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Note: Specimen jury instructions serve as a template that trial judges must adapt to the particular circumstances of each trial, not simply read out in whole. They are not designed to be delivered "as-is." More information about the use of specimen instructions is found in the Preface and A Note to Users, which you can find here.
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Defence 16.2: Mental Disorder – Raised after a finding of guilt by the jury

Note[1]

(June 2014)

[1]              You have found that (NOA) committed the offence of (specify). I now must ask you to consider one more important issue. You will now determine whether (NOA) should be found not criminally responsible for his/her act (or omission) by reasons of mental disorder.

[2]              A person is not criminally responsible if s/he suffered from a mental disorder at the time of the act (or omission) and, as a result, was not capable of appreciating the nature and quality of his or her act (or omission), or of knowing the act (or omission) was wrong. The issue has been raised whether (NOA) is exempt from criminal responsibility on this basis.

[3]              Every person is presumed not to suffer from a mental disorder. Exemption from criminal responsibility on this basis must be proved. I will now instruct you on a special rule on the burden of proof in relation to mental disorder.[2]

When the Crown raises the issue, give the following instruction:[3]

[4]              The Crown has now raised the issue of mental disorder. Our law says the appropriate time for the Crown to raise this issue is after a guilty verdict has been rendered.

[5]              You will recall that I earlier instructed you that the Crown must prove its case beyond a reasonable doubt. There is a lower standard with respect to whether (NOA) is not criminally responsible by reason of mental disorder. On that issue, the Crown must prove that it is more likely than not that (NOA) is exempt from criminal responsibility due to mental disorder.

When the accused raises the issue, give the following instruction:

[6]              (NOA) has now raised the issue of mental disorder as s/he is entitled to do by law. You will recall that I earlier instructed you that the burden of proof beyond a reasonable doubt was on the Crown and that (NOA) was not required to prove anything. The issue of mental disorder is an exception to this rule. (NOA) must prove that it is more likely than not that s/he is exempt from criminal responsibility due to mental disorder at the time the offence was committed. This is a lower standard than proof beyond a reasonable doubt.

NOTE: The trial judge must instruct the jury on the issue of expert evidence. Insert the instruction on Expert Opinion Evidence (Final 10.3) with necessary modifications. If already given, remind the jury of the use to be made of expert evidence. It may also be necessary to remind the jury of the instruction on Assessment of Evidence (Final 9.4).

[7]              To decide whether (NOA) is exempt from criminal responsibility by reason of mental disorder, ask yourselves the following questions:

1.   Is it more likely than not that (NOA) was suffering from a mental disorder at the time of the act (or omission)?

2.   Is it more likely than not that (NOA)’s mental disorder made him/her incapable at the time either[4] of (a) appreciating the nature and quality of the act (or omission) or (b) knowing the act (or omission) was wrong?

I will now review each of these questions with you.

[8]              First - Is it more likely than not that (NOA) was suffering from a mental disorder at the time s/he committed the act (or omission)?

A mental disorder is a disease of the mind.[5] A disease of the mind is any illness, disorder, or abnormal condition that impairs the human mind and its functioning. A disease of the mind does not include a self-induced state caused by alcohol or drugs,[6] or transitory mental states, such as hysteria or concussion[7] .

This is the legal definition of disease of the mind and it is the definition you must apply, not any other definition that may have been used by counsel or the experts. I tell you as a matter of law that (specify mental condition claimed by (NOA)) is a disease of the mind. It is for you to decide whether it is more likely than not that (NOA) was suffering from (specify mental condition claimed by (NOA)) at the time of the act (or omission).

(Review relevant evidence here.)

If your answer to this question is yes, go on to the next question. If your answer is no, then (NOA) is not exempt from criminal responsibility due to mental disorder.

[9]              Second - Is it more likely than not that (NOA)’s mental disorder made him/her incapable at the time either of (a) appreciating the nature and quality of the act (or omission) or (b) knowing the act (or omission) was wrong?

1.   A person does not appreciate the nature and quality of an (act (or omission) if he or she does not know what he or she is doing, or does not foresee and understand the consequences of his or her act (or omission). The consequences refer only to the physical consequences, not the legal consequences.

(Review relevant evidence here.)

2.   Next, ask yourselves whether the mental disorder deprived (NOA) of the capacity to decide rationally whether the act (or omission) was wrong and, therefore, to make a rational choice about whether to do it.[8]

“Wrong” means morally wrong, judged by the everyday standard of the ordinary person. It does not mean legally wrong, and it does not mean wrong according to (NOA)’s own personal moral beliefs.

(Review relevant evidence here.)

To reach the special verdict of not criminally responsible, it is not necessary that you find that (NOA) was incapable by reason of mental disorder of both appreciating the nature and quality of his/her act (or omission) and knowing that the act (or omission) was wrong. As long as each of you finds that his/her mental disorder made him/her incapable of either one or the other, you do not have to agree on which one.

Ask yourselves whether it is more likely than not that (NOA)’s mental disorder at the time made him/her incapable either of (a) appreciating the nature and quality of the act (or omission) or (b) incapable of knowing the act (or omission) was wrong.

If the answer to this question is yes, then you must find (NOA) not criminally responsible by reason of mental disorder.

When an accused asserts the defence of mental disorder and refuses to be interviewed by the psychiatrist for the Crown or to fully participate in the assessment process, the jury should be instructed that they may take this into account in weighing the evidence of the defence. This instruction must not be given if the Crown raises mental disorder, as the accused is entitled to rely on the right to silence. [9]

(NOA) has raised the issue of his/her mental capacity and has led expert evidence to support that position. However, s/he has refused to be interviewed by the psychiatrist for the Crown (or failed to fully participate in the assessment process). (NOA)’s refusal may cause you to put less weight on the evidence supporting his/her defence of mental disorder. This is a matter for you to decide based on all the circumstances.

[10]           Your verdict must be based solely on your consideration of all the evidence, the submissions of counsel, and the law as I have explained it to you, and must not be influenced by a consideration of the consequences of a special verdict of not criminally responsible. However, you should know that our law provides that persons who are found not criminally responsible by reason of mental disorder will not be set free if they pose a significant threat to public safety.

The jurors should be reminded about the procedures regarding their deliberations. See Final 12.1 to 12.4.

[1] The defence of mental disorder may be addressed in two ways. The accused can raise the issue at any time, including after the jury has rendered a verdict, but it must be raised before the jury is discharged. If the defence puts mental capacity short of mental disorder into issue directly or indirectly in the normal course of the trial, the Crown is entitled to raise the issue of mental disorder during the trial proper. Otherwise, the Crown may raise the issue only after the jury has rendered a guilty verdict but before the jury is discharged. The present instruction (16.2) is for use when the issue is raised after a guilty verdict has been rendered. When the issue is raised during the trial proper, use instruction 16.1. Once the jury has been discharged, a judge has no jurisdiction to try the issue.

It is for the trial judge to decide, as a question of law, whether the condition claimed by the accused is a mental disorder and it is for the jury to decide whether in fact the accused was suffering from that disorder.

The defence of mental disorder may manifest in several different ways, depending on the factual context. For example, the accused could claim that he or she was not acting voluntarily; thus, the defence is insane automatism, which denies the essential element of voluntariness in the actus reus. Or, the accused could argue that he or she did not have the mens rea to commit the offence because, for example, he or she thought the thing he or she was chopping was a lettuce when in fact it was someone’s head. Or, the accused may seek a justification or excuse from culpability on the basis that the victim was “evil incarnate” and going to destroy the world, so had to be destroyed first (R. v. Chaulk, [1990] 3 S.C.R. 1303).

[2] If the accused testifies, the instruction on W.(D.) (Final 9.6) does not apply.

[3] The Crown may seek a finding that the accused is not criminally responsible by reason of mental disorder in only two situations. First, it may do so after the accused has been found guilty, but before the verdict is entered. Second, it may do so where the accused puts his or her mental capacity in issue but is not seeking a finding that he or she is not criminally responsible by reason of mental disorder. See: R. v. Swain, [1991] 1 S.C.R. 933.

[4] There are two routes to a finding of incapacity due to mental disorder in s. 16 of the Criminal Code. Depending on the evidence, the jury may be instructed on one or both.

[6] See, R. v. Bouchard-Lebrun, 2011 SCC 58, at paras. 69-70. In R. v. Turcotte, 2013 QCCA 1916, at para. 118, the Quebec Court of Appeal held that in a case where mental disorder is established and there is evidence of self-induced intoxication, the jury must be instructed to determine whether the accused has established that his or her incapacity is the result of the mental disorder, and not the intoxication.

[7] See R. v. Cooper, [1980] 1 S.C.R. 1149, at p. 1159.

[8] See R. v. Oommen, [1994] 2 S.C.R. 507, at 516. See also, Joan Barrett and Riun Shandler, Mental Disorder in Canadian Criminal Law, (Toronto: Thomson Carswell, 2006) (looseleaf updated).

[9] See R. v. Charlebois, 2000 SCC 53. See also: R. v. Worth (1995), 98 C.C.C. (3d) 133 (Ont. C.A.); R. v. Sweeney (No. 2) (1977), 35 C.C.C. (2d) 245; R. v. Stevenson (1990), 58 C.C.C. (3d) 464 (Ont. C.A.).