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154 MANITOBA LAW JOURNAL |VOLUME 35 NUMBER 1
it makes sense to consider leniency of sentence, but not an absence of sentence or
recognition of wrong-doing altogether, when it comes to non- adherence of
mentally disordered individuals who do not meet the NCR threshold. In both
cases, individuals are compelled but not controlled by their mental illness; thus
they have the ability to form the mens rea of a crime. As long as they can do this,
any other mental stressors or compulsions should, at most, function to reduce the
culpability of the crime in question, but not deny that it took place at all. To hold
otherwise would be to usurp the very meaning of “mens rea”.
In addition, it would be doing a long term disservice to mentally ill people
generally if we fail to hold them accountable for their conduct in their stable
phase. As noted above, they face a great stigma 34 which would only be worsened if
they were perceived to be so psychologically weak, even in their stable phase, that
they need special consideration before being held accountable. It would be as if to
say “I am stable, reliable, and I know the difference between right and wrong, but
if I commit any crimes then it is not my fault and it can be blamed entirely on my
disorder.” This contradiction can only breed misconception and worsen the
stigma which the mentally disordered person already faces.
Although taking this view may be seen as a failure to recognize the
vulnerability of the medicated person, I see it as quite the contrary. It is
recognition of the fact that people on medication for their mental illness are not
habitually unreliable or weak-minded and should therefore be held roughly as
accountable just as anyone else would be, while they are in their stable state.
While it is the state’s prerogative to create criminal offences, a reasoned
philosophical justification for a new law, in addition to its pragmatic functions,
adds moral legitimacy to it; therefore, something should be said about the moral
justification for creating an offence which would punish those who recklessly
exacerbate their own mental disorder.
B. Punishment Theories: A Way to Justify Punishing
While there is incredible complexity and argument in the sphere of moral
philosophy regarding punishment, two of the most significant schools of thought
are the utilitarian theories and the retributivist theories. Both theories raise
convincing points and may suggest certain plausible policies, but both also lead to
absurd conclusions when taken to their logical extremes, perhaps suggesting that
another theory should be considered. 35
Utilitarian theories require and/or condone punishment only where it serves
the social good. 36 This would include punishments which have deterrent or
34
35
36
Dombeck, supra note 28.
Michael David, “Punishment Theory’s Golden Half Century: A Survey of Developments from
(about) 1957 to 2007” (2009) 13: 1 J Ethics 73.
Ibid at 78.