminal
liability.
CONCLUSION
Perhaps
because the 1991 amendments were the result of more than 15 years of study
and consultation and because the more controversial aspects of the legislation
remain unproclaimed, the implementation of Bill C-30 has resulted in only
limited criticism from interested groups and individuals. As previously
noted, however, some substantive and procedural issues remain unresolved.
These are likely to be among the matters canvassed by the committee that
is ultimately charged with reviewing the provisions and operation of Bill
C-30.
(1) Department of Justice, Mental
Disorder Amendments to the Criminal Code, Information Paper, September
1991, p. 4.
(2) Edwin A. Tollefson and Bernard Starkman,
Mental Disorder in Criminal Proceedings, Carswell, Canada, 1993,
p. 15. See also: Daniel M’Naghten’s Case (1843), 8 E.R.
718 (H.L.).
(3) Criminal Code, 1892, S.C. 1892,
Chap. 29, s. 11.
(4) Law Reform Commission of Canada,
The Criminal Process and Mental Disorder; Working Paper 14, 1975,
p. 17.
(5) Ibid. p. 19.
(6) Law Reform Commission of Canada,
Mental Disorder in the Criminal Process, March 1976, p. 38.
(7) In October 1979, federal and provincial
Ministers responsible for the criminal justice system in Canada agreed
to co-operate in a comprehensive review of Canada’s criminal law
and procedure, in the context of underlying policy considerations. See:
The Criminal Law in Canadian Society, Government of Canada, Ottawa,
August 1982, p. 10.
(8) Department of Justice, Mental
Disorder Project, Discussion Paper, September 1983, p. 3.
(9) Tollefson and Starkman (1993), p.
4.
(10) For example, the cap for a charge
of first degree murder would be life. The cap for charges involving danger
to the public would be the lesser of ten years or the maximum sentence
under the Criminal Code. In any other case, the cap would be the
lesser of two years or the maximum sentence for the offence charged.
(11) Tollefson and Starkman (1993),
p. 6.
(12) Ibid.
(13) R. v. Swain (1986),
50 C.R. (3rd) 97 (Ont. C.A.).
(14) R. v. Swain, [1991]
1 S.C.R. 933.
(15) An Act to amend the Criminal Code
(mental disorder) and to amend the National Defence Act and the Young
Offenders Act in consequence thereof, S. C. 1991, C. 43.
(16) Tollefson and Starkman (1993),
p. 10.
(17) Criminal Code, s. 672.33.
(18) Even when the court makes a disposition,
the Review Board must hold its own hearing to review any court disposition,
other than an absolute discharge, no later than 90 days afterward.
(19) Prior to the passage of Bill C-30,
Review Boards acted in an advisory capacity to the Lieutenant Governor
in Council, who was not bound by a board’s recommendations.
(20) Standing Committee on Justice
and the Solicitor General, Minutes of Proceedings and Evidence, 22 October
1991 (8:53).
(21) Canadian Bar Association, Submission
on Bill C-30, September 1991, p. 6.
(22) Standing Committee on Justice
and the Solicitor General, Minutes of Proceedings and Evidence, 23 October
1991 (10:7).
(23) Ibid (10:10).
(24) Tollefson and Starkman (1993),
p. 12.
(25) Department of Justice, Mental
Disorder Amendments to the Criminal Code, Information Paper, September
1991, p. 6.
(26) During second reading debate on
Bill C-30, then Minister of Justice Kim Campbell advised the House that
there were about 1,100 Canadians being held under Lieutenant Governor
warrants at that time. See Commons Debates, Friday, 4 October 1991,
p. 3295.
(27) Law Reform Commission of Canada
(March 1976), p. 25.
(28) Tollefson and Starkman (1993),
p. 144.
(29) Winko v. British Columbia
(Forensic Psychiatric Institute), [1999] 2 S.C.R. 625.
(30)
In R. v. Knoblauch, [2000] 2 S.C.R.
780, the Supreme Court upheld a conditional sentence of two years
less a day followed by three years of probation, both of which required
the offender to reside “in a locked secure psychiatric treatment
unit where he was currently receiving treatment, until a consensus of
psychiatric professionals made a decision to transfer him from that locked
unit.”
(31) Standing Committee on Justice
and the Solicitor General, Minutes of Proceedings and Evidence, 24 October
1991, (11:11).
(32) Standing Committee on Justice
and the Solicitor General, First Principles: Recodifying the General
Part of the Criminal Code of Canada, First Report, 3rd Session, 34th
Parliament, February 1993, p. 39.
(33) See: R. v. Parks,[1992]
2 S.C.R. 871. Parks was charged with murder after he had killed his mother-in-law
while he was sleepwalking. Although all agreed on the verdict, at least
three Supreme Court judges discussed the issue of future dangerousness
and McLachlin, J. noted, at p. 914, that "the possibility of supervisory
orders in this situation may be a matter which Parliament would wish to
consider in the near future."
(34) Proposals to Amend the Criminal
Code (General Principles), Minister of Justice, 28 June 1993.
(35) R. v. Taylor (1992),
77 C.C.C. (3d) 551 (Ont. C.A.).
(36) [1994] 2 S.C.R. 914.
(37) Uniform Law Conference of Canada,
Criminal Section, Fitness to Stand Trial, June 1999. This paper
was tabled, but not discussed, at the August 1999 Uniform Law Conference.
(38) Department of Justice, Mental
Disorder Project, Criminal Law Review, Final Report, September
1985, p. 20.
(39) R. v. Chaulk, [1990]
3 S.C.R. 1303.
(40) R. v. Oommen, [1994] 2 S.C.R.
507, at p. 516.
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