Lec 5/ Ch 8

Question 1

2 elements to establish criminal guilt

• actus reus
• mens rea
• 4 issues that can question the 2 elements

Answer 1

• 1. Actus reus = wrongful deed
• 2. Mens rea = criminal intent
• These elements are found beyond a reasonable doubt for a guilty verdict
• Issues that can question the 2 elements
  
  • Issues of fitness, insanity, automatism, MH

Question 2

• Unfit to stand trial
• acquittal
• NCR vs acquittal
• R. v. Pritchard (1836) - 3 criteria
• Bill C-30 - 3 criteria
• length of time in custody for a fitness eval

Answer 2

• unfit → NCRMD → RB
• Unfit to stand trial: defendant is unable to conduct a defence at any stage of the proceedings due to MI
• Once offender is unfit to stand trial, they are NCR
  
  • NOTE: this is not an acquittal (free of charge)
• The offender’s case is sent to a review board w/ 5 members
  
  • Chair = judge; At least 1 member = psychiatrist
• R. v. Pritchard (1836)
  
  • 3 criteria were delineated (precisely described)
    
    • 1. intentionality
    • 2. Whether the defendant can plead to the indictment (charge)
    • 3. Whether the defendant has sufficient cog capacity to understand the trial proceedings
• Bill C-30
  
  • Unfit, esp due to MD
    
    • A) understand the nature of the proceedings
    • B) understand the possible cons of the proceedings
    • C) communicate w/ counsel
• Bill C-30
  
  • length of time in custody for a fitness eval
    
    • 5-day limit for court-ordered assessments
    • 30-day limit for extensions
    • 60-day limit for length of detention
  • eval can occur while the defendant is in detention, outpatient, or in-patient facility
  • Found the avg length for eval = 3 wks
  • 88% of eval were in in-patient facilities

Question 3

Issue of Fitness

• assumption
• burden of proof
• is it common

Answer 3

Raising the Issue of Fitness

• CCC: defendant is assumed fit to stand trial unless the court thinks otherwise
• Burden of proving unfitness is on the party who raises the issue
• Fitness Evaluations are uncommon

Question 4

Who Can Assess Fitness?

• US, AUS vs CAN

Fitness Instruments

• screening
• Comprehensive
• FITR

Answer 4

• US and AUS psychologists & psychiatrists
• CAN only MD
  
  • do not need background in psychiatry or forensic pop
  • psychologist assist w/ testings

Fitness Instruments

• Screening: screen out defendants who are competent
• Comprehensive fitness assessment
• Fitness Interview Test Revised (FIT-R) – for Canadians
  
  • Semi-structured interview
  • Assess 3 psychological abilities CCC
  • 1. Understand the nature/ object of proceedings
       * Knowledge of criminal procedure
       
       • i. defendant’s understanding on arrest process
       • ii. nature and severity of current charges
       • iii. the role of key participants
  • 2 Understand the possible cons of proceedings
    
    • understand personal involvement in and importance of proceedings
      
      • i. understand the range and nature of possible penalties and defences
  • 3 Communicate w/ counsel
    
    • Ability to participant in defence
      
      • i. defendant’s ability to communicate facts
      • ii. Defendant’s ability to relate to his/her attorney
      • iii. Defendant’s ability to plan legal strategy
  • Each response is rated on a 3-point scale (0,1,2)
    
    • 0 = no impairment
    • 2 = severe impairment
• Evaluator decides defendant’s overall fitness
  
  • 3 stages of final decision
    
    • 1. existence of MD
    • 2. capacity on 3 psychological abilities abv
    • 3. Examine prev info
• not based on a cut-off score; each rating = separate judgement

Question 5

What Happens after a Finding of Unfitness?

• process
• prima facie
• not guilty if…
• absolute discharge conditions

Answer 5

What Happens after a Finding of Unfitness?

• Proceedings is halted until they are fit
• defendant can be detained in a hospital/ conditionally discharged
• reassessed for fitness w/in 45 days → 90 days → annually by RB → Prima facie
  
  • Prima facie case: crown w/ sufficient evidence brings the case to trial every 2 years or when defendant requests
• Not guilty: if there isn’t sufficient evidence to prosecute → case dropped; defendant not guilty
• C-10 absolute discharge if defendant is (only by court, not RB)
  
  • permanently unfit
  • no a sig threat to public safety
  • it is in the interests of administration of justice

Question 6

Mental State at Time of Offence

• Insanity
• 3 conditions of insanity
• assumption
• Bill 68/ Brian’s law/ treatment orders

Answer 6

• Insanity: impaired mental or emotional functioning that affects perceptions, beliefs, and motivations at the time of the offence
• removes the responsibility for doing the act b/c of incontrollable impulses or delusions (ex hear voices)
• Conditions for insanity defence (seen in CAN, US, UK)
  
  • 1. suffering from MD
  • 2. do not know the nature and quality of the act
  • 3. do not know the act is wrong
• Assumption: court assumes defendant has no MD unless
  
  • defendant raises this up
  • Crown cannot do so unless there is a guilty verdict (then you can argue NCRMD)
• Bill 68 or Brian’s law/ community treatment orders
  
  • ppl w/ MD released in the community need to report to a MH caregiver regularly
  • they can be released only if they take meds

Question 7

Raising the Issue of Insanity

• frequency

Assessing Insanity

• instrument name
• 5 scales
• is it a cut off

Answer 7

Raising the Issue of Insanity

• Few defendants use insanity defence

Assessing Insanity

• Rogers: developed The Criminal Responsibility Assessment Scales (R-CRAS) - psychiatric assessment
• 5 scales
  
  • 1. Patient reliability/malingering (faking)
  • 2. Organicity (brain damage)
  • 3. Psychopathology (MD)
  • 4. Cog control
  • 5. Behavioral control
• R-CRAS not a cut-off score
• Clinician use this info to decide defendant’s mental status and criminal responsibility

Question 8

What Happens to a Defendant Found NCRMD?

• 3 dispositions
• 4 criteria considered
• Capping
• Bill C 54: high threat & conditions/abs discharge

Answer 8

3 dispositions after NCRMD finding

• Absolute discharge: defendant is released into community w/o restrictions to b
• Conditional discharge
  
  • Defendant is released w/ conditions
• Detention in hospital
• NOTE**: defendant sent to psychiatric facility need nor comply w/ treatment
• If they deteriorate and can’t make treatment decisions, may be forced treatment

4 criteria considered to decide NCRMD disposition

1. Public safety
2. Mental state of the defendant
3. Reintegration into society
4. Other needs of the defendant

• Bill C-30 – introduced capping
• Capping: max period of time a person w/ MI can be affected by their disposition
  
  • Once the cap is reached the defendant may be released w/o restrictions
  • If a defendant is dangerous, sent to a secure hospital
  • If defendant is MD dangerous/ violent offender, increase the cap
• Crocker et al 2011
  
  • dynamic risk factors (i.e. factors that are changeable) rather than static factors (i.e. factors that cannot be changed – one’s criminal history) were related to RB decisions
• Bill c-54 – Those who are a threat/high risk cannot have conditional or absolute discharge
  
  • Only the court can lift this

Question 9

Automatism

• automatism
• R. v. Parks, 1992 - sleepwalking
• Is automatism addressed in CCC
• 2 forms of automatism
• 2 stage process to address defences of automatism
• Circumstances of Noninsane automatism
• How Do NCRMD and Automatism Differ?
• R. v. Daviault 1994 - intoxication & non insane automatism
• General intent crime
• Bill C72 - intoxication

Answer 9

• Automatism: unconscious involuntary b; the person committing the act is not aware of what he or she is doing
• R. v. Parks, 1992
  
  • late at night, drove to parents-in-law house; stabbed them
  • turned himself in; charged and tried for murder and attempted murder
  • Parks’s defence = sleepwalking (form of automatism)
  • He was acquitted (free of criminal charge)
• CCC does not specifically address automatism as a defence; judges rely on own judgement and case law
• SCC: 2 forms of automatism
  
  • Noninsane
  • Insane
• Noninsanee automatism: involuntary b that occurs b/c of an external factor; verdict -> “not guilty”
• Insane automatism: involuntary action due to MD → NCRMD
• 2 stage process to address defences of automatism
• 1. is there sufficient evidence a jury can find the defendant’s b was involuntary
     * Ex. psych assessments, severity of triggering event, history of automatic b
• 2. judge determines if it is insane or non insane automatism
     * If condition is due to an external factor, defence can argue noninsane → Judge and Jury have to decide if the defendant acted involuntarily
     * If the judge decides the condition is due to MD, the defence can argue insane automatism
     
     • Case proceeds as a NCRMD case
• • Circumstances of Noninsane automatism
    
    • Physical blow (ex. to head)
    • Physical ailments (ex. stroke)
    • Hypoglycemia (ex. low blood sugar)
    • CO poisoning
    • Sleepwalking
    • Involuntary intoxication
    • Psychological blow from an extraordinary external event that may cause dissociative state in normal person
• NOTE: Daily stresses that may lead to dissociative states is not sufficient for a automatism defence
• Dissociative states from psychological factors (ex. grief, mourning, anxiety) are consistent w/ diseases of the mind -> may be applicable for insanity defence

How Do NCRMD and Automatism Differ?

• NCRMD -> defendant maybe sent to MH facility
• Noninsane/successful automatism -> defendant is not guilty, and released w/o conditions
• Insane automatism -> NCRMD ruling
• • R. v. Daviault 1994
    
    • Mr D drank lots of OH and sexually assaulted woman in wheelchair
    • Pharmacologist testified (expert witness): person w/ this lv of OH may suffer from blackout - no awareness his actions
    • Initial ruling: Mr. D acquitted (non-insane automatism)
    • appeal court: reversed decision
      
      • Self-induced intoxication leading to a state similar to automatism is not a defence for general intent offence (offence that has an intention to commit)
      • General intent crime: prosecution proves that defendant has intention to commit crime (don’t need to prove intention to cause harm)
• Bill c-72: intoxication is not a defence for violent crimes

Question 10

• 2 options to deal with Offenders Who Are Mentally Ill
• Are People with Mental Illnesses Violent?
• Types of Offences Committed by People with Mental Illnesses

Answer 10

Dealing with Offenders Who Are Mentally Ill

• Police have 2. Options
• 1. If person w/ MD is a threat to self or others, police can bring them to hospital or MH facility for assessment and possible treatment
• 2. Police may charge and arrest person -> MH services obtained through criminal justice system
• Violence Conclusion: those w/ schizo may be more likely to commit violent offence; those w/ other MD -> less likely

Types of Offences Committed by People with Mental Illnesses

• Overall those w/ MD were similar to other offenders and not distinguishable based on offence type

Question 11

Why are there High Rates of Mental Illness in Offender Populations?

• M vs F MD
• 3 explanations why there is high MD among offenders

Answer 11

• An offender can have MD w/o unfit or NCRMD verdict
• Lafortune et al. (2010)
  
  • 60% of 700 offenders sent to ST correctional facilities hv at least one MD
  • M MD: psychosis, anxiety ,drug dependencies
  • Females: PD, anxiety, drug dependencies
• 3 explanations why there is high MD among offenders
• 1 those w/ MD arrested at a disproportionately higher rate.
• 2 those w/ MD get caught more easily.
• 3 those w/ MD are more likely to plead guilty

Question 12

Treatment of Offenders with Mental Disorders

• 2 options of treatment
• community treatment order
• diversion
• MH courts

Answer 12

Treatment of Offenders with Mental Disorders

• 2 treatment options for those w/ active psychotic symptoms (ex. Delusion, hallucinations)
  
  • Medication: control psychotic s symptoms
  • BT: ensure patient take meds regularly
• Overarching treatment goal: reintegrate offender to society
• Community treatment order: offender w/ MD can live in community and is required to undergo treatment or detention condition worsens
• Diversion: not to prosecute, send offender to a treatment program rather than going thru court process
• • MH courts designed for those in need of fitness examinations and CR assessments, guilty pleas, and sentencing hearings
• Redirects those w/ MH needs MH care system rather than CJS
• MH courts offer rehab; alternative to serving in prison

Question 13

Lecture

• Civil case
• Criminal case
• 5 Factors considered in the sentence
• 5 sentences/penalties
• • Bias against MD
• MD and violence

Answer 13

• Civil case: private case in which a plaintiff sues a defendant
• Criminal case: Crown (states) prosecutes an accused
• If accused is found guilty, the judge must decide the appropriate sentence, considering:
  
  • seriousness
  • sentences possible
  • (scare) Prevent offender/ others commit similar crime
  • do they denounce the harm
  • rehabilitation
• Judges may impos different kinds of sentences or a combination of penalties, including:
  
  • A fine
  • Restitution: offende pay costs of injuries/ damage
  • Probation: release with conditions;
  • Community service
  • Imprisonment
• Bias against those w/ MD: those w/ MD are treated more cautiously
• Those w/ MD are just as violent as those w/ MD