Response to the 14th Report of the Standing Committee on Justice and Human Rights
Review of the Mental Disorder Provisions of the Criminal Code
The Committee recommends that the defence of "mental disorder" in section 16 and the definition in section 2 of the Criminal Code be retained in their present form.
The Government of Canada agrees with the Committee's recommendation. The vast majority of witnesses noted that the current definitions are appropriate and are applied fairly and consistently and saw no need for any amendment to the term "mental disorder" in sections 2 or 16 of the Criminal Code. No amendments need to be considered.
Section 16 of the Criminal Code codifies the common law test of insanity, now referred to as mental disorder. The current section 16 was enacted by SC 1991 c. 43 to modernize the terminology of the former insanity defence. Prior to the 1992 reforms, a person could be found "not guilty by reason of insanity" and thereafter held indefinitely at the pleasure of the Lieutenant Governor. Under the new law, the verdict of not criminally responsible on account of mental disorder resulted in the accused being subject to Part XX.1 with the appropriate disposition determined by the court or by the Criminal Code Review Board. Each province and territory has designated a Review Board. Since there has been no substantive change in the test for criminal responsibility, the case law interpreting the pre-1992 test for insanity continues to apply to the current section 16
To establish the section 16 exemption from criminal responsibility, it must be shown that the accused was suffering from a mental disorder at the time of the offence that rendered him or her incapable of either appreciating the nature and quality of the act or omission, or of knowing that it was wrong.
"Mental disorder" is defined in section 2 of the Criminal Code as a "disease of the mind". It is a question of law for the trial judge to determine what constitutes a "disease of the mind" or a "mental disorder". The Supreme Court of Canada's judgement in R. v. Cooper  1SCR 1149 as stated in R. v. Rabey  2SRC 513 is the authority on the meaning of "disease of the mind":
…. 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 and concussion. In order to support a defence of insanity the disease must, of course, be of such intensity as to render the accused incapable of appreciating the nature and quality of the violent act or of knowing it was wrong.
The Committee noted that since the 1992 reforms there has been an increase in the number of accused persons found not criminally responsible, which has in turn raised the question of whether the law or its application excuse too many people from criminal liability. However, while there has been an increase, it must be viewed in the context of the general population and persons charged and convicted of offences over the same period.
The available statistics indicate that the number of individuals found not criminally responsible or unfit represented less than 1% of those charged with a criminal offence in 1992 and also in 2000.
Increases in actual numbers may also be attributed to the fact that Part XX.1 applies to both indictable and summary offences, whereas the pre-1992 regime applied only to indictable offences.
It is important to note that while the application of section 16 will exempt an accused from criminal responsibility, he or she is not acquitted. A verdict of not criminally responsible on account of mental disorder will result in a disposition ranging from community living under supervision to secure detention in a psychiatric facility, until the accused is absolutely discharged in accordance with the criteria in section 672.54.
It is a basic principle of our criminal law that criminal responsibility requires an operating mind, and the law exempts from criminal responsibility those who are incapable of making a rational choice due to mental disorder or immaturity. The current section 16 exemption, or "defence" as some may call it, traces its origins to the 18th century and the English common law and the M'Naughten Rules.
As the Committee noted in its report, the witnesses it heard generally agreed that the mental disorder provisions of our law work very well to balance the rights of mentally disordered persons and the protection of society.
The Committee recommends that the definition and application of the law relating to "automatism," both sane and insane, be left to the courts.
The Government agrees that the Criminal Code should not be amended at the present time to codify a verdict of automatism. Any reforms regarding automatism should be considered only as part of a comprehensive review of the General Part of the Criminal Code to ensure a principled and consistent approach to defences.
As the Committee noted, in 1993 the Department of Justice released a Consultation Paper on the Reform of the General Part of the Criminal Code which raised the issue of whether the General Part should codify a verdict of not criminally responsible on account of automatism or codify the case law to permit acquittal for non-insane automatism.
Draft amendments were proposed in a White Paper in 1993 to provide
for the verdict of not criminally responsible on account of automatism.
Automatism was defined as
"a state of unconsciousness that renders
a person incapable of consciously controlling their behaviour while
in that state."
Although the amendments were not pursued, the case law has provided further guidance.
In R v. Stone  2 SCR 290, the Supreme Court of Canada clearly established the law governing the defence of automatism, noting that two forms of automatism are recognized at law. "Non insane automatism" refers to an involuntary action that does not arise from a disease of the mind; such a finding results in an acquittal. "Insane automatism" refers to involuntary action that results from a disease of the mind. Insane automatism triggers a section 16 verdict of not criminally responsible on account of mental disorder.
The Supreme Court set out a two-stage approach where claims of automatism are made. First, the trial judge must conclude that there is evidence upon which a properly instructed jury could find that the accused acted involuntarily, on a balance of probabilities. Confirming psychiatric evidence is essential. Several factors must be considered, including the severity of the triggering stimulus, corroborating evidence and any history of automatistic behaviour. Second, the trial judge must determine if the condition is a mental disorder (insane) or non-mental disorder (sane) automatism.
If the judge concludes that the condition asserted is not a disease of the mind, only the defence of non-mental disorder (or non-insane) automatism will be available. The question for the trier of fact is whether the defence has proven on a balance of probabilities that the accused acted involuntarily. If so, he or she will be acquitted.
If the judge concludes that the condition is a disease of the mind, only the defence of mental disorder automatism is available. The case proceeds in same manner as any other section 16 – case the defence must prove, on a balance of probabilities, that the accused suffered from a mental disorder that rendered him or her incapable of appreciating the nature and quality of the act.
R v. Stone clearly states the law and has been consistently applied by courts. Sane automatism has been established in very few cases. Automatism remains a rare and unusual event, and given the Supreme Court of Canada decision in Stone there is no pressing need for codification.
The Committee recommends that the federal Minister of Justice review the definition of "unfit to stand trial" in section 2 of the Criminal Code to consider any additional requirements to determine effectively an accused's fitness to stand trial, including a test of real or effective ability to communicate and provide reasonable instructions to counsel.
The Government acknowledges that the law must be monitored and where necessary amended to address the needs of society, respond to the case law and address unanticipated implications. With respect to the definition or test to determine whether an accused is fit to stand trial, as the Committee has noted, there are conflicting opinions on the definition set out in section 2 of the Code and its application by the courts.
Our law recognizes that a person cannot be tried for a criminal offence where because of mental disorder he or she does not have the capacity to make a defence.
Section 2 of the Code defines "unfit to stand trial" as:
unable on account of mental disorder to conduct a defence at any stage of the proceedings before verdict is rendered or to instruct counsel to do so, and, in particular, unable on account of mental disorder to
- understand the nature or object of the proceedings,
- understand the possible consequences of the proceedings, or
- communicate with counsel.
Where fitness to stand trial is an issue, it is the accused's capacity at the time of trial that is in question.
Where a person is found to be unfit to stand trial, any plea that has been taken is set aside and the court may direct that treatment be carried out for the purpose of making the accused fit to stand trial for a specified period, not to exceed 60 days. The court must be satisfied on the basis of medical evidence that the proposed treatment will likely make the accused fit to stand trial and that without treatment the accused is likely to remain unfit; that the risk of harm to the accused from the treatment is not disproportionate to the anticipated benefit; and that the specified treatment is the least restrictive and least intrusive in the circumstances. The court must hold an inquiry not later than two years after the verdict of unfitness was rendered and every two years thereafter until the accused is either acquitted or tried, to decide whether there is sufficient evidence to put the accused on trial. The burden is on the prosecution to prove that there is sufficient evidence to put the accused on trial and if it fails to satisfy the court, the accused will be acquitted. In addition, an accused can apply for an inquiry and the court may order one where there is reason to doubt that the prosecution can establish a prima facie case.
Further, where the Review Board holds a hearing to make or review a disposition in respect of a person found unfit to stand trial and determines that the accused is fit, it is required to order the accused be sent back to court for a trial of the issue of fitness.
In R. v. Taylor (1991), the Ontario Court of Appeal held that the proper test to be applied in determining fitness, particularly whether the accused is able to communicate with counsel, is that of limited cognitive capacity – i.e. whether the accused can recount to counsel the necessary facts about the offence in such a way that counsel can properly present a defence. It is not necessary that the accused be able to act in his or her own best interest. The Supreme Court of Canada affirmed the "limited cognitive capacity test" in R. v. Whittle in 1994. Sopinka J held that, provided the accused possesses the capacity to understand the process and communicate with counsel, it is not necessary that he or she be capable of exercising analytical reasoning in making a choice to accept advice of counsel or in acting in his or her best interest.
While some critics argue the test is too low – i.e. that persons who should not be are found fit – the balance between the objectives of the fitness rule and the constitutional right of the accused to choose his or her defence and to have the trial within a reasonable time, and the consequences of "unfit" determination must be considered.
The Uniform Law Conference examined the test for fitness in 1999. The Uniform Law Conference paper canvassed the case law, the literature criticizing the limited cognitive capacity test, and the implications of a higher threshold for fitness. The Uniform Law Conference did not recommend any amendment to the fitness provisions of the Code.
The Federal-Provincial-Territorial Working Group on Mental Disorder also considered the adequacy of the test and concluded that no amendments were necessary.
The Committee heard additional views and considerations from service providers, psychiatrists, psychologists and defence counsel with first-hand experience with the application of the test. The Government agrees with the Committee that further consideration of the test should be pursued, in consultation with provincial Attorneys General and their officials.
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