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A Tough Pill to Swallow 165
Despite the complex and evolving jurisprudence on the matter, the second
branch of the NCR defence can be aptly summarized as “…available if an accused
proves on the balance of probabilities that he suffer[ed] from a disease of the
mind that render[ed] him incapable of knowing that his act was legally or morally
wrong.” 83
VI.
RECKLESS EXACERBATION OF MENTAL DISORDER CAUSING
HARM OR DEATH IS CRIMINAL NEGLIGENCE
Having reviewed this history and current interpretation of the NCR defence,
and considering the scenario posed at the beginning of this paper involving
someone who recklessly discontinues their anti-psychotic medication, two main
points emerge. First, just as in the Weldon case, 84 it seems to be of little import to
the NCR defence itself whether or not the mentally disturbed person was reckless
with regard to taking his medication. While adherence to medication may be a
factor influencing the release of a mentally disordered patient already held
involuntarily after pleading the NCR defence, 85 there is no statutory nor common
law provision which allows it to be considered by a court assessing the validity of
the NCR defence. The second point emerging from the history of insanity
defences as well as the surveyed moral philosophy is that people should be held
accountable for their actions made while they were of sound mind or otherwise
capable of forming a mens rea.
I believe these two points can be reconciled, and this reconciliation forms the
proposal of this paper. While it is surely not the case that neglecting to take one’s
medications should carry with it the same criminal culpability and punishment as
a murder, the fact that the former lead to the latter and the accused was able to
foresee this suggests that there should be some culpability and punishment
attached to the former act or omission.
Where the person who is medicated is of sound mind (outside the NCR
threshold) at the time he recklessly discontinues his medication regimen and as a
result has a psychological episode in which he hurts or kills someone, we should
frame the omission to take the medication as criminal negligence causing death or
bodily harm. As it is only the omission itself which is criminalized, the accused
may still rely on the NCR defence in respect of the injury or death which he
caused in his disordered state. Of course, the punishment would have to fit the
crime and should involve consideration of the accused’s precarious (albeit not
NCR) mental state at the time the reckless disengagement from treatment
83
84
85
R v Worth (1995), 40 CR (4th) 123 (Ont CA) at para 10.
Supra note 25.
Criminal Code, supra note 2, s 672.81(1.2).