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168 MANITOBA LAW JOURNAL |VOLUME 35 NUMBER 1
McLachlin J (as she then was) for four of nine justices in Creighton held that
“considerations of principle and policy dictate the maintenance of a single,
uniform legal standard of care…subject to one exception: incapacity to appreciate
the nature of the risk which the activity in question entails.” 93
As I have posited earlier, assuming that the person with a mental disorder is
lucid while medicated and below the NCR threshold, then they necessarily have
legal capacity to appreciate the risks of non-medication adherence; therefore they
are subject to the same objective standard as anyone else would be. Failing to take
anti-psychotic medication which might cause a violent break down would clearly
run counter to the conduct of the reasonable person.
On the other hand, Lamer, CJ (as he then was), for another four of nine
justices in the same case, held that “the reasonable person will be invested with
any enhanced foresight the accused may have enjoyed by virtue of his or her
membership in a group with special experience or knowledge related to the
conduct giving rise to the offence.” 94
Although this technical distinction from McLachlin J’s judgment is generally
significant, I do not think it is of critical import to the instance of medication
adherence. Where one has a mental disorder and has been both medicated and
informed of the consequences of failing to adhere to the medication, then such a
person indeed possesses such special foresight and knowledge, raising his standard
of care. Thus, even on the account of a reasonable person set out by Lamer CJ,
the standard of care is still fairly high, albeit perhaps not quite as high as the pure
objective standard advocated by McLachlin J. Lamer CJ made special reference to
“frailties” while enunciating the “checklist” for criminal negligence. Such frailties
would reasonably include those caused or instanced by mental disorders; however,
such frailties are not necessarily exculpatory, as:
A key element of the objective test is that of the control an accused could have exercised
over the frailty which rendered him or her incapable of acting as the reasonable person
would in the same circumstances. The notion of control is related to that of moral
responsibility; if one is able to act prudently and not endanger the life of others, one will be
held liable for failing to do so. One must be morally – and criminally – responsible to act
according to his or her capacities not to inflict harm, even unintentional harm. 95
It was further held that the frailties or traits which might serve as contextual
considerations must be things which “the accused could not control or otherwise
manage in the circumstances.” 96 From this, it is clear that one who fails to take his
anti-psychotic medication has failed to act prudentially in a manner which would
have otherwise mitigated his own frailties. While it is true that the side effects
from the medication may have induced yet more frailties, they could not be said
93
94
95
96
Ibid at paras 119-120.
Ibid at para 37.
Ibid at para 39.
Ibid at para 44.