Download PDF - Robson Hall Faculty of Law

A Tough Pill to Swallow 147
II.
WHAT IS AN “AVOIDABLE MENTALLY DISORDERED STATE” 13
It is trite criminal law that a guilty mind must parallel a guilty action to create
a criminal offence, and one’s mental state is certainly considered when
determining to what extent one should be held responsible for one’s actions. 14
The question this paper will address is whether one who recklessly induces or
exacerbates his own mental disorder by failing to take action to control it, if he is
not disordered (as defined by the NCR defence) when he fails to act, can or
should be held legally responsible for his actions where it subsequently leads to
the commission of a serious crime.
This paper does not discuss the possible culpability of wilfully self-induced
automatism. The courts have made it clear that purposeful or reckless use of drugs
or alcohol creating a disturbed mental state does not constitute a “disease of the
mind” as is requisite for the NCR defence, unless there is evidence of a preexisting
malfunctioning of the mental processes. 15 Importantly, this excludes
several common scenarios of self-induced mental aberration from being
considered in an NCR defence, such as extreme intoxication or paranoid delusion
caused by recreational drug use. As it is clear that the NCR defence would not be
available to an accused in those situations, it is moot to discuss whether there
should be culpability with respect to their decision to become intoxicated in the
first place.
The term “avoidable mentally disordered state” has a specific meaning here.
It is, of course, incorrect to suggest that mental disorders can be willingly created
or conjured from within oneself where one had no mental disorder before.
Likewise, I do not mean to imply that having a mental disorder is something that
can be avoided altogether. The phrase as I use it is meant to denote a situation in
which a person who already has a mental disorder fails to take steps to abate it or
actually acts to exacerbate it, thus the “avoidable” aspect of the term connotes acts
or omissions involved in failing to abate the disordered symptoms of the
condition where abatement of such symptoms was possible. Specifically, for the
balance of this paper, when I speak of “avoidable mentally disordered state”, I am
referring to a situation involving all of the following conditions:
i) The person is afflicted with a mental disorder, the likes of which
would constitute a “disease of the mind”, as defined by the Code.
The person would therefore potentially qualify for the NCR
13
14
15
From this point on in the paper, the male pronoun is used when referring to hypothetical
offenders. The author intends no offense by this choice, but has chosen it for the sake of
simplicity.
Irving Thalberg, “Hart on Strict Liability and Excusing Conditions” (1971) 81:2 Ethics: An
International Journal of Social, Political, and Legal Philosophy 150.
See DPP v Beard [1920] AC 479 (UK HL); R v Godfrey, [1984] 3 WWR 193, 8 DLR (4th) 122 at
para 31 (Man CA).