NCJ Number
56750
Journal
CANADIAN PSYCHIATRIC ASSOCIATION JOURNAL Volume: 23 Issue: 1 Dated: (1978) Pages: 23-27
Date Published
1978
Length
5 pages
Annotation
THIS PAPER ON THE INSANITY DEFENSE IN CANADA REVIEWS THE THE DIFFICULTIES IN DEVELOPING A MORE GENERALLY ACCEPTED TEST OF CRIMINAL RESPONSIBILITY AND SOME ALTERNATIVE ROUTES THAT HAVE DEVELOPED AT THE COURTROOM LEVEL.
Abstract
THE INSANITY DEFENSE CONSISTS OF TWO FACTORS: MENTAL ILLNESS AND THE RESULTING INCAPACITY. THE M'NAGHTEN TEST, WHICH MAKES A CONGNITIVE INCAPACITY OR INCAPACITY OF 'KNOWING' THE EXCUSING CONDITION, IS THE BEST KNOWN AND OLDEST OF CANADA'S INSANITY TESTS. THE TEST IS BASED PARTLY ON THE DEFENDANT'S INCAPACITY TO 'APPRECIATE' THE IMPLICATIONS OF THE CRIMINAL ACT AT THE VOLITIONAL LEVEL, I.E., THE OFFENDER MAY HAVE BEEN AWARE OF WHAT HE OR SHE WAS DOING OR MAY HAVE EVEN 'APPRECIATED' THE CONSEQUENCES OF THE ACT BUT THE WILL WAS OVERPOWERED AT THE MOMENT OF COMMISSION. THE PROBLEMS THAT JUDGES HAVE IN POINTING OUT THE DIFFERENCES BETWEEN 'APPRECIATING' AND 'KNOWING' STEM FROM THERE BEING NO FACTUAL OR EVEN SEMANTICAL DIFFERENCES. COMPLICATING THE DIFFICULTY ARE TWO OTHER FACTORS: (1) THE CANADIAN LAW ESTABLISHES A PRESUMPTION OF SANITY, AND THE DEFENSE MUST DISPROVE THIS PRESUMPTION; AND (2) THE END RESULT OF A SUCCESSFUL INSANITY DEFENSE MEANS AN INDETERMINATE CONFINEMENT TO A MENTAL INSTITUTION. THE DIFFICULTIES OF INTRODUCING EMOTIONAL FACTORS IN CRIMINAL TRIALS HAVE LED LAWYERS AND PSYCHIATRISTS TO DEVISE ALTERNATIVE ROUTES TO GIVE THOSE FACTORS PERTINENT CONSIDERATION: THE DEFENSE OF AUTOMATISM (THE STATE OF A PERSON WHO, THOUGH CAPABLE OF ACTION, IS NOT CONSCIOUS OF WHAT HE IS DOING) AND THE 'INTENT' DEFENSE WHICH MAINTAINS THAT SOME CONDITION SUCH AS MISTAKE, ACCIDENT, PROVOCATION, DURESS, ALONG WITH INSANITY, HAS DECREASED OR EXONERATED THE DEFENDANT'S LIABILITY TO PUNISHMENT FOR AN OFFENSE. THE INTENT DEFENSE OFFERS A MIDDLE ROAD TO THE INTRODUCTION OF EMOTIONAL FACTORS AND ALLOWS A SUFFICIENTLY ACCEPTABLE LEVEL OF RESPONSIBILITY AND PUNISHABILITY. REFERENCES AND A SUMMARY IN FRENCH ARE PROVIDED. (DAG)