PSYC 300
Chapter 18 – Ethical and Legal Issues
18.1 Criminal Commitment
- Criminal commitment: confinement of people in mental institutions either because they have been found
not guilty by reason of insanity or to establish their competency to stand trial as responsible defendants.
- Much of Canadian law has derived from English common law (reflects British influence in Canada)
Exception is Quebec Napoleonic law has been incorporated into civil statutes.
- In Canada, criminal law is a matter of federal statute and the same in every province.
- Matters of health law determined at provincial level and can differ in each province
- Criminal code first enacted in 1892
Adopted a draft British code that was never enacted in Britain.
“Insanity” had to be taken into consideration
o A disordered mind may be regarded as unable to formulate/carry out a criminal act
A disordered mind cannot be a guilty mind; only a guilty mind can engender culpable actions.
- Initially, insanity was not a trial defence
In England, the Crown sometimes granted pardons to people who had been convicted of
homicide if they were judged completely “mad”
Reign of Edward I (1272–1307) concept of insanity begun to be argued in court
o Could lessen punishment.
o Became the rule of law during course of 14th century that a person proven to be “mad”
could be defended against a criminal charge.
- Today judges and lawyers call on psychiatrists and clinical psychologists for assistance in dealing with
criminal acts thought to result from accused person's disordered mental state rather than free will.
Although efforts to excuse an accused person by invoking insanity defence or by judging them
unfit to stand trial are well intentioned, invoking doctrines can subject the accused to a greater
denial of liberty than they would have otherwise experience.
Not Criminally Responsible Defence
- Not criminally responsible: used in Criminal Code of Canada to refer to a situation in which an individual
has taken actions that are defined as illegal but due to the effects of a mental disorder are not held legally
responsible for their actions.
Formerly referred to as “not guilty by reason of insanity.”
Insanity defence: legal argument that a defendant should not be held ascriptively responsible for
an illegal act if the conduct is attributable to mental illness.
- Not criminally responsible on account of mental disorder (NCRMD)
Legal argument
A defendant should not be held responsible for an otherwise illegal act if it is attributable to a
mental illness that interferes with rationality or results in some excusing circumstance
o E.g., not knowing right from wrong.
Mental disorder may operate to negate the necessary mental element (mens rea), or it may
operate to render the act (actus reus) involuntary.
o Mens rea: the mental element of a person's intention to commit a crime
Knowledge that one's action (or lack of action) would commit a crime.
A necessary element of many crimes.
o Actus reus: the act or omission that comprise the physical elements of a crime
Mental disorder may operate to provide a supervening defence even where requisite mental
element and act have been proven.
o E.g., an accused person may specifically intend to kill their neighbour, believing them
to be an alien sent to destroy the world court may find that (notwithstanding the
, requisite elements proven) the accused did not understand the nature and consequences
of their act or see it as wrong.
- Public outcries continue in prominent cases where defendants are found not criminally responsible.
- Concerns eixst even though a review conducted confirmed that
1. Insanity defence is very rare
2. Usually only successful when applied to severely disordered individuals
3. People deemed insane are still typically detained for long periods of time that may greatly exceed
an otherwise appropriate sentence.
o Being found not criminally responsible does not result in an acquittal.
- There have been federal changes in Canada surrounding treatment of people deemed NCRMD.
Bill C-54 introduced by the Harper Government (came into effect in July 2014)
New legislation allows certain people deemed high risk to possibly be detained indefinitely until
a judge determines the high-risk NCRMD offender is no longer a threat to the public.
Two high-profile Vincent Li and Allan Schoenborn cases
- Chief Justice of Canada's Supreme Court Beverley McLachlin
First female Chief Justice (longest serving as well)
Expressed she is not aware of problems/deficiencies in the current law or review-board system.
o Believes this system works well and has served Canada well as a good national model
and is supported by medical officials, the police and by judges
McLachlin has been a tireless advocate for the rights of mentally ill offenders.
o Concern tendency for mentally ill offenders to be “warehoused” in jail by police and
released without receiving treatment.
- Lori Triano-Antidormi mother of the murdered Zachary Antidormi.
Provided a compelling account of the day her son was killed and what that means to an
individual and a family in a presentation to the Justice and Human Rights Committee
Expressed concerns about how Bill C-54 could promote stigma and how it reflects a misguided
understanding of the nature of mental illness.
Landmark Cases in Canada
Case Date Significance
Rex vs. 1800 Led to changes where mentally ill could be institutionalized rather than returned to prison
Hadfield or the community. The accused were held at “His or Her Majesty's Pleasure.”
Regina vs. 1843 Followed the House of Lords, setting a standard test for “insanity” that was adopted (with
M'Naghten modifications) by the Western world. Beginning of modern insanity defence.
Regina vs. 1990 Specified that “wrong” means morally and legally.
Chaulk
Regina vs. 1991 Led to creation of Bill C-30 establishes jurisdiction of provincial review boards that
Swain balance the individual's and community's concerns; changes a verdict from “not guilty by
reason of insanity” to “not criminally responsible on account of mental disorder.”
Regina vs. 1994 Accused must not only be able to know what is wrong but also be able to apply that
Oommen knowledge at the time of the act.
Winko vs. 1999 If it cannot be determined whether a mentally disordered person is a significant threat to
BC public safety, they must be discharged absolutely.
R. vs. 2014 Ruled court system could not refuse or delay provision of treatment to mentally ill people
Conception deemed unfit to stand trial. Overturned Ontario court ruling went in favour of CAMH and
the Mental Health Centre in Penetanguishene argued they lacked resources to provide
immediate treatment to Brian Conception, who was sent to them by an Ontario judge who
issued treatment (unfit to stand trial due to symptoms of schizophrenia)
Canadian Legal History
Chapter 18 – Ethical and Legal Issues
18.1 Criminal Commitment
- Criminal commitment: confinement of people in mental institutions either because they have been found
not guilty by reason of insanity or to establish their competency to stand trial as responsible defendants.
- Much of Canadian law has derived from English common law (reflects British influence in Canada)
Exception is Quebec Napoleonic law has been incorporated into civil statutes.
- In Canada, criminal law is a matter of federal statute and the same in every province.
- Matters of health law determined at provincial level and can differ in each province
- Criminal code first enacted in 1892
Adopted a draft British code that was never enacted in Britain.
“Insanity” had to be taken into consideration
o A disordered mind may be regarded as unable to formulate/carry out a criminal act
A disordered mind cannot be a guilty mind; only a guilty mind can engender culpable actions.
- Initially, insanity was not a trial defence
In England, the Crown sometimes granted pardons to people who had been convicted of
homicide if they were judged completely “mad”
Reign of Edward I (1272–1307) concept of insanity begun to be argued in court
o Could lessen punishment.
o Became the rule of law during course of 14th century that a person proven to be “mad”
could be defended against a criminal charge.
- Today judges and lawyers call on psychiatrists and clinical psychologists for assistance in dealing with
criminal acts thought to result from accused person's disordered mental state rather than free will.
Although efforts to excuse an accused person by invoking insanity defence or by judging them
unfit to stand trial are well intentioned, invoking doctrines can subject the accused to a greater
denial of liberty than they would have otherwise experience.
Not Criminally Responsible Defence
- Not criminally responsible: used in Criminal Code of Canada to refer to a situation in which an individual
has taken actions that are defined as illegal but due to the effects of a mental disorder are not held legally
responsible for their actions.
Formerly referred to as “not guilty by reason of insanity.”
Insanity defence: legal argument that a defendant should not be held ascriptively responsible for
an illegal act if the conduct is attributable to mental illness.
- Not criminally responsible on account of mental disorder (NCRMD)
Legal argument
A defendant should not be held responsible for an otherwise illegal act if it is attributable to a
mental illness that interferes with rationality or results in some excusing circumstance
o E.g., not knowing right from wrong.
Mental disorder may operate to negate the necessary mental element (mens rea), or it may
operate to render the act (actus reus) involuntary.
o Mens rea: the mental element of a person's intention to commit a crime
Knowledge that one's action (or lack of action) would commit a crime.
A necessary element of many crimes.
o Actus reus: the act or omission that comprise the physical elements of a crime
Mental disorder may operate to provide a supervening defence even where requisite mental
element and act have been proven.
o E.g., an accused person may specifically intend to kill their neighbour, believing them
to be an alien sent to destroy the world court may find that (notwithstanding the
, requisite elements proven) the accused did not understand the nature and consequences
of their act or see it as wrong.
- Public outcries continue in prominent cases where defendants are found not criminally responsible.
- Concerns eixst even though a review conducted confirmed that
1. Insanity defence is very rare
2. Usually only successful when applied to severely disordered individuals
3. People deemed insane are still typically detained for long periods of time that may greatly exceed
an otherwise appropriate sentence.
o Being found not criminally responsible does not result in an acquittal.
- There have been federal changes in Canada surrounding treatment of people deemed NCRMD.
Bill C-54 introduced by the Harper Government (came into effect in July 2014)
New legislation allows certain people deemed high risk to possibly be detained indefinitely until
a judge determines the high-risk NCRMD offender is no longer a threat to the public.
Two high-profile Vincent Li and Allan Schoenborn cases
- Chief Justice of Canada's Supreme Court Beverley McLachlin
First female Chief Justice (longest serving as well)
Expressed she is not aware of problems/deficiencies in the current law or review-board system.
o Believes this system works well and has served Canada well as a good national model
and is supported by medical officials, the police and by judges
McLachlin has been a tireless advocate for the rights of mentally ill offenders.
o Concern tendency for mentally ill offenders to be “warehoused” in jail by police and
released without receiving treatment.
- Lori Triano-Antidormi mother of the murdered Zachary Antidormi.
Provided a compelling account of the day her son was killed and what that means to an
individual and a family in a presentation to the Justice and Human Rights Committee
Expressed concerns about how Bill C-54 could promote stigma and how it reflects a misguided
understanding of the nature of mental illness.
Landmark Cases in Canada
Case Date Significance
Rex vs. 1800 Led to changes where mentally ill could be institutionalized rather than returned to prison
Hadfield or the community. The accused were held at “His or Her Majesty's Pleasure.”
Regina vs. 1843 Followed the House of Lords, setting a standard test for “insanity” that was adopted (with
M'Naghten modifications) by the Western world. Beginning of modern insanity defence.
Regina vs. 1990 Specified that “wrong” means morally and legally.
Chaulk
Regina vs. 1991 Led to creation of Bill C-30 establishes jurisdiction of provincial review boards that
Swain balance the individual's and community's concerns; changes a verdict from “not guilty by
reason of insanity” to “not criminally responsible on account of mental disorder.”
Regina vs. 1994 Accused must not only be able to know what is wrong but also be able to apply that
Oommen knowledge at the time of the act.
Winko vs. 1999 If it cannot be determined whether a mentally disordered person is a significant threat to
BC public safety, they must be discharged absolutely.
R. vs. 2014 Ruled court system could not refuse or delay provision of treatment to mentally ill people
Conception deemed unfit to stand trial. Overturned Ontario court ruling went in favour of CAMH and
the Mental Health Centre in Penetanguishene argued they lacked resources to provide
immediate treatment to Brian Conception, who was sent to them by an Ontario judge who
issued treatment (unfit to stand trial due to symptoms of schizophrenia)
Canadian Legal History
