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158 MANITOBA LAW JOURNAL |VOLUME 35 NUMBER 1
least to some extent by punishing reckless exacerbation of mental disorder, it
seems clear that the aspects of denunciation and the acknowledgment of
responsibility would be the substantial motivation behind the punishment.
Between the possible justification found in utilitarian, retributivist, and
fairness theories of punishment, as well as the provisions found in the Code, it
seems clear that punishing reckless exacerbation of mental disorder can, in
principle, be justified.
IV. A HISTORY OF THE NCR DEFENCE IN SEVERAL OF ITS
ITERATIONS
A glimpse at the common law history of treatment of mentally disordered
people shows a pattern of disdain and comparison to children and animals.
Despite the base nature of such comparisons, it is clear that in some cases it would
be as senseless to hold a mentally disordered person morally blameworthy for
their crime as it would be to hold an animal or child blameworthy of the same
offence. From its early conceptions as a disqualification of ability to transact or
control one’s self, to its more modern function of denying mens rea, the law on
crime and mental incapacity has had a colourful history. It is clear today that the
wording of section 16 of the Code establishes the NCR defence as an “excuse-type”
defence which denies the requisite mens rea of the offence, thus precluding a
finding of guilt; however, a brief historical analysis of what we now know as the
NCR defence is warranted in order to give context to the proposed sanctioning of
conduct which both precedes and precipitates the NCR defence itself.
A. Medieval Times
Hints of a requirement of a mental element in a criminal offence have
persisted though out ancient legal history; 46 however, one of the earliest and most
significant movements in English jurisprudence toward a more uniform
recognition of the requirement of both a mens rea and an actus reus to constitute a
crime came in the 13 th century. Henry de Bracton, an eminent jurist of the time,
46
For instance, in ancient Rome, the law held that the insane were legally incompetent and
therefore were designated as wards of their guardians or curators. See Adolf Berger, Encyclopedic
Dictionary of Roman Law (Philadelphia: American Philosophical Society, 1953) at 420. In ancient
Hebrew law, deaf-mutes, minors, slaves, married women, and “idiots” (the mentally disordered)
were considered “awkward” to deal with, and therefore if they were to injure others then they
were to be exempt from the punishment which would normally follow such a crime. Babylonian
Talmud, Bava Kama, 87a. This has consistently been interpreted to mean that someone who is
non compos mentis (not of sound mind) is not legally competent – see Rabbi Simcha Roth,
“Mishnah study in the religious climate of Masorti (Conservative) Judaism” Beit Midrash Virtual
of the Rabbinical Assembly in Israel (4 November 2010), online:
.