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Canadian Insanity Defence Reform : Capturing a New Spirit of Mcnaughtan

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Canadian Insanity Defence Reform : Capturing a New Spirit of Mcnaughtan CANADIAN INSANITY DEFENCE REFORM: CAJX"I'R1NGA NEW SPIRIT OF MCNAUGHTAN. Cheryl S. Angelomatis B.A., Simon Fraser University, 1981 THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF ARTS (CRIMINOLOGY) in the Department of Criminology 0 Cheryl S. Angelomatis 1983 Ib SIMON FRASER UNIVERSITY October, 1983 All rights reserved. This work may not be reproduced in whole or in part, by photocopy or other means, without permission of the author. APPROVAL Name: Cheryl S. Angelomatis Degree: MASTER OF ARTS (CRIMINOLOGY) Title of thesis: CANADIAN INSANITY DEFENCE REFORM: CAPTURING A NEW SPIRIT OF McNAUGHTAN. Examining Committee: -. ,/John W. Ekstedt Chairperson, Associate ~rdfesbor,Crkinology Simon N. vep- ones Senior Supe isor, Associate Professor, Criminology - Ib - - - Duncan Chappell, Progessor, CripinoTogy ~ki-1Boyd I Associate ~rofe!&sor,Criminology - - Yudi th Osborne, External Examiner, Instructor, Criminology Date Approved: November 21, 1983 PARTIAL COPYRIGHT LICENSE I hereby grant to Simon Fraser University the right to lend my thesis, project or extended essay (the title of which is shown below) to users of the Simon Fraser University L ibrary, and to make partial or single copies only for such users or in response to a request from the library of any other university, or othar educational institution, on its own behalf or for one of its users. I further agree that permission for multiple copying of this work for scholarly purposes may be granted by me or the Dean of Graduate Studies. It is understood that copy i ng or publication of this work for financ ial gain shall no-i be a I lowed without my written permission. CANADIAN INSANITY DEFENCE REFORM: CAPTURING- A --- NEW SPIRIT OF MCNAUGHTAN Author: ABSTRACT The insanity defence, recognized in England as early as the 13th Century, has become well-established in the Canadian and American legal systems through the common law rules formulated in McNaughtanls Case (1843). This thesis examines the insanity defence as a legal doctrine of criminal responsibility. This intractable doctrine is examined in a legal, medical, social, and political context. The primary objective of this thesis is to propose a Canadian reform approach, which would allow the insanity defence to function as a more socially useful doctrine of criminal responsibility. It is argued that a reform approach is necessary for the implementation of more rational, progressive, and humane policies toward the mentally ill offender. This thesis begins with an historical analysis of legal doctrines of criminal responsibility, tracing its evolution from ancient systems of law to English common law. The Canadian insanity defence is articulated in S.16 of the Canadian Criminal Code. This thesis analyzes the judicial interpretations and modifications of all the essential elements of S.16. As well, the evidential aspects and the dispositional criteria of the insanity defence are examined. A discussion of the inter-related doctrines of Automatism, Irresistible Impulse, and Diminished Responsibility is also included. It is argued that the interface of law and psychiatry is a major source of contention in insanity defence trials. The , iii traditional conflicts between the two professions and the role of the psychiatrist as an expert witness in insanity defence trials are critically examined. There have been numerous contemporary reform'alternatives advanced by British and American jurisdictions, ranging from modification of the traditional McNauqhtan test to total abolition of the insanity test. The theoretical and practical differences between the various reforms are analyzed. Finally, this thesis argues for a specific Canadian reform approach which includes: 1. a broadened substantive test; 2. the recognition of "mental disorder negating --mens rea as an affirmative defence; 3. a codified concept of diminished responsibility; and 4. improved dispositional criteria. ACKNOWLEDGEMENTS I wish to express my deepest gratitude to my mentor and Senior Supervisor, Dr. Simon N. Verdun-Jones, who directed me in the research and writing of this thesis. His invaluable assistance and kind support throughout my years of studies at Simon Fraser University, and his unique scholarship will always be remembered. I wish especially to thank my thesis committee member, Dr. Duncan Chappell, for his interest in my research, and for his supervision in my graduate coursework. In addition, I extend appreciation to Dr. Neil Boyd, for serving as a member of my thesis committee; Dr. John Ekstedt, for chairing my thesis defence; and Professor Judith Osborne, for undertaking the role of-external examiner. I also wish to acknowledge Professor Gerry Ferguson, of the. University of Victoria Law School, for providing me with his scholarly "Report on the Insanity Defence"; and to the Department of Justice, in Ottawa, for release of that Report. Last, but not least, I am greatly indebted to Aileen Sams, who took on the laborious task of preparing the manuscript in thesis format. I also thank her for all the assistance she has given me throughout my graduate program. DEDICATION This thesis is dedicated to the loving memory of my brother, Ben. and To my husband, George, TABLE OF CONTENTS I Approval ....................,................................ii Abstract .....................................,...............iii Acknowledgements ............................................ v Dedication ....................,..................,...........vi I. Introduction 11. Historical Development of Insanity Jurisprudence .... McNaughtan ...........................................15 111. The Substantive Law-Canadian Judicial Interpretation of S.16 and Related Issues ............30 / The Term "Natural Imbecility" ........................ 30 v'- t" The Term "Disease of the Mind" ........................d2 . The Phrase "Appreciating the Nature and Quality of an Act or Omission" .............................,.35; / The Phrase "Knowing that an Act or Omission is Wrong" ...........................................41 Delusions - S.16(3) ..................................44 Automatism ...........................................46 Irresistible Impulce .................................50 Diminished Responsibility ............................52 Evidence, Burden of Proof and Onus ...................56 J Disposition ........................................e.59 IV. The Role of psychiatrists in Insanity Defence J Trials: A Major Source of Contention .................63 /' Rules of Evidence ....................................72 I' / Reliability of Psychiatric Assessments ...............83 f' Reforms ..............................................89 V. Reform Alternatives ...................................93 Critique of McNaughtan - Impetus for Reform ........e4,- /i3 ,/) Abolition of the Insanity Defence ...................Aj,)i._ Irresistible Impulse Test ......................h,. -114 Justly Responsible Test .................,...........llg Durham Rule or Product Test .......................629 1,' 1,' -\ American Law Institute Test (ALI) ................. .1'126 ) \--/ Diminshed Responsibility - Diminished Capacity ......135 Butler Test ..........................................I48 Guilty but Mentally I11 .............................I52 Bifurcated Trials ...................................159 Retention ...........................................I60 VI. A Canadian Reform Approach ..........................164 A New Substantive Test ..............................165 Mental Disorder (Short of Insanity) Negating Mens / I Rea .............................................I70 i +". Diminished Responsibility ..,........................173 Disposition .........................................I76 f"' Conclusion ..........................................I . Appendix ....................................................183 Test Used to Determine Criminal Responsibility ......183 Bibliography ................................................184 I. Introduction Few areas of the criminal law have proved as intractable or generated as much controversy as the insanity defence. I The insanity defence is premised on the time-honoured 1 concept that one who commits a criminal act while insane should I not be held responsible for his act. This notion of criminal I responsibility stems from the ancient view that such an individual has neither the criminal intent, nor free will, at d ; .@ '! the time the act was committed and, therefore, cannot be !. punished. The defence of insanity, recognized in England as \ early as the 13th Century, has become well-established in the I Canadian and American legal-systems through the common law rules i i of McNaughtan's Case (1843). j-- '1 Contrary to public belief, studies have shown that the : B insanity defence is invoked with relative infrequency (Pasewark, " i Pantle, & Steadman, 1979; Steadman, 1980; Pasewark, 1981). The I1 \ data from some studies underscore the discrepancy between the 3 lavish attention devoted to the insanity defence (by the media and legal commentators) and the infrequency of its successful invocation (Pasewark, Pantle, & Steadman, 1979). / The cause celebre of John Hinckley, Jr.,l, in the United ------------------ I John Hinckley, Jr. was found "not guilty by reason of insanity" on June 21, 1982 for his assassination attempt on president, Ronald Reagan, his shooting of the President's Press Secretary, a Secret Service Agent, and a police officer on March 30, 1981. States, touched off a nationwide furore
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