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A Tough Pill to Swallow 153
foreseeability of the consequences can be established in both cases, what morally
relevant difference is there between laying a trap which kills someone two weeks
later, and destabilizing himself so that he loses control and personally kills
someone two weeks later If we punish in one circumstance, should we not
punish in the other, assuming that the foreseeability of harm is present in both
situations
It may be argued that the medicated person with a mental disorder is
vulnerable, even in his stable phase, due to various side effects from medications
or lingering psychological problems associated with his disorder. Due to this
vulnerability, it might further be suggested that the person be held to a lower
standard of care vis-a-vis his medication adherence. This argument should not be
convincing. While the difficulties and vulnerabilities facing the person in
adhering to his medication may have a place as a sentencing consideration, 30 there
is a strong philosophical reason why being in this vulnerable state should not
excuse the person from responsibility for the consequences of voluntarily failing
to adhere to his medication schedule.
The criteria for use of the NCR defence set a certain threshold to meet before
one can make use of the defence. 31 This will be discussed at length in Part V, but
the essential elements of the NCR defence are that, at the time of the commission
of the offence, the accused suffered from a disease of the mind such that he either
did not appreciate the nature or quality of his actions or he did not know that
what he was doing was wrong.
As per my assumptions above, a person in the stable phase of treatment
would not meet this threshold. To excuse this person from any illegal or reckless
conduct at this stage on the grounds that he is mentally disturbed would serve to
dilute the NCR defence. Further, it will increase the public perception that having
psychological difficulties falling far short of legal or medical “insanity” will
nonetheless serve to exonerate the mentally disordered, and this perception would
be damaging to the integrity of the legal system.
By analogy, we might be sympathetic for a person suffering from pyromania
or kleptomania who, as a result of his mental disorder, is prone to setting fires or
shoplifting; however, such mental disorders (falling short of the NCR threshold)
should function at most as sentencing considerations and not as complete
defences to arson and theft, as the mens rea for the offence (of setting the fire or
stealing) is still present. Such an individual might instead receive a lenient
sentence on the grounds that he was less culpable even though they “knew what
[they were] doing … and knew it was wrong” 32 or that the pre-dispositional nature
of the mental disorder lessens the need for tough deterrent measures. 33 Likewise,
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32
33
R v L (JHQ) (1995) 61 BCAC 150 at paras 9-10.
Criminal Code, supra note 2 at s 16.
R v Medwid [1990] 89 Sask R 158 at para 6 (CA).
Ibid at para 8.