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A Tough Pill to Swallow 169
to be overpowering, assuming that they did not push the person into the NCR
threshold at that time.
Given the relatively high standards of care and conduct set out by both
judgments in Creighton pertaining to culpable negligence, I would entertain either
standard in the analysis as to whether or not the person who discontinued his
anti-psychotic medication was criminally negligent. Whether one subscribes to
Lamer CJ’s “modified objective” standard or McLachlin J’s “pure objective”
standard, both would equally condemn the reckless discontinuation of the
medication. Non-adherence to anti-psychotic medication would clearly violate the
pure objective standard of conduct and would also, in the right circumstances,
violate the modified objective standard. This is because the reasonable person in
that case would be vested with the special knowledge of his disorder and
medication, which would serve to counter any frailties which might have
otherwise served to lower his standard of care.
Having disposed of the mens rea component of criminal negligence, one must
define the actus reus component. In Creighton, the Court held that in order to
constitute culpable negligence the act itself must have represented a “marked
departure from the standards of the reasonable person in all the circumstances of
the case.” 97 Recalling the analogy I drew involving the Gingrich case and failing to
ensure that one’s brakes are in working order, I think it is plain to see that if, in
that case, driving with faulty brakes represents a marked departure from the
conduct of the reasonable person, then so too should operating without one’s
anti-psychotic medication. Quite simply, where the risk is great and includes a
possibility of significant harm, and where the person knows this and has been
given a method by which to greatly reduce or eliminate the chance of such an
eventuality occurring, then indeed it is a marked departure from the standard of
the reasonable person to disregard such preventative measures. This holds true
even where the reasonable person is a “reasonable medicated person suffering
from schizophrenia”, for the same reasons given in the discussion on mens rea.
In summary, there is good reason to believe that recklessly discontinuing antipsychotic
medication would satisfy the mens rea and actus reus requirements of the
offence of criminal negligence. As in all negligence, foreseeability is the pivotal
matter, and regardless of which technical standard of care the accused is judged
by, it seems clear that where the possibility of harm to others is foreseen and
disregarded, then criminal negligence may have occurred.
It may be argued that those with mental disorders who are successfully
medicated (and who otherwise might be prone to violence or psychotic episodes)
would not be likely to foresee themselves, now stable, ever becoming violent, and
so the foreseeability of violent consequences through the discontinuation of
medication is lacking. Indeed, the evidence is that most people who are psychotic
97
Ibid at para 144. See also para 37.