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178 MANITOBA LAW JOURNAL |VOLUME 35 NUMBER 1
that, as a matter of logic, the punishment for criminal negligence in this case
should not be severe. It would make little sense to allow the person to (rightly)
plead the NCR defence in respect of a murder he had committed while in the
throes of his disorder and thus allow him to avoid penal sanctions for the murder,
only to turn around and charge him with criminal negligence for failing to take
his medication and subsequently punish him just as we would have for the
murder had he not been NCR. What, then, are the alternatives
To be sure, critics of the justice system, who find little utility in incarcerating
offenders generally, will likely not find any utility in incarcerating someone who
intentionally exacerbated his own mental disorder and who is now in a mental
health institution. Indeed, not only would incarceration in a prison be unhelpful
for the continued rehabilitation of the person, but it would in all likelihood be
counterproductive to that goal. On the other hand, do we not think it proper to
punish a drunk driver who caused the death of a pedestrian in a crash, even if, as
a result of the accident, the drunk driver himself was rendered a paraplegic There
would be little danger of the paraplegic ever driving drunk again, and so there is
no public safety value in punishing him. Provided that the drunk driver was
remorseful, any prison time would be purely retributivist and serve only to
denounce the conduct and make the public feel that justice was served. In spite of
his misfortune, I think it is still proper to hold him accountable for his crime,
albeit that we might be more lenient in sentencing. Likewise, acknowledging the
crime of pre-NCR actions of a now-NCR individual should be warranted, with
leniency in sentencing if appropriate.
I stress again that the ambit of this paper is to argue that there are good legal
and philosophical reasons to punish reckless non-adherence to anti-psychotic
medication. That is, I have argued that something should be done. What I have
not considered is what exactly should be done, as answering that question would
require extensive investigation into the logistics and arguments over how to
conduct trials and sentencing. Several possibilities exist in terms of punishment
options which ought to be investigated. As a starting point, community service or
a conditional sentence would seem to be appropriate possibilities which both
recognize the culpability of the offender with respect to his pre-NCR conduct, yet
are not so onerous or restrictive of liberty so as to undermine the intended and
proper exculpatory effects of the NCR defence with respect to the accused’s NCR
conduct. Rather than simply forgetting about the culpability of recklessly or
intentionally discontinuing medication, the wrongful conduct of the offender is
recognized and the punishment is tailored to suit the level of culpability.
Someone who failed to inhibit a psychotic episode because he discontinued
medication that made him feel unpleasantly lethargic should be convicted of
criminal negligence if he thereby seriously injured or killed someone; however,
124
Ibid s 718.2(e).