Transcript Lunch & Learn, Jan 21, 2015 by Dr. Gojer

Lunch and Learn
York Simcoe HSJCC
Not Criminally Responsible on
Account of Mental Disorder
Joe Wright-ORB counsel
Ms. Carla Whillier
Julian Gojer and
Crystal Francis-Moderator
Not Criminally Responsible On Account
of Mental Disorder and What Lies
Beyond
Dr. Julian Gojer
MBBS FRCPC JD
Assistant Professor of Psychiatry
University of Toronto
What is mind?
No Matter!
What is matter?
Never mind!
NCRMD-Section 16
Suffering from a Mental Disorder
Act or omission
Renders person incapable of:
– Appreciating nature and quality of
act/omission
– Knowing that it was wrong
Moral and not legal wrongfulness
Note: The Incapacity is on the Balance of
Probability and The onus is on the person who
raises the defense
Not a Metaphor for Freedom
• Old wine in new bottle-Insanity to NCRMD
• Get out of jail free ticket
• Get into hospital for a long time
• Get medicated against your wishes if not
capable of consenting to treatment
• Shifting focus from mental illness to
dangerousness
Of All NCR Cases
Homicide 2.6%
Attempt murder 3.3%
Sexual assault 2.1%
All violent cases-8%
Women 15%
About 30 % of violent cases-psychotic
About 60 % more than 1 diagnosiss
About 25% with personality disorders
About 10% of violent cases reoffend
Using an Expert
To highlight the defense at the outset
To rebut a finding already made
The need to look at timing and Who brings
the application?
Before a finding of guilt is made-Defense
After it is established by the court that the accused
committed the act-Crown or defense
Crown cannot raise NCR until a finding of guilt is
made.
What Expert to Use?
Often a psychiatrist
Less often a psychologist
Psychiatrist-medical background and
mental health expertise
Psychologist-Non medical background
The introduction of such evidence is
governed by the rules set out in R v
Mohan in Canada.
Similar rules are there in the US and the
tests laid out in Daubert v Merrell Dow.
Who to Choose?
Nature of the offense
Experience of the expert
Qualifications of the expert
Location of the assessment
R v Palmer
R v Lapierre
Experts May include
– General psychiatrist, Forensic psychiatrist,
Psychiatrist in forensic practice, Neuropsychiatrist
– Sleep specialist
– Psychologist, neuropsychologist, educational
psychologist
– Neurologist
– Criminologist
– Social worker
– Addiction specialist, Toxicologist
– Others
Importance of looking at biological, psychological and
social factors in explaining mental disorder
NCR assessment and Beyond?
Fitness to stand trial – R v Wagman
Capacity to make a voluntary statement
Criminal Responsibility
Diminished Capacity
To provide a narrative and give context to an
offense
Sentencing and Risk Assessments-R v Fortune
Mens Rea
ALI’s degrees of Mens Rea:
• Purposefulness-acting with the conscious
purpose to engage in specific conduct or to
cause a specific result.
• Knowledge-awareness that one’s conduct is of a
particular nature and will lead to a specific result
• Recklessness-conscious disregard for a
substantial and unjustified risk
• Negligence-creation of a substantial or known
risk of which one ought to have been aware
The Actus Reus
Whether the act was voluntary or not?
Was there impairment of consciousness?
Was the volitional capacity of the individual
overwhelmed?
Justice Lamer in Swain (1991) said:
“Sometimes the boundary between mens
rea and actus reus can be blurred.
Automatisms-Negation of Actus Reus
• It is clear that offending lies on a spectrum
of culpability and no two offenders have
the same developmental background to
their offending.
• If a sentence is to befit the crime then
understanding the degree of culpability is
extremely important
• Minimum sentences and lack of a clear
diminished capacity defense in Canadian
law precludes a nuanced fault level and
commensurate sentences
The Many Faces of Mental Illness
• DSM 5 has distinct categories
• The boundaries between disorders is often
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blurred
Reconceptualization of psychiatric disorders,
new conditions are listed and some are dropped.
Unlike general medicine, many of the disorders
do not have a specific etiology
Disorders are at best syndromes
Many of them lie on a spectrum of quantity and
quality of signs and symptom clusters.
What is a Mental Disorder?
The court decides based on medical input
and policy reasons what a Mental Disorder
is.
Internal external dichotomy
Continuing danger
Dangerousness as the new determination!
Diagnosis v signs and symptoms
Diagnosis is important for establishing
Mental Disorder
Signs and Symptoms go towards capacity
The analysis of “appreciation of the nature and quality of
one’s actions and consequences and their moral
wrongfulness” requires a very careful analysis of signs
and symptoms that contribute to the diagnosis and which
become more important than the actual diagnosis for the
final legal determination.
The above tests are couched in language where the
analysis ends in how signs and symptoms impact on
cognitive capacity or the decision making process of the
individual.
The analysis has to be both quantitative and qualitative.
The quantitative aspects can go both to addressing
mens rea and actus reus and the NCRMD analysis
The qualitative analysis goes to the heart of the NCRMD
assessment
Analyzing an Assessment Report
• Timing of the assessment-R v Luedecke
• Sources of information
• Clear understanding of the allegations
• Clear documentation of onset of signs and
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symptoms
Description of signs and symptoms
Impact of signs and symptoms on behavior
related to and unrelated to offense
Do symptoms add up to a recognizable disorder
Has malingering been considered
Role of drugs and alcohol
How does it impact on capacity
Capacity
Examination of mental state at the material
time to determine:
– Level of alertness
– Level of altered consciousness
– Level of disconnect between consciousness and
action-automatism
– Degree of planning and deliberation
– Foresee the consequences of actions
– Weigh the pros and cons of actions
– Exercise rational choice
– Role of emotional state and impact on thinking
Signs, Symptoms, Disorders
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Intoxication or withdrawal
Delusions and or Hallucinations
Manic/depressive/anxiety/fear/anger symptoms
Dissociative symptoms
Memory problems
Impulse Control (clarify irresistible impulse)
Brain damage-frontal lobe and other
Seizure disorders
Intellectual limitation
Personality Disorders-antisocial, borderline, etc
Other non psychotic disorders-OCD
Other medical conditions-diabetes etc
Diminished Capacity
Not available in Scottish and Belgium Law
Available in some US states
Available in England, Holland, Norway,
Germany and Japan
Not available formally in Canadian Law
But a closer examination of the Criminal
Code and case law suggests otherwise.
• One understanding of diminished
culpability secondary to diminished
capacity is seen when addressing the
negation of specific Intent.
• The test is a cognitive test:
• Lack of foreseeability of the consequences
of one’s actions.
Foreseeability
– A complex cognitive function
– Intellectual functioning necessary but not
sufficient
– Some degree of abstract thought process
needed
– Some degree of attention
– Some degree of awareness
– Role of intense emotions like rage, fear,
depression or mania
Intoxication and Withdrawal
DPP v Beard 1920 and R v Bernard 1988
Degrees of intoxication-Daley
– Mild-no impact on mens rea
– Advanced-can negate specific intent
– Extreme-can lead to automatism
So intoxicated that he could not reasonably foresee the
consequences of his actions-Daley
Drug induced psychosis-Cooper 1980 Stone 1999 and
Lebrun-Bouchard 2011
R v Payan
Drug addiction as a possible mechanism for NCRMD
Drug Induced Psychosis
R v Ballamekongo
Charged with murdering landlady
LSD induced mental disorder
Both NCR and Diminished Capacity
available
Defense chooses diminished capacity
Infanticide
Does not follow medical understanding of
post partum period and in the absence of an
NCRMD defense, infanticide as a defense
indicates that the offense falls short in terms
of culpability for murder R v Brazalot
Duress
Criminal act is carried out under a
compulsion
Le Bel in Ruzic 2001 highlights the
subjective and objective nature of the test.
Understanding psychiatric symptoms
irrespective of what the diagnosis is
becomes important in understanding
impact of duress on otherwise criminal
behavior.
Self Defense
The test has an objective and a subjective component
and psychiatric testimony with respect to dynamics and
interplay of psychiatric symptoms and psychological
nuances on the offending.
R v Lavalle 1990
R v Petel 1994
The accused must be found to have subjectively
believed that the infliction of grievous bodily harm or
death was the only way to protect herself, no other viable
alternative should be present, there should be
reasonable and probable grounds for the actions
Klimovich and Lasota
Batter boy syndrome, Battered prisoner syndrome
Provocation
A wrongful act or insult aimed at someone,
the nature of which is sufficient enough to
deprive an ordinary person of the powers
of self control R v Carpenter 1993. R v Hill
1986
A subjective component in that the act
should occur before the accused’s passion
cooled. R v Hill.
R v Poland, R v Choudhury
R v Parent: anger by itself not a defense
Mental Illness and Diminished
Capacity
– Ballamekongo-drug induced mental illness
– Battered Boy Syndrome
– Dupe-mental illness, intoxication, personality
disorder, trauma, malingering. First to
Second degree murder.
– Klimovich-Major depression, dissociation,
provocation
R v Klimovich
Jewish man separated from non Jewish wife, but
still living with her
Severe depression-major depression and
dissociative episodes
Claimed she called him a Jewish rag and she
attacked him with a knife
Court ordered assessment-not meeting NCRMD
Testimony by psychiatrist
Self defense, provocation, murder
Manslaughter-verdict
Both sides appealing
R v Ching
55 year old man. Long history of depression and on
antidepressants. Abusive to wife who leaves him
More depressed, Takes overdose and discharged
without medication. Depressive psychosis
Buys hatchet and knife a few days later and goes to
wife’s uncle house where wife is staying
Asks her to come out to talk to him. Uncle at door
Good relationship and was asked to leave
pushes in past the uncle. Scuffle ensues. Uncle stabbed
in stomach and succumbs. Seen standing with a dazed
look. No attempt to run away. First degree murder
Testimony by two psychiatrists. Issues of Murder,
Manslaughter and NCR raised. Jury finds him guilty of
first degree murder
R v Jacquard [1997] SCC
Sopinka, Cory and Major dissenting:
…the trial judge fully explained the relevance and application of the
psychiatric evidence to the issue of mental disorder under section 16 of
the CC. He also specifically referred to this evidence in relation to
other issues but he did not do so in relation to the charge on planning
and deliberation. The jury might well have taken from this that the
mental disorder evidence and the psychiatric evidence in particular
were only relevant in respect of those issues to which a specific
reference was made. Furthermore, a simple reference may not have
been adequate in this case since it is uncertain that a jury, without a
proper instruction, would know how the psychiatric evidence, couched
in terms of s.16, would apply to planning and deliberation.
R v Allard [1990] Quebec Court
of Appeal
If the appellant was insane at the time, the jury was bound
to acquit her. But if her defense of insanity failed, the jury
was nonetheless required to bear in mind all the
evidence—in considering the live issues of intention,
planning and deliberation……
Appellant’s mental condition, I repeat, was relevant not only
to her capacity to form and the existence in fact or an intent
to cause death, but also to the additional and separate
elements of planning and deliberation.
R v More 1963 SCC
New trial ordered regard issue of specific
intent as the trial judge had not addressed
the presence of a depressive psychosis.
Insanity was not an issue.
R v McMartin. 1964 SCC
Appeal allowed as BC Court of Appeal
denied an application to introduce fresh
evidence of mental state of the accused not
going to insanity but to planning and
deliberation.
R v Balthazar 1974 Nova Scotia Supreme CourtAppeals Division
Misdirection and non direction by trial judge.
Failed to advise jury of lesser included offense of
manslaughter in a murder trial.
…even if insanity is the main, or indeed the only, defense
raised, it would be prudent for a trial judge to deal with such
other included offense because the jury may find that
although the accused was suffering from mental illness or
mental disorder, such was not of a nature to bring the case
within section 16 of the Code, yet such evidence of mental
illness or mental disorder may be relevant to the issue
whether the accused…..had the capacity to formulate the
specific intent.
R v Hanscom 1996-New
Brunswick Court of Appeal
accused killed wife’s lover after she left him and both of
them taunted him. Convicted of murder.
Judge dismissed the NCR option to the jury but did address
the mental disorder aspects and consumption of alcohol as
to whether they negated intent. She however made
disparaging remarks about the expert who said that the
accused suffered from an adjustment disorder and other
mental factors. She said that the experts evidence was
“feelings and speculation”. Appeal was allowed.
R v Robinson 2010 BC
Supreme Court
Head injury following Motorcycle accident
Depression and suicidal ideation
Marijuana abuse
Cocaine abuse 1 week earlier
Using prescription medications
Stabbed and killed girlfriend
Tried for murder-manslaughter
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110 ….In addition, evidence of a mental condition that falls
short of mental disorder that renders the accused NCR,
may raise a reasonable doubt as to whether the accused
had the necessary specific intent.
116 Where there is evidence of a mental condition relevant
to intent, this evidence must be considered along with all
the other evidence in determining whether the accused had
the intent requisite for murder. Such consideration does
not create the notion of diminished responsibility, which
does not exist in our law. Rather it recognizes that if the
accused was suffering from some sort of mental condition
at the time of the offense, that mental condition is a
circumstance that might affect whether or not he formed
the necessary specific intent.
R v Lavery 2012 Alberta Court
of the Queen’s Bench
Accused smothered wife
Had emotional and physical exhaustion
Clinical depression
Charged with 2nd degree murder
Convicted of manslaughter
Crown argued that doctors opinion regarding depression went to the
heart of the intent issue and should be excluded.
“Potential psychiatric consequences of a psychiatric condition are
best explained by a psychiatrist”.
The doctor opined on diminished responsibility and the judge took it
that he was expressing a psychiatric opinion and not drawing a legal
conclusion.
The judge understood that statement as compromised capacity.
R v Laird and Lasota-first degree
murder
Both were accused of killing a 13 year girl.
Suspected thrill kill and tried to dispose of body
Lasota had some alcohol, smoked some marijuana and
had some paranoia
Had been slashed in the arm by victim’s male friend in
recent past
Had girlfriend bring her to his apartment to talk about her
upcoming testimony re the male who had attacked him
Claims she threatened him with a scissors and he
subsequently stabbed her repeatedly
Voire Dire re admissability of psychiatric evidence to
address mental state at the time of offense
No mental illness, Some intoxication, Some paranoia,
some anger, some fear, ?some provocation
Sensitized and fearful because of recent slash
Evidence excluded
To coin a phrase, “[i]f on the proven facts a judge or jury
can form their own conclusions without help, then the
opinion of the expert is unnecessary”
Good review of R v Mohan and evidence excluded
R v Walle 2010 Alberta Court of
Appeal.
Walle suffered from Autism, developmental
delay and was drinking.
The court ruled that diminished capacity
could not be raised without expert testimony
or other evidence of mental illness.
The trial judge applied common sense
inference in concluding it was murder.
This was upheld by the court of appeal.
Conclusions
While NCRMD and Diminished Capacity are
important legal concepts they engage
scientific and psychiatric knowledge in
balancing the life and liberty of an accused
with the risk to the public. Debates at the
grass roots level in a court like this may
encourage further legal and scientific
research to guide emerging changes to how
our government plans the course for
individuals whose mental illnesses impacted
on their crimes.