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162 MANITOBA LAW JOURNAL |VOLUME 35 NUMBER 1
century saw great reliance on the M’Naghten rules, but perhaps only in a technical
sense. Frequently, juries seemed to disregard their instructions as to the
application of the M’Naghten rules and rendered decisions based on their lay
perceptions of the accused’s sanity. 64 So, while the defence of insanity was meant
to be a question strictly concerning the mental state of the accused when he
committed the crime, it often happened that this technical requirement would be
overridden by considerations of whether the accused was insane in general.
In Canada, the Code largely adopted the language of the M’Naghten rules, 65
but in doing so opened the door to another set of problems.
V. THE CURRENT DEFENCE IN CANADA – THE NCR DEFENCE
No longer the “insanity defence”, in Canada, one may be acquitted of a crime
on the basis that he was “not criminally responsible”. The Code sets out the
following provisions for the NCR defence:
16. (1) No person is criminally responsible for an act committed or an omission made
while suffering from a mental disorder that rendered the person incapable of appreciating
the nature and quality of the act or omission or of knowing that it was wrong.
(2) “mental disorder” means a disease of the mind. 66
There are two main requirements which must be met in order to successfully
raise the NCR defence. First, the accused must have been suffering from a disease
of the mind at the time he committed the crime. This requirement is simply to
exclude those prone to bursts of rage, transient intoxication, and those of lesser
intelligence. 67 Regarding the definition of disease of the mind in more recent
Canadian jurisprudence, Dickson J (as he then was) held in R v Cooper that “…in a
legal sense disease of the mind embraces any illness, disorder or abnormal
condition which impairs the human mind and its functioning, excluding
however, self-induced states caused by alcohol or drugs, as well as transitory
mental states such as hysteria or concussion.” 68 Similar sentiment was expressed in
R v Rabey 69 by the minority (who dissented for independent reasons), to the effect
that a disease of the mind may be “curable or incurable, temporary or not,
recurring or non-recurring…”. 70 It is significant that the term “disease of the
mind”, as it is employed in the context of the NCR defence, is a legal term and
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66
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70
Ibid.
Mr. Justice GA Martin, “Mental Disorder and Criminal Responsibility in Canadian Law” in SJ
Hucker et al, eds, Mental Disorder and Criminal Responsibility (Toronto: Butterworth & Co
(Canada) Ltd, 1981) at 15.
Supra note 2, ss 2 and 16.
Martin, supra note 65 at 15.
[1980] 1 SCR 1149 at para 51.
[1980] 2 SCR 513.
Ibid at para 45.