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142 MANITOBA LAW JOURNAL |VOLUME 35 NUMBER 1 Following from this example, it might be suggested that DNA evidence did not provide a good test of the ability of Canadian courts to evaluate the complicated issues raised by DNA-like forms of forensic testimony. This does not mean that the DNA cases are without interest, however. It merely suggests that wariness is appropriate before assuming that, because the DNA problem is “solved”, the legal system is adequately prepared for the flood of complicated statistical evidence that a full implementation of the NAS report would generate. The subpopulation cases demonstrate how a scientific concern over adequate data became one about the legal uses of those data, and those concerns were different from those of scientists. Translating scientific techniques in a legal context changes them. Likewise, when DNA-type approaches are applied to traditional forensics, the results will look like neither DNA nor traditional forensics. What might be taken from the DNA cases is the pattern that these cases followed and at the kind of problems that were raised by them. In doing so, members of both the forensic and legal communities could be prepared for the inevitable questions that will be raised by this kind of testimony. Referring back to the four observations about the Canadian DNA cases, one can imagine how courts might question other forensic techniques when presented in a similar manner. In the case of DNA evidence, there were questions about the admissibility of the results of a new technique. This would not be the case if, for example, fingerprinting was to be questioned. It seems likely that courts will continue to admit conventional forensic results up and until there is a significant scientific controversy over the reliability of those results. Thus, as was the case with DNA evidence, some sort of scientific controversy will emerge before admissibility questions are raised in the courtroom. From the DNA cases, one notes that there is a period of scientific controversy during which courts can reach decisions that will be seen ultimately to be scientifically unfounded. Appropriate use of scientific actors, in the case of DNA, population geneticists, can be helpful in making sure that decisions taken during the controversy are reasonable, but the only solution is the quick resolution of the scientific controversy. With DNA evidence, the DNA forensic community was responsive to the questions raised in the courts, leading to a fairly speedy resolution of the subpopulation controversy. In the case of traditional forensic techniques, it may be possible to ensure that the scientific controversies that develop are resolved as quickly as possible. The problem that must be resolved by the forensic scientists is not theirs alone but rather one that will ultimately be decided by legal actors. This means that to the extent a dialogue develops among those working on new ways of doing conventional forensics, it is a dialogue that must include the law in a very fundamental way. If Canadian forensics is to be reshaped, then the law will have a big role to play in that reshaping.

A Tough Pill to Swallow: Criminal Culpability Arising From an Avoidable NCR State K E I T H L E N T O N * “Crimes are not to be measured by the issue of events, but by the bad intentions of men.” - Cicero 1 I. INTRODUCTION T he Criminal Code of Canada 2 formally sets out the defence available to an accused who was mentally disordered at the time he or she committed a crime. The premise that the mentally disordered ought not to be held responsible for their moral and legal transgressions is not new. It has been both a long-standing principle of moral philosophy 3 and accepted legal doctrine since ancient times. 4 Formerly the “insanity defence”, the legal defence on which the mentally disordered may rely is now referred to as “not criminally responsible on account of mental disorder” (NCR). 5 The benefit of the doubt is given to one who commits a crime while mentally disordered, insofar as he or she is legally presumed to have had no bad intention. Is this lack of bad intention necessarily true in all cases What if the person let his or her mental disorder worsen, despite being able to prevent it, and this precipitated a violent crime Might there have been “bad intention” in that case By neglectfully or intentionally causing his or her mental illness to deteriorate, does he or she thereby commit an offence known to the law If not, should such * 1 2 3 4 5 Third year student-at-law, Faculty of Law, University of Manitoba. John Bartlett, ed, Familiar Quotations, 13th ed (New York: Little, Brown and Company, 1955) sub verbo “Cicero”. Criminal Code, RSC 1985, c C-46 [Criminal Code]. Aristotle, Nicomachean Ethics Book III, translated by WD Ross (Greece: 350 BCE), online: Massachusetts Institute of Technology . Babylonian Talmud, Bava Kama, 87a. Criminal Code, supra note 2 at s 16. See also R v Trueman, (1992) 80 Man R (2d) 72, where the recently amended NCR defence (as opposed to the “insanity defence”) was first utilized in Manitoba.

A Tough Pill to Swallow: Criminal Culpability<br />

Arising From an Avoidable NCR State<br />

K E I T H L E N T O N *<br />

“Crimes are not to be measured by the issue <strong>of</strong> events, but by the bad intentions <strong>of</strong> men.”<br />

- Cicero 1<br />

I.<br />

INTRODUCTION<br />

T<br />

he Criminal Code <strong>of</strong> Canada 2 formally sets out the defence available to an<br />

accused who was mentally disordered at the time he or she committed a<br />

crime. The premise that the mentally disordered ought not to be held<br />

responsible for their moral and legal transgressions is not new. It has been both a<br />

long-standing principle <strong>of</strong> moral philosophy 3 and accepted legal doctrine since<br />

ancient times. 4 Formerly the “insanity defence”, the legal defence on which the<br />

mentally disordered may rely is now referred to as “not criminally responsible on<br />

account <strong>of</strong> mental disorder” (NCR). 5<br />

The benefit <strong>of</strong> the doubt is given to one who commits a crime while mentally<br />

disordered, ins<strong>of</strong>ar as he or she is legally presumed to have had no bad intention.<br />

Is this lack <strong>of</strong> bad intention necessarily true in all cases What if the person let his<br />

or her mental disorder worsen, despite being able to prevent it, and this<br />

precipitated a violent crime Might there have been “bad intention” in that case<br />

By neglectfully or intentionally causing his or her mental illness to deteriorate,<br />

does he or she thereby commit an <strong>of</strong>fence known to the law If not, should such<br />

*<br />

1<br />

2<br />

3<br />

4<br />

5<br />

Third year student-at-law, <strong>Faculty</strong> <strong>of</strong> <strong>Law</strong>, University <strong>of</strong> Manitoba.<br />

John Bartlett, ed, Familiar Quotations, 13th ed (New York: Little, Brown and Company, 1955) sub<br />

verbo “Cicero”.<br />

Criminal Code, RSC 1985, c C-46 [Criminal Code].<br />

Aristotle, Nicomachean Ethics Book III, translated by WD Ross (Greece: 350 BCE), online:<br />

Massachusetts Institute <strong>of</strong> Technology .<br />

Babylonian Talmud, Bava Kama, 87a.<br />

Criminal Code, supra note 2 at s 16. See also R v Trueman, (1992) 80 Man R (2d) 72, where the<br />

recently amended NCR defence (as opposed to the “insanity defence”) was first utilized in<br />

Manitoba.

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