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This Legal Analysis Will Examine

This legal analysis will examine the duly required process which is necessary when looking at a case where the Not Criminally Responsible on Account of Mental Disorder (NCRMD) defence is being used. In order to put the accused, Ayla, through any form of proceedings, it is necessary to assess a number of issues on behalf of the legal system. Ayla is currently pleading NCRMD in her case where she fatally stabbed her partner Jondalar while watching a movie at a theatre. She is currently receiving treatment in temporary custody where she is responding well to medication and psychiatrists will be testifying that Ayla suffered a psychotic episode during the incident and is schizophrenic. An accused individual that has been found NCRMD is not immediately acquitted of their charges, but is held to not be criminally responsible and may be held in specific form of custody or be supervised in the community (Verdun-Jones, 2015).

The issue of whether or not an accused is fit to stand trial is exclusively concerned with the state of mind the individual is in at the time of their trial and whether or not the individual is able to fathom the purpose of the trial proceedings or able to communicate with their appropriate counsel (Verdun-Jones, 2015). Thus, it is important to assess Ayla’s fitness to stand trial. Being “unfit to stand trial” is defined by Section 2 of the Criminal Code as, “unable on account of mental disorder to conduct a defence at any stage of the proceedings before a verdict is rendered or to instruct counsel to do, and, in particular, unable on account of mental disorder to (a) understand the nature or object of the proceedings, (b) understand the possible consequences of the proceedings, or (c) communicate with counsel.”

When evaluating the Ayla’s fitness to stand trial, one can look at Whittle (1994) where Justice Sopinka stated the test for unfitness to stand trial “requires limited cognitive capacity to understand the process and to communicate with counsel.” Furthermore, in Taylor (1992), a similar stance to Judge Sopinka’s statement was backed by the Ontario Court of Appeals where the limited cognitive capacity test was looked at to establish whether or not the accused person was fit to stand trial, and it was mentioned that the presence of delusions had no barring in deciding a person’s ability to stand trial. The only time delusions would be considered to rule a person unfit to stand trial would be if the person were unable to understand the judicial process in which they were being put through or if they were unable to provide their counsel with the necessary facts (Taylor, 1992). In Ayla’s case, even her schizophrenic state would not be able to render her unfit to stand trial as in hindsight she would still be able to communicate to counsel and understand the judicial process because of her written statements regarding her case.

Since the Canadian system affecting criminal law is fabricated on the assertion that no individuals should be charged and convicted of an offence where they are ultimately not aiming to do wrong, it can leave open some fundamental questions regarding the just way to apply criminal law to those that are burdened with a mental disorder. In circumstances like this, the defence of “not criminally responsible on the account of mental disorder” (NCRMD) can be applied.

Being able to raise NCRMD as a defence possibility requires meeting a specific and strict criterion. In the Bouchard-LeBrun case (2011), an important issue regarding voluntariness was brought up by Justice LeBel, of the Supreme Court of Canada. It was mentioned that only those who voluntarily commit a criminal act can be found criminally responsible (Bouchard-LeBrun, 2011). If one were to raise the issue of voluntariness in Ayla’s case, it could be argued that her actions were voluntary. However, since the NCRMD defence is concerned with an individual’s state of mind at the time of the offence, in Ayla’s case NCRMD as a defence is a possibility due to her actions being conducted during a major psychotic episode.

In order to assert the defence of NCRMD, it is important to look at Section 16(1) of the Criminal Code which states that, “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.” The Criminal Code states that a “mental disorder” is “a disease of the mind” in section 2. Section 16(1) is derived from the M’Naghten Rules and is considered to be the modern NCRMD defence in Canada with its specific criterion (Verdun-Jones, 2015). First, what must be established according to Section 16(1) is that during the time of the offence the accused was in fact experiencing a mental disorder which is considered a preliminary step. Second, the two-stage statutory test must be completed. In the two-stage statutory test, the first stage is characterizing the mental state of the accused and the second stage is concerned with the effects of the mental disorder (Bouchard-LeBrun, 2011). For Ayla’s situation, her mental state would be characterized as psychotic during the time of the events and the effects of the psychotic episode rendered her incapable of knowing her actions were wrong. According to the Stone case (1999), it is necessary to determine whether a particular mental condition can be classified as a “disease of the mind” legally. To determine this, in Ayla’s case, one has to consider if her condition included psychotic symptoms such as delusions, hallucinations, disorganized thinking, abnormal motor behaviour, and negative symptoms—which she experienced through her disorder (Verdun-Jones, 2015).

Since it has been established that Ayla was mentally disordered when conducting her actions, the next steps in order to successfully achieve a NCRMD defence are to establish “(1) that the accused person lacked the capacity to appreciate the nature and quality of the act or omission that forms the basis of the charge against him or her or (2) that the accused person lacked the capacity to know the act or omission was wrong” as mentioned by Verdun-Jones (2015, p. 208). In Ayla’s case, she fully appreciates that she is killing Jondalar and that it is a crime to do so. However, due to her mental disorder she is unable to fathom the reality of her actions. She believes that she has heard messaged from God telling her that Jondalar is the incarnation of the Devil and needs to be eliminated. As a result, she appreciates the nature and quality of her actions. Therefore, the first part of the NCRMD defence does not apply to her. Clearly Ayla would believe she is morally wrong instead of legally wrong since her actions are based on instructions given by God. If she was legally wrong, this part of the NCRMD would not apply to her. Furthermore, in Chaulk (1990), the SCC settled on the issue that “wrong” in section 16(1) means “wrong according to the ordinary moral standards of reasonable members of society.”

In application, the definition of “wrong” is best explained in the Landry case (1991), where the accused was found NCRMD due to the fact that his mental condition rendered him unable to consider murder as morally wrong. In Oommen (1994), it was pointed out that the accused should be relieved of criminal responsibilities if they are unable to distinguish right from wrong due to their mental disorder causing them to believe fictitious circumstances. This applies back to Ayla directly as she was acting on the circumstances which her mental disorder presented her. Thus, she was unable to clearly determine right from wrong due to honestly believing in her circumstances.

Once it has been established that the accused is able to successfully raise the defence of NCRMD, the adjacent step is to obtain the appropriate disposition. Previous to 1992, accused persons that were labelled or found as NCRMD were kept in psychiatric facilities (Verdun-Jones, 2015). This form of detention however was found to be in violation of sections 7 and 9 of the Charter in the Swain case (1992), which accompanied by the SCC caused for the relevant provision of the Criminal Code to be invalid. Because of this change, the Criminal Code was amended (Verdun-Jones, 2015). Due to the rectifications, under section 672.38 of the Criminal Code review boards were established nationwide in each province. The reason being to offer a fair individual assessment of the accused and to subsequently make a disposition that not only attempts to provide opportunities to treat mental disorders, but also protects the public. As mentioned by Verdun-Jones (2015), when choosing a disposition there are three options available: absolute discharge, conditional discharge, and an order to hold the accused person in custody in a psychiatric facility.

The factors that the review board must take into account when making a decision are the accused’s mental state, the reintegration aspect, the need to protect the public, and the needs of the accused (Verdun-Jones, 2015). The appropriate disposition in regards to Ayla appears to be a conditional discharge. In Winko (1999), the SCC states that unless the accused is perceived as a “significant threat to the safety of the public” then an absolute discharge can be ordered. In the writer’s opinion, Ayla can still be perceived to be a threat to the public due to suffering from psychotic episodes which is what caused her to murder Jondalar. Thus, absolute discharge as a disposition is ruled out. If one were to look at the accused’s condition at the time of the hearing instead of during the offence, which is what was done in R. v. Wodajio (2005), then it could be argued that Ayla is well and does not pose a threat. This also favours Ayla receiving a conditional discharge since she is currently on medication. Furthermore, it presents the possibility of Ayla returning to her former state if she were to stop taking her medication.

NCRMD as a defence can be pled by any accused individual that appears to be suffering from a mental disorder, but to assert a successful NCRMD defence the aforementioned criterion needs to be met. Moreover, it must be established in full that the accused person in fact had a mental disorder that not only deprived them of the capacity to appreciate the nature and quality of the act or omission, but also that it deprived them of knowing their actions were wrong. In Ayla’s case, in the writer’s opinion, she was given a conditional discharge.

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