How we fail to absolve those that are not criminally responsible by mental disorder in minor crime scenarios

Article by Matthew Pagels

‘This will be my first blog entry for the Ziv Law Group, and I’m excited to write it. I’m going to talk about an issue that is very near and dear to my heart. Something that plagues our criminal justice system, and I would venture to say every criminal justice system that makes an effort. I’m going to talk about the relationship between mental illness and criminality. But this is too vast a topic to contain in a blog entry, so I’m specifically going to focus on those cases where the crime is something much less than murder and the mental illness may range between leaving the Accused with no capacity to make meaningful rational choices, or something nearing that lower degree of capacity on that spectrum. 

The following two examples should make the problem I am talking about more clear. These are real people and examples, but significant details have been changed to protect client identity. Of course, everyone at Ziv Law Group is entitled to confidentiality. Here, I have respected that sacred duty by keeping details vague enough that it could be anyone, with a dash of fabrication, all while preserving the core of the scenario to make the point.

The first example is a client that had some major cognitive delay and unfortunately assaulted a care giver impulsively. This person struck the care giver on the face and body, pulled hair, and shouted that they would “end” the victim before intervention came. This person was an adult, but was residing full time in an institutionalized care unit under 24/7 supervision. They were also subjected to an adult guardianship order which places members of their family in charge over the major medical and life decisions. The evidence was that although there was some freedom for this individual to decide what they wanted day-to-day, such as what to have for breakfast or what to wear, the true ambit of this person’s personal freedoms was actually very limited. For instance, they could not simply declare that they were going to a park or the library. These things had to be scheduled in advance, and might be considered “goals” at the next care plan meeting that the individual was invited to. This person would never be allowed to go to a pub, get intoxicated, play a few games of billiards with a new love interest, and then go explore that further in private. 

The second example is a client that was in a serious motor vehicle accident and appeared to have some organic brain damage from the accident. During their stay in the hospital for treatment from that same accident, they became aggravated, confused, and were insisting on going home because they had important things to do. This was, to put it bluntly, and insane choice and one that would have put the person in extreme jeopardy. The hospital, likely quite properly, ordered this second individual physically restrained because they were thrashing about and threating violence on hospital staff. The doctor found that the person knew what they were saying and doing, but nevertheless lacked the mental capacity to make reasonable choices concerning their personal health at the time. A few days later, while recovering and fully restrained by arm and leg harnesses, this person freed a limb and struck a hospital staff member while demanding to be freed.

Both of these example clients were prosecuted by Alberta Justice, and unfortunately according to the law as written, both are “guilty” in law of criminal assault. I posed the issue using these two examples, because I am hoping you as a reader will have the same common sense revulsion that I do. In both of these cases, we as a society have already decided that the individual does not bare the same responsibility as another ordinarily functioning adult in our society. We’ve already said they can’t make their own decisions. This alone, to my mind, demands an approach that is distinct from the stigma and moral culpability involved in criminal sentencing. No one hearing about these cases is going to feel like “justice” is done regardless of how heavy or light the ultimate sentence turns out to be. “Justice” will be done when we address both the mental disorder and the quality of care and supervision as the problem, rather than punishing the disordered individual as if they were the problem.

As it stands today, our criminal law draws a bright line between “not criminally responsible” and the rest of us. The test for “not criminally responsible” was, in my view, clearly modelled on the Accused with schizophrenia or other delusional disorder that commits a major crime such as murder under their hallucinations. The test is found in s. 16(1) of the Criminal Code of Canada.

Defence of mental disorder
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.
Presumption
(2) Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection (1), until the contrary is proved on the balance of probabilities.
Burden of proof
(3) The burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal responsibility is on the party that raises the issue.

Historically, the roots of this test are from the case of Rex v. M’Naghten (1843) 8 E.R. 718; (1843) 10 Cl. & F. 200. Mr. M’Naghten was charged with murder for shooting and killing a man named Edward Drummond as he was under the delusional misunderstanding that Mr. Drummond was the British Prime Minister. The Court found him not guilty and the case went to the House of Lords, which found:

the jurors ought to be told in all cases that every man is to be presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.

It is with even more delicious irony that I recall the case of John Hinckley Jr., the man who attempted to assassinate US President Ronald Reagan. Mr. Hinchley Jr. was similarly diagnosed with schizophrenia and was under a convoluted delusion that the assassination of Ronald Reagan would impress Jodie Foster, whom Mr. Hinckley Jr. was obsessed with. His specific delusions were an amalgamation of fact and fiction from the movie “Taxi Driver” and real life. History for our insanity defence(s) may have played out differently in the US and Canada had this infamous assassination attempt not generated incredible outcry for prosecution in 1981 and as his trial progressed. Mr. Hinckley Jr. was convicted for murder after the following jury instruction was provided:

The M’Naghten standard therefore survives in our s. 16(1) of the Criminal Code. I must pause to speculate whether Mr. M’Naghten himself would have been eligible under s. 16 of the Criminal Code today given the Court’s reasons in R. v. Landry, 1991 CanLII 114 (SCC), [1991] 1 SCR 99. Mr. Landry was found not guilty by reason of mental disorder under s. 16(1), and the Supreme Court of Canada found that he did not know what he did was morally wrong. The Court broke down s. 16(1) explaining that “knowing” the action was “wrong” referred to a moral wrong and not merely that it was illegal. However, whereas Mr. Landry believed his murder was a mission from God to kill the devil, I wonder whether Mr. M’Naghten’s more earthly and personal mission of killing a man he believed to be the Prime Minister would meet the test in a Canadian court today. You may have notices that assassination of the Prime Minister is still a murder and had Mr. M’Naghten’s delusions been true he would just be a guilty assassin. Mr. M’Naghten appreciated the nature and quality of his acts and would have known that the murder of a man, unlike the that of a devil, is wrong.

The burden is on the Government to prove beyond a reasonable doubt either that the defendant was not suffering from a mental disease or defect on March 30, 1981, or else that he nevertheless had substantial capacity on that date both to conform his conduct to the requirements of the law and to appreciate the wrongfulness of his conduct.

Yes, despite being obviously delusional and “insane” in the ordinary sense, Mr. Hinkley Jr. fell short of the M’Naghten standard as it developed in the US. 

Now I circle back at last to our two examples from my own practice, and what became of them. Well, I certainly didn’t raise a “not criminally responsible” defence under s. 16 of the Criminal Code. You see, upon successfully arguing a “not criminally responsible” defence, the Court refers the individual to a review board under s. 672.47 of the Criminal Code, and the process becomes an administrative medical decision. There are no minimum or maximum periods of internment for the crime, because the individual is no longer being punished – they are being treated. And said treatment could translate into real life pragmatic terms to a life sentence in a psychiatric unit. In real criminal law practice, responsible lawyers rarely raise the s. 16 defence except unless a life sentence is the alternative.

In cases where the Accused was committed some (comparatively) minor act of assault against a person, we defence lawyers are better off having our obviously mentally ill clients “accept responsibility” and argue for mitigation in sentencing rather than absolution. For the two examples I have given, society has already obviously decided that they were not fit to make even the most basic fundamental choices about their lives, but we will still criminally prosecute such people because we have bifurcated our criminal responsibility into the black and white categories set out in ss. 16 and 672.47 of the Criminal Code. You can either put yourself at the mercy of the review board or take it on the chin and be punished as a criminal.

I do have to admit that we are making slow progress in this department. Edmonton’s Mental Health Court is very good at parsing out medical and mental health histories of individuals and then directing appropriate probation conditions or treatment orders that might be within the Court’s power to set things right. Our friends at the Crown’s Prosecutor’s office that work in mental health court are often sensitive and very much alive to the degree of responsibility of these offenders. The Edmonton Mental Health Court is stymied by an inability to order assessments, and they do not have specialize resources, such as social workers to assign, housing supports, or an ability to refer offenders to the public trustee for guardianship. Edmonton’s Mental Health Court could be more effective with more support from government.

It is in this lesser sphere of heavily mitigated criminal responsibility where I believe we have failed the most. In cases where the offender is already institutionalized in some obvious manner, I say the issue of criminal responsibility has already been closed in favour of finding that this class of offender cannot possibly bare full criminal responsibility. As a start, I would be in favour of a second tier of criminal responsibility, similar to what we do under the Youth Criminal Justice Act. This would acknowledge not only the lower degree of responsibility of the offender, but force the decision maker and society to come to terms with our failings as stewards of our adult population in care. When violence and crime are committed by those we have already declared incapable, the responsibility is on us to make sure it doesn’t happen again as much, if not more, than it is on the mentally disordered individual.