Download PDF - Robson Hall Faculty of Law

146 MANITOBA LAW JOURNAL |VOLUME 35 NUMBER 1
it is uncontroversial that Li was suffering from a “disease of the mind” 12 that
qualified him for the NCR defence. As heinous as the killing was, the NCR
defence was properly applied.
The issue at hand, which might be termed as “the descent into an avoidable
mentally disordered state”, or a “failure to abate one’s mental illness” is, of course,
not at all unique to or especially prolific in Manitoba; nevertheless, the examples
of Li and Joubert are useful to keep in mind when discussing the issue and
possible legal consequences of avoidable mentally disordered state. What if Li had
been diagnosed with schizophrenia and had been medicated What if the
medication worked, but for one reason or another he had discontinued it, his
mental illness deteriorated, and then he got on the Greyhound bus It is certainly
not hard to imagine that events might have unfolded in this manner. Such issues
also are raised when his release is discussed – even if Li is appropriately
medicated, would he continue to take his medication and what should happen if
he does not and more violence results What if Joubert had made it to trial
The substance of this paper is divided into six sections. The first discusses the
set-up of the “recklessly-induced mental disorder” scenario in order to provide
framework for an analysis. The second considers the philosophical motivation for
punishing in such situations. The third is a brief survey of the history of the NCR
defence to give context to the discussion. The fourth section is a detailed
explanation of the NCR defence itself, which is necessary for a proper discussion
of if and how a recklessly induced violent episode might lead to criminal
culpability in the event that the disorder precipitates a serious crime. The fifth
section proposes that recklessly exacerbating one’s own mental disorder with the
resulting injury or death of another should be considered criminal negligence.
The sixth section of the paper very briefly discusses the possible forms of
punishment which should accompany the proposed offence. The last section
forms a brief conclusion.
It must be noted that the purpose of this paper is not to suggest a practical
concrete form of sanction, but rather to argue that some sanction is warranted in
the first place. The issue of precise legal punishment carries with it many intricate
considerations which are not discussed in this paper – the proposed solutions
presented in this paper are largely philosophical in nature, as opposed to practical
logistical solutions.
12
“Disease of the mind” is defined in s 2 of the Code. This will be discussed at length in Section V
of this paper.