Key words: criminal law, bibliography on the defence of diminished capacity, cumulative effect on intent, diminished responsibility, doctrine of diminished responsibility, lessened rersponsibility, limited responsibility, partial excuse, partial responsibility, rolled-up jury instruction or charge // bibliographie sur l'atténuation de responsabilité en droit pénal, directive au jury relative à la combinaison des moyens de défense, imputabilité diminuée, les demi-responsables, responsabilité atténuée, responsabilité dimininuée, responsabilité limitée, responsabilité partielle, responsabilité réduite
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by/par ©François Lareau, 2003, Ottawa, Canada
First posted on the internet on: 6 September 2003
Selected Bibliography on
Diminished Responsibility / Capacity
Bibliographie choisie sur
la responsabilité atténuée en droit pénal
See also: Diminished Responsibility or Capacity / Responsabilité atténuée
• Comparative Law / Droit comparé
Part I - Canadian Law
"We look on the adoption of the theory of diminished responsibility as a means of ensuring that persons of border-line types should be less severely punished than sane persons." (Canada, Royal Commission on the Law of Insanity as a Defence in Criminal Cases, infra, p. 66)
BANKS, D., The Effects of Mental Impairment on Sentencing, B.A. (Honours) thesis, Queen's University, 1988; thesis not consulted; cited at http://www.csc-scc.gc.ca/text/pblct/forum/e02/e021g_e.shtml (accessed on 6 September 2003);
BENNETT, Elizabeth, "Diminished responsibility" in National Criminal Law Program: Substantive Criminal Law (1996: Winnipeg), [ed.], National Criminal Law Program, The Federation of Law Societies of Canada, Winnipeg (Manitoba) : Federation of Law Societies, 1996, 2 volumes, in vol. 2, section 15.3, 15 p.; copy at the Library of the Supreme Court of Canada, KF 9220 ZA2 N38 1996 v. 2 c. 01;
BOURQUE, Sophie, "Les moyens de défense" dans Claude Leblond, responsable du secteur Droit pénal, École du Barreau du Québec, Droit pénal (Infractions, moyens de défense et sentence), Cowansville (Québec): Les Éditions Yvon Blais, une société Thomson, 2003, 278 p., voir "La responsabilité atténuée", à la p. 182 et "La combinaison des moyens de défense", aux pp. 182-183 (Collection; Collection de droit 2002-2003; volume 11), ISBN: 2894515863; copie à la Bibliothèque de la Cour suprême du Canada, KF385 ZB5 C681 v. 11 2002-03 c. 01; importante contribution;
"La responsabilité diminuée
La défense de responsabilité diminuée repose sur la possibilité qu'il existe un doute raisonnable que l'accusée ait pu former l'intention requise, compte tenu de la présence de certains éléments tels des troubles mentaux, de l'intoxication, de la provocation ou un autre élément pouvant affecter son état d'esprit. Peut-on réduire le meurtre à l'homicide involontaire si le juge des faits en arrive à la conclusion que l'accusée ne souffrait pas de troubles mentaux, au sens de l'art 16 C.cr., mais que l'existence de ceux-ci crée par ailleurs un doute raisonnable sur son intention de tuer la victime? C'est surtout dans ce cadre que cette défense s'est élaborée dans les régimes de common law. [...]" (p. 182)
"La combinaison des moyens de défense
Une évolution jurisprudentielle récente s'apparente quant à ses conséquences, à la défense de responsabilité diminuée. Il s'agit des directives relatives à la combinaison des moyens.
L'effet cumulatif se produit lorsque l'accusé présente plusieurs défenses connexes telles la provocation, la légitime défense, l'intoxication, mais qu'aucune d'elles n'est suffisante pour soulever un doute raisonnable quant à son intention. Peut-on considérer l'effet cumulatif des faits présentés au soutien de ces défenses dans l'évaluation de l'intention qui habitait l'accusé au moment de la perpétration de l'infraction? Ces 'presques' défenses peuvent-elles lui permettre de soulever un doute raisonnable quant à son intention de commettre l'infraction et peut-on instruire le jury en ce sens? [...] Le juge en chef Lamer a finalement tranché le débat dans l'arrêt R. c. Robinson, [en 1996] en adoptant la position ontarienne [du oui]. Il a pris bien soin de souligner que l'important était de déterminer l'intention de fait de l'accusé, c'est-à-dire celle qui l'animait réellement [...]." (pp. 182-183; une note omise)
CANADA, Department of Justice (Criminal Law Review), Gilbert Sharpe and Judi Richter, Mental Disorder Project, Criminal Law Draft Report, [Ottawa: Department of Justice, Criminal Law Review], May 1984, iv, 95 p., see "Diminished Responsibility" at pp. 28-29; also published in French/aussi publié en français: Ministère de la Justice Canada, Gilbert Sharpe et Judi Richter, Projet sur le désordre mental, Revision du droit pénal - Projet de Rapport, [Ottawa: Ministère de la Justice Canada, Tévision du droit pénal], mai 1984, iii, 110 p., voir "La responsabilité atténuée aux pp. 31-32";
"Diminished Responsibility
There was a very general discussion during our consultations on the issue of diminished responsibility. There was some support for having this principle articulated in the Code.
It was proposed that if a dimished responsibility test were codified, it could supplement the insanity test as follows:
(1) Everyone is partially excused from criminal responsibility for his conduct if it is proved that as a result of mental disorder (defined as a disease or disability of the mind), he lacked substantial capacity to appreciate the nature, consequences or wrongfulness of such conduct.
(2) Everyone partially excused under subsection (1) of this section shall be convicted of the offence in a diminished degree [or in the second degree] and shall be subject to the same range of punishments as is applicable in respect of persons who are convicted of an attempt to commit the offence.
The proposal would result in a reduction in the level or degree of offence. This form of diminished responsibility does not exist in the United States and only exists in England with regard to murder (reduced to manslaughter) and in Canada with regard to murder (reduced to infanticide pursuant to s. 216 of the Criminal Code, or to manslaughter by reason of provocation pursuant to s. 215). It has been suggested that a combination of the options available in England of diminished responsibility and hospital orders has resulted in the insanity defence being raised in relatively few cases in recent years.
Some of those who indicated support for this concept suggested that it should only apply to major offences as is the case in Great Britain. Others queried how diminished responsibility might operate in relation to the matter of mens rea.
There was some concern that because the British system (and society) is so different from ours, there would be great danger in adopting their diminished responsibility concept as is. In addition, although the Code makes some provision as noted above, the concept has not been generally formalized in this jurisdiction and may therefore create considerable problems should it be adopted without further study and consultation.
The majority with whom we consulted who commented on this matter were of the opinion that much more work is required in terms of both research and consultation before the concept of 'diminished responsibility' can be formalized as part of the Criminal Code.
24. IT IS RECOMMENDED THAT ALTHOUGH ULTIMATE ADOPTION OF THE CONCEPT IS A WORTHWHILE GOAL, ADITIONAL RESEARCH AND CONSULTATION SHOULD BE CONDUCTED PRIOR TO FORMALLY ADOPTING BROAD-BASED DIMINISHED RESPONSIBILITY PROVISIONS FOR THE CRIMINAL CODE. (pp. 28-29)
CANADA, Department of Justice (Criminal Law Review) and Gilbert Sharpe, Mental Disorder Project, Criminal Law Review, Final Report, [Ottawa: Department of Justice Canada], September 1985, iv, 106 p., see "Diminished Responsibility" at pp. 29-30; note that the "Summary of Recommendations", pp. 71-80 are reproduced in Gilbert Sharpe, The Law & Medicine in Canada, 2nd ed., Toronto and Vancouver: Butterworths, 1987, xxxiii, 642 p. at Appendix K, pp. 617-622, ISBN: 0409865907; available at my Digital Library, at http://www.lareau-law.ca/DigitalLibrary.html; also published in French/aussi publié en français: CANADA, Ministère de la Justice Canada (Revision du droit pénal) et Gilbert Sharpe, Le désordre mental - Rapport final, [Ottawa: Ministère de Justice Canada], Septembre 1985, iv, 117 p., voir "La responsabilité atténuée" aux pp. 32-33; disponible à ma bibliothèque digitale, à http://www.lareau-law.ca/DigitalLibrary.html;
It was proposed that if the dimished responsibility test were codified, it could supplement the insanity test as follows:
CANADA, Officials of the Department of Justice Canada and Members of the Law Reform Commission of Canada, Toward a New General Part for the Criminal Code of Canada: A Framework Document on the Proposed New General Part of the Criminal Code for the Consideration of the House of Commons Standing Committee on Justice and the Solicitor General, [Ottawa]: [Department of Justice Canada], [1990], 137 p., see "Diminished Responsibility" at pp. 103-104; available at my Digital Library, at http://www.lareau-law.ca/DigitalLibrary.html; also published in French/aussi publié en français: Fonctionnaires du Ministère de la Justice Canada et des membres de la Commission de réforme du droit du Canada, Pour une nouvelle codification de la Partie générale du Code criminel du Canada : document cadre sur la nouvelle partie générale proposée du Code criminel présenté pour examen au comité permanent de la justice et du solliciteur général, [Ottawa]: [Ministère de la Justice], [1990], 144 p., voir "Responsabilité réduite" aux pp. 106-108; disponible à ma bibliothèque digitale, http://www.lareau-law.ca/DigitalLibrary.html;
THE PRINCIPLE
An individual whose mental condition impairs his or her moral responsibility should not be held fully liable for such wrongdoing perpretrated while in that condition.
THE RATIONALE
A person whose ability to conform to the law's requirements is impaired by mental disorder cannot be fully blamed for lack of such conformity even though his or her impairment falls short of complete legal insanity.
THE PRESENT LAW
The Criminal Code has no provision on diminished responsibility short of insanity under s. 16. Case law, however, reveals a conflict on the matter. One side considers that whether an accused has the requisite intent depends on all the circumstances including that of mental disorder. The other considers that to allow a defence of diminished responsibility would circumvent s. 16, which makes it clear that the onus of proof of insanity rests on the accused.
There is a second and related conflict. Some take the view that if culpability may be begatived by mental disorder of a lesser degree than legal insanity, the defence of diminished responsibility should apply to all crimes requiring a mental element. Others reject this theory and hold that diminished responsibility should only apply to murder.
CANADIAN RECOMMENDATIONS
Neither the Law Reform Commission [of Canada] nor the Working Group on the General Part [reviewing the General Part of the Law Reform Commission's report number 30] made a recommendation regarding diminished responsability.
Alternatives should be considered. One would be to retain the status quo as set out in the common law. The advantage of this would be to allow for flexibility of application and the possibility of diminished responsibility applying to offences other than murder. The disadvantage is that it would leave the law in its current uncertainty.
A second alternative would be to include a provision which contemplates the possibility of diminished responsibility negativing intent for offences other than murder. The adavantage of this would be that such a provision would increase certainty since it explicitly recognizes the relevance of mental disorder not constituting legal insanity. The disadvantage may be redundancy in light of the basic requirement of an accused's culpability in the commission of any prohibited act.
The Federal-Provincial Working Group on Homicide recommended that any mental disability falling short of exculpatory mental disorder be relevant only with regard to sentencing.
The New Zealand Crimes Bill has no provision concerning diminished responsibility.
The English Law Commission's Draft Code (s. 56) provides that a person who, but for this section, would be guilty of murder is not guilty of murder if, at the time of the act, he or she is suffering from such mental abnormality as is a substantial enough reason to reduce the offence of manslaughter. This section does not apply, however, if the mental abnormality is a result of intoxication.
The American Law Institute's Model Penal Code § 210.3(1)(b) in its definition of manslaughter provides that a homicide which would otherwise be murder is manslaughter when committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse. The reasonableness of such explanation or excuse shall be determined from the viewpoint of a person in the actor's situation under the circumstances as he or she believes them to be.
ISSUES FOR CONSIDERATION
1. Should a provision be placed in the General Part as found in the English Draft Code of a partial excuse of diminished responsibility for murder based on mental disorder which would amount to insanity?
2. Should there be a provision in the General Part on diminished responsibility applicable to all crimes?" (pp. 103-104)
CANADA, Parliament, The Joint Committee of the Senate and House of Commons on Capital and Corporal Punishment and Lotteries, Reports of the Joint Committee of the Senate and House of Commons on Capital Punishment, June 27, 1956, Corporal Punishment, July 11, 1956, Lotteries, July 31, 1956, Ottawa: Queen's Printer and Controller of Stationery, 1956, [ii], 86 p., issued with French text inverted; also published in French / aussi publié en français: CANADA, Parlement, Comité mixte du Sénat et de la Chambre des Communes sur la peine capitale, les punitions corporelles et les loteries, Rapports du Comité mixte du Sénat et de la Chambre des Communes, La peine capitale, 27 juin 1956, les punitions corporelles, 11 juillet 1956, les loteries, 31 juilletr 1956, Ottawa: Imprimeur de la Reine et contrôleur de la papeterie, 1956, [ii], 88 p.;
"The Royal Prerogative of Mercy ...
The only safe and fair generalization that can be made is that commutation occurs in all cases where extenuating circumstances of a substantial nature exist or the degree of moral culpability is not sufficiet to warrant the supreme penalty. ...
In general, it seemed that the same grounds are urged in requests for commutation as are urged as defences at trial. The executive, however, is not bound by the same strict rules as a court and jury in giving effect to them. ...
Mental abnormality falling short of the legal defence of insanity is a frequent factor in commutation, and to a lesser extent drunkenness falling short of the legal defence. There is some relunctance to override a jury's finding on a specific defence such as provocation. Howvere, provocation carries more weight if it is coupled with factors like youth, instability, intoxication, or if the provocation itself has persisted over a long period. Mercy killings and genuine suicide pacts generally result in commutation." (pp. 4-5)
"Prérogative royale de clémence [...]
La seule généralisation possible, prudente et juste, est qu'il y a commutation de peine dans tous les cas où des circonstances atténuantes d'un caractère important existent ou dans les cas où le degré de culpabilité morale ne suffit pas à justifier la peine capitale. [...]
De façon générale, on fait valoir dans les requêtes de commutation de peine les mêmes motifs que ceux que l'on invoque dans la présentation de la défense lors du procès. Le conseil des ministres, cependant, n'est pas lié par les mêmes règles strictes qu'une cour et un jury dans l'évaluation de ces motifs. [...]
Un désiquilibre mental ne réalisant pas entièrement la défense d'aliénation mentale est un facteur fréquent de commutation, et, dans une moindre mesure, l'ivresse n'atteignant pas à la défense admise par la loi. On hésite à casser l'arrêt rendu par un jury sur un moyen de défense particulier comme la provocation. Cependant, la provocation a plus de poids si elle est jointe à des facteurs tels que le jeune âge, le désiquilibre, l'ivresse ou si la provocation même a duré longtemps. L'euthanasie et les authentiques pactes de suicide finissent généralement par une commutation." (pp. 4-5)
CANADA, Royal Commission on the Law of Insanity as a Defence in Criminal Cases, Report of the Royal Commission on the Law of Insanity as a Defence in Criminal Cases, Hull: Queen's Printer, 1956, viii, 73 p., see "Chapter IV. Diminished Responsibility" at pp. 64-67 (Chairman: The Honourable J.C. McRuer); available at my Digital Library, http://www.lareau-law.ca/DigitalLibrary.html; the documents of the Royal Commission are at the National Archives, file RG 33, series 130, vol. 1 and 2; there is also a copy at the Great Library of the Law Society of Upper Canada; also published in French / aussi publié en français: Commission royale chargée d'étudier la défense d'aliénation mentale en matière criminelle, Rapport de la Commission royale chargée d'étudier la défense d'aliénation mentale en matière criminelle, Hull: Imprimeur de la Reine, 1956, viii, 75 p., voir "Chapitre IV. Responsabilité Diminuée", aux pp. 66-69 ( Président: L'honorable J.C. McRuer);disponible à ma bibliothèque digitale, http://www.lareau-law.ca/DigitalLibrary.html; les documents de la Commission royale sont aux archives nationales, dossier RG 33, collection (series) 130, vol. 1 et 2; il y a aussi une copie à la Great Library of the Law Society of Upper Canada;
"[p. 64]
DIMINISHED RESPONSIBILITY
37. The idea of providing for diminished responsibility of persons charged with crime is already recognized in Canada for section 204 and section 570 of the Criminal Code. Section 204 was formerly section 262 and was enacted by 1948, Statutes of Canada, c. 39, s. 7. The former section created the crime of infanticide to overcome the necessity of charging the mother of murder of her newborn child. It was taken from an English statute, The Infanticide Act, 1922, c. 18, which provided that, on a charge of murder against a woman who has caused the death of her newborn child, the jury might bring in a verdict of infanticide if, at the time, the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the child. In that event, she was to be dealt with and punished as if she had been guilty of manslaughter of such child. That act was replaced in 1938 by a new Act, c. 36, extending the application of the provision to children up to twelve months of age and including an extra ground for the defence, namely, that the balance of the mother's mind was disturbed by reason of the effect of lactation consequent upon the birth of the child. Our present section 204 C.C. covers both grounds. The English statute is a good example of the theory of diminished responsibility. There were, however, prior to the enactment of s. 570 of the present Code, grave defects in our law,1 as pointed out by McRuer, C.J.H.C. (Ont.) in Rex v. Marchello2 and as demionstrated in R. v. Jacobs.3 Section 204 reads:
A female person commits infanticide when by a wilful act or omission she causes the death of her newly-born child, if at the time of the act or omission she is not fully recovered from the effects of giving birth to the child and by reason thereof or of the effect or lactation consequent on the birth of the child her mind is then disturbed.
Section 262 made infanticide a substantive offence and not a lesser verdict on a murder charge. The result was much more sweeping than was intended. A woman tried here on a charge of infanticide under section 262 would have had a perfect defence if it had been clear from the evidence that she had fully recovered at the time of the act and intended to kill the child. Having been tried on the facts and acquitted, the doctrine of 'autrefois acquit' would have applied and she could not have been afterwards indicted for murder. The present section 570 was intended to overcome that grave defect. It reads as follows:
Where a female person is charged with infanticide and the evidence establishes that she caused the death of her child but does not establish that, at the time of the act or omission by which she caused the death of the child,
(a) she was not fully recovered from the effects of giving birth to the child or from the effect of lactation consequent on the birth of the child, and
(b) the balance of her mind was, at that time, disturbed by reason of the effect of giving birth to the child or the effect of lactation consequent on the birth of the child,
she may be convicted unless the evidence establishes that the act or omission was not wilful.
Section 569 of the present Code also permits a verdict of infanticide to be found by the jury, as is the case in England, on a charge of murder when the facts warrant it. It permits as well a verdict of disposing of the body with intent to conceal the fact of birth on a charge of either murder or infanticide where the facts warrant it. As the law now stands, the provisions of the Code relating to infanticide provide a good example of diminished responsibility.
38. Where murder is charged in Canada and the defence of insanity has failed, the doctrine does not apply. No consideration may be given by the court to the mental state of the accused as a basis of reducing the verdict to manslaughter (or in passing sentence) even though the prisoner may be certifiably insane. There is only one verdict, murder (and only one sentence, capital punishment). This situation disturbs the public conscience and points logically to the extension in this field of the principle of diminished responsibility.
1 S. 204 C.C.
2 (1951) O.W.N. 316.
3 105 C.C.C. 291.
[p. 65]
39. Sir James Stephen thought a similar situation in England a grave defect in the law. In his 'History of the Criminal Law of England'1 he wrote that diseases of the brain may just
...cause definite intellectual error, and if they do so their legal effect is that of other innocent mistakes of fact. Far more frequently they affect the will be either destroying altogether, or weakening to a greater or less extent, the power of steady calm attention to any train of thought, and especially to general principles, and their relation to particular acts. They may weaken all the mental faculties, so as to reduce life to a dream. They may act like a convulsion fit. They may operate as resistible motives to an act known to be wrong. In other words, they may destroy, they may weaken, or they may leave unaffected the power of self-control.
The practical inference from this seems to me to be that the law ought to recognize these various defects of madness. It ought, where madness is proved, to allow the jury to return any one of three verdicts: Guilty; Guilty, but his power of self-control was diminished by insanity; Not guilty on the ground of insanity.
40. In the United States, where there are degrees of murder, six states2 have recognized the principle of diminished responsibility in cases of mental weakness falling short of legal insanity and reduced the conviction in such a case to second degree murder. No state appears to have gone so far as to permit reduction of murder to manslaughter on that ground.3
41. In Scotland the principle of diminished responsibility has been tried in practice and has been found to work satisfactorily. It is confined to cases in which murder is charged as we would so confine it. We have no authority under our terms of reference to go further afield than its relationship to mental abnormality. As used in Scotland it is
...a device to enable the courts to take account of a special category of mitigating circumstances in cases of murder and to avoid passing sentence of death in cases where such circumstances exist.4
The principle is a logical development of Sir George Mackenzie's 'rule of proportions' which dated back to the fifteenth century and which recognized the obligation on the part of the law to deal not only with the clear cases of criminal responsibility and irresponsibility but with the intermediate cases as well.5 It and the subsequent doctrine of diminished responsibility provided a means whereby mental abnormality arising from emotional factors could be considered. Both of these doctrines recognized that, since the sense of perception in such cases was diminished, so the responsibility should be, and both were part of the development of the common law in Scotland. The recognition of the doctrine of diminished responsibility as one distinct from the earlier rule of proportions dates back to the case of H.M. Advocate v. Dingwall6 where Lord Deas directed the jury that they might treat the crime as falling short of murder on the ground of the weakness of mind of the prisoner, who had suffered from epileptic fits. Lord Justice Cooper gave an excellent statement of the doctrine in addressing the jury in the more recent case of H.M. Advocate v. Braithwaite:7
...even if a man charged with murder is not insane, still our law does recognize... that, if he was suffering from some infirmity or aberration of mind or impairment of intellect to such an extent as not to be fully accountable for his actions, the result is to reduce the quality of his offence in a case like this from murder to culpable homicide.
Under the Scottish doctrine the onus on the accused is only to satisfy the jury that the balance of probability on the evidence is in favour of the view that his accountability and responsibility were below normal.8 There has been a corresponding reduction in the number of cases going to the Secretary of State for medical inquiry following conviction.9
1 (1883), vol. 2, p. 174.
2 Connecticut, Illinois, Rhode Island, Utah, Virginia and Wiosconsin.
3 Report of the Royal Commission on Capital Punishment in Great Britain, 1949-1953, p. 413, para. 14.
4 Report of the Royal Commission on Capital Punishment in Great Britain, 1949-1953, p. 144, para. 413.
5 Psychiatry and the Law, Hoch and Zubin, Grune & Stratton Press, New York-London-1955.
6 (1876) 3 Cowper 335.
7 (1945) J.C. 455.
8 R. v. Braithwaite, (1945) J.C. 55; Report of the Royal Commission on Capital Punishment in Great Britain, 1949-1953, p. 131, para. 378.
9 Report of the Royal Commission on Capital Punishment in Great Britain, 1949-1953, para. 377.
42. In the Commonwealth, in India and Pakistan, the court may regard diminished responsibility as a reason for passing a sentence of life imprisonment instead of the death sentence. In Western Australia, diminished responsibility is ground for recording instead of pronouncing the death sentence. In South Africa and Southern Rhodesia, it may be regarded by the jury as an extenuating circumstance.1
43. The principle was recommended by some of the witnesses who appeared before our Commission and by some associations represented at the Commission hearings. Dr. Charles Martin, Que., pointed out that the principle of diminished responsibility is already recognized in the case of infanticide.2 Professor M. Cohen, Que., Chairman of the Committee on Research of the John Howard Society of Quebec, Inc., who spoke for himself and the Society, said:3
We recognize the need to have workables rules for the administration of criminal justice. This means that Courts must have practical methods to determine with reasonable directness the conditions under which an accused will be held:
(a) Responsible
(b) Not responsible
(c) To have lessened or limited responsiility
The M'Naghten Rules provide only a rough guide to a division between full responsibility and no responsibility. If the Courts could be given a workable guide to 'limited or lessened responsibility', there would be less need for the harsh and perhaps antiquated 'either/or' classification represented by the M'Naghten Rules.
Mr. Norman Borins, Q.C., Ont.,4 recommended a careful study of the Scottish doctrine of diminished responsibility and suggested its adoption in the event that his alternative recommendations of enlargement of the rules or abrogation were not accepted.5 Mr. John T. Carvell, N.B., Chairman of the Criminal Law Section, New Brunswick Division of the Canadian Bar Association, speaking on his own behalf and for the Criminal Law Section, was opposed to leaving mitigation to the executive following sentence,6 and favoured adopting the principle of diminished responsibility reducing murder to manslaughter where there is a serious impairment of mental faculty and insanity as a defence fails.7 Some of the judges in private session raised the question of diminished responsibility. The Canadian Bar Association submitted a resolution following its Annual Meeting in 1955 to the Commission recommending that
...a doubt concerning the capacity to form the necessary intention even though it is based on insanity evidence should be resolved in favour of an accused in reducing what would otherwise be murder to manslaughter.
it was not made clear whether the suggested amendment was to be made to section 16 or to section 203, and it may be that that feature of the problem was not explored by the Association. Under the Scottish law, as already pointed out, the burden of proof is on the accused, who has only to satisfy the jury by a balance of probabilities in his favour of the view that his accountability and responsibility were below normal.8 Under section 203, as pointed out in the Report,9 the burden of proof beyond reasonable doubt of the opposite proposition would fall on the Crown. We are approving of the Scottish law, which would be accomplished by amendment to section 16.
44. We look on the adoption of the theory of diminished responsibility as a means of ensuring that persons of border-line types should be less severely punished than sane persons. No matter what the law will be, section 16 amended or the New Hampshire rule, there will always be border-line cases to be considered.
45. One objection put forward to the adoption of the principle of diminished responsibility was that the sentence would be to a penal institution where there are not proper facilities
1 Ibid., p. 413, para 13.
2 Evid pp. 1154-5.
3 Exhibit 26, para 3, p. 1226-A9.
4 Evid., Exhibit 39-A, p. 1816.
5 Evid. p. 1475.
6 Evid. p. 171
7 Exhibit 8, Evid p. 99.
9 At p. 69.
for the care and treatment of mental cases. There are three answers to that objection: (1) It is now possible to have a prisoner certified in a proper case as insane and have him transferred to a mental institution; (2) it is to be hoped that the time is not far distant when there will be proper psychiatric facilities in all penal institutions for care of the mentally ill prisoners; and (3) the fact that a sentence of a mentally impaired person might be served in a penal institution is surely no argument against the sentence when the alternative is capital punishment. It is to be noted that, even if the royal prerogative of mercy were extended instead, the sentence would have to be served in a penal institution unless circumstances required removal to a mental institution by the prison authorities. In any event, whether a person is found not guilty on account of insanity or is found to have diminished responsability for his act or omission, proper safeguards should be set up to ensure that he will not be returned to society while he is still a danger to the public by reason of his mental incapacity.
46. No matter what the law may be or whether the principle of diminished responsibility in these cases is adopted or not, no one would ever suggest doing away with the royal prerogative of mercy, which is a necessary part of the administration of our criminal law." (pp. 66-67)
CANADIAN BAR ASSOCIATION, The 1955 Year Book of the Canadian Bar Association and the Minutes of Proceedings of its Thirty-Seventh Annual Meeting held at Ottawa, Ontario, August 29th to September 3rd, 1955, Ottawa: National Printers 1955, 178 p., at p. 71; copy at Ottawa University, location: FTX, Peridiovcals, KE 365 .A3 C34; research note: this motion was subsequently presented to the Royal Commission on the Law of Insanity as a Defence in Criminal Cases;
"The next section is that of Administration of Criminal Justice, Mr. Arthur Maloney.
MR. ARTHUR E. MALONEY, Q.C.: Mr. Chairman, the Committee on the Administration of Criminal Justice met on Thursday afternoon. The preceding day, Wednesday afternoon, the Committee on Public Relations staged a panel discussion on 'Inequalities of Criminal Law'. The Committee met on Thursday, and after considering a number of resolutions that had been submitted by the provincial subsections, the following three resolutions were approved, and I now place them before this meeting. The first resolution is one put forward by New Brunswick, and is as follows:
'RESOLVED that The Canadian Bar Association recommends to the Royal Commission presided over by Chief Justice McRuer and to the Department of Justice that a doubt concerning the capacity to form the necessary intention even though it is based on insanity evidence should be resolved in favour of an accused in reducing what would otherwise be murder to manslaughter.'
I move the adoption of that resolution, seconded by Mr. Lawrence Corriveau of Quebec City.
THE CHAIRMAN: You have heard the resolution; is there any discussion? All those in favour please signify? Opposed, if any?
CARRIED." (p. 71)
CASSELLS, John, "Diminished Responsibility" in The Canadian Bar Association, ed., Papers presented at the Annual Meeting, Banff, 1963, at pp. 234-270; note: "This article is based upon a paper which was to have been presented to the Ontario Crown Attorneys Association Convention at Cornwall, 1963" (p. 37); paper dated September 1963; copy at the Library of the Supreme Court of Canada, Ottawa (periodicals);
___________"Diminished Responsibility", (1964) 7 Canadian Bar Journal 8-28, 55 and 81-82; copy at Ottawa University, KE 365 .A2 C343 Location: FTX Periodicals;
CÔTÉ-HARPER, Gisèle, 1942-, Pierre Rainville, 1964-, et Jean Turgeon, 1951-, Traité de droit pénal canadien, 4e édition refondue et augmentée, Cowansville: Éditions Yvon Blais, 1998, lv, 1458 p., voir "2.7.3 L'atténuation de responsabilité" aux pp. 964-968, ISBN: 2894512589; contribution importante au sujet;
"L'atténuation de responsabilté [...]
La notion d'atténuation de responsabilité semble être source de confusion au Canada. Si, par cette notion, on entend le sens qu'on lui donne en droit anglais, il est clair qu'elle n'est pas reconnue en droit canadien, car on ne retrouve pas de disposition législative qui a pour effet de réduire de meurtre à l'homicide involontaire un verdict rendu malgré le fait que les éléments essentiels du meurtre aient été prouvés, lorsque la preuve démontre des troubles mentaux importants. En droit canadien, l'atténuation de responsabilité joue à un niveau moindre en servant à nier l'intention requise pour l'infraction et conduit à un verdict de culpabilité d'une infraction moindre et incluse. [...]
Il faut également l'informer [le jury] de la différence de norme de preuve selon que les troubles mentaux servent à réfuter l'intention spécifique requise ou servent à établir l'incapacité prévue à l'article 16 C. cr. [...]
Des troubles mentaux en marge de la définition de l'article 16 C.cr. peuvent pareillement faire obstacle à une condamnation pour vol ou fraude. [...]
Ainsi, ce moyen de défense, non expressément prévu par l'article 16 C. cr., a été peu à peu introduit en droit canadien par la jurisprudence. [...] Les troubles mentaux ne satisfaisant pas aux critères de l'article 16 C. cr. peuvent en fait s'avérer pertinents au moment d'évaluer si l'accusé était animé de l'intention spécifique que précise l'infraction qu'elle qu'elle soit. Ils peuvent aussi devenir un facteur pertinent à considérer lors de la détermination de la sentence." (pp. 694-697; notes omises)
Criminal Code, Revised Statutes 1985, chapter C-46, available at http://laws.justice.gc.ca/en/C-46/index.html (accessed on 1 June 2003); also available in French / aussi disponible en français: Code criminel, Lois Refondues 1985, chapitre C-46, article 786, disponible à http://lois.justice.gc.ca/fr/C-46/index.html (visionné le 1 juin 2003);
Criminal Code -- Annotated codes used by practioners/ Code criminel --codes annotés utilisés par les practiciens
in English (published every year) /en anglais:
GOLD, Allan D., The Practioner's Criminal Code, Markham, Ont.: LexisNexis Canada, 2008;
GREENSPAN, Edward L. and Marc Rosenberg, annotations by, Martin's Annual Criminal Code 2008, Aurora: Canada Law Book Inc.;
WATT, David and Michelle Fuerst, annotations by, The 2008 Annotated Tremeear's Criminal Code, Toronto: Carswell, A Thomson Company;
in French/en français (publié chaque année):
COURNOYER, Guy et Gilles Ouimet, Code criminel annoté 2008, Cowansville: Éditions Yvon Blais, une société Thomson; note: législation bilingue/bilingual legislation;
DUBOIS, Alain et Philip Schneider, Code criminel et lois connexes annotés 2008, Brossard: Publications CCH Ltée; note: législation bilingue/bilingual legislation;
DUCKETT, Mona T., "Diminished Responsibility", in National Criminal Law Program (2004 : Halifax, N.S.), Dalhousie University, Faculty of Law, and Federation of Law Societies of Canada, Substantive criminal law : 2004 National Criminal Law Program, Dalhousie University, Halifax, Nova Scotia, July 12 to 16, 2004 / presented by the Federation of Law Societies of Canada in conjunction with the Faculty of Law, Dalhousie University, [s.l. : s.n.], 2004, 3 v., in volume 2, Tab 12.4, 10 p.; copy at the Library of the Supreme Court of Canada KF9220 ZA2 N38 2004;
EDWARDS, J. Ll., "Diminished Responsibility -- A Withering Away of the Concept of Criminal Responsibility", in Gerhard O.W. Mueller, ed., Essays in Criminal Science, South Hackensack, N.J.: Fred B. Rothman and London: Sweet & Maxwell, 1961, xvi, 460 p. at pp. 299-341;
FEDERAL/PROVINCIAL WORKING GROUP ON HOMICIDE, Final Report of the Federal/Provincial Working Group on Homicide, [Ottawa], [Department of Justice Canada], June 1990, updated April 1991, xii, 170 p. (Co-Chairmen: Howard F. Morton, Ministry of the Attorney General, Province of Ontario and Jean-François Dionne, Quebec Department of Justice); copy of this report was obtained by François Lareau under an Access to Information Act request response dated November 9, 1998, file A-98-00183 from the Department of Justice Canada; also available in French / aussi disponible en français : Groupe de travail fédéral-provincial sur l'homicide, Rapport final du groupe de travail fédéral-provincial sur l'homicide, [Ottawa], [Ministère de la Justice Canada], juin 1990, révisé avril 1991, xii, 172 p. (Co-Présidents: Howard F. Morton, Ministère du Procureur général de l'Ontario et Jean-François Dionne, Ministère de la Justice du Québec); copie de ce rapport a été obtenu par François Lareau dans la réponse en date du 9 novembre 1998 de sa demande à la Loi sur l'accès à l'information, au Ministère de la Justice Canada, dossier A-98-00183;
"Recommendation 22 Exceptional Cases
Allow judges to impose a sentence below the statutory range where compelling circumstances, including mental disability, youth or provocation, lead to the conclusion that the ordinary minimum sentence would bring the administration of justice into disrepute.
There will always be a few exceptional cases for which even the low end of the range of sentence would be unfair. This is the problem with any minimum sentence. There should be a clearly defined judicial discretion to set a sentence below the statutory range where compelling circumstances, such as mental disability, youth or provocation, lead to the conclusion that the ordinary minimum sentence would bring the administration of justice into disrepute." (p. 88)
FERGUSON, Gerry, Submission to the Parliamentary Subcommittee on Recodification of the Criminal Law: Mental Disorder, Diminished Responsibility and Automatism, October 1992, in House of Commons, Sub-Committee on the Recodification of the General Part of the Criminal Code of the Standing Committee on Justice and the Solicitor General House of Commons, Minutes of Proceedings and Evidence of the Sub-Committee on the recodification of the General Part of the Criminal Code of the Standing Committee on Justice and the Solicitor General, Issue 5 of 2 et 18 November 1992, pp. 5A:195-5A:223; also published in French / aussi publié en français : Mémoire au sous-comité parlemantaire sur la nouvelle codification du droit pénal: troubles mentaux, responsabilité et automatisme, in CANADA, Chambre des Communes, Sous-comité sur la Recodification de la Partie générale du Code criminel du Comité permanent de la justice et du Solliciteur général, Procès-verbaux et témoignages du Sous-comité sur la Recodification de la Partie générale du Code criminel du Comité permanent de la justice et du Solliciteur général, octobre 1992, fasicule numéro 5 du 2 et 18 novembre 1992, aux pp. 5A:435-5A:460;
"8. Since the mental disorder defence results in total exemption from criminal liability, the level of impairment warranting a finding of insanity ought to be set where it is unreasonable to attribute any blame to the accused for failing to conform to the requirements of the law. For lesser impairment, where it is reasonable to attribute some blame to the accused (though not total blame), I favour a system of diminished responsibility. ...
IV. DIMINISHED RESPONSIBILITY
41. In paragraph 8, I indicated that I favoured a system of diminished responsibility in addition to the mental disorder defence. This was considered by the Department of Justice in the process of its consultations. However in its 1984 Report, it concluded (p. 29):
It is recommended that although ultimate adoption of the concept (of diminished responsibility) is a worthwhile goal, additional research and consultation should be conducted prior to formally adopting broad-based diminished responsibility provisions for the Criminal Code.
42. I am unaware of any additional research or consultation by the Department of Justice on this point. If this Parliamentary Committee believes, as I do, that diminished responsibility should be included in the Criminal Code, then the appropriate model in my opinion, is set out in the Department of Justice's 1984 Report. This model supplement the insanity test as folows:
(1) Everyone is partially excused from criminal responsibility for his/her conduct if, as a result of mental disorder, that person lacked substantial capacity to appreciate the nature, consequences or wrongfulness of such conduct or to conform to the requirements of the law.
(2) Everyone partially excused under subsection (1) of this section shall be convicted of the offence in a diminished degree [or in the second degree] and shall be subject to the same range of punishments as is applicable in respect of persons who are convicted of an attempt to commit the offences.
43. In its 1984 Report, the Department of Justice stated:
'There was a very general discussion during our consultations on the issue of diminished responsibility. There was some support for having this principle articulated in the Code.... The proposal would result in a reduction in the level of degree of offence. This form of diminished responsibility does not exist in the United States and only exists in England with regard to murder (reduced to manslaughter) and in Canada with regard to murder (reduced to infanticide pursuant to s. 216 of the Criminal Code, or to manslaughter by reason of provocation pursuant to s. 215). It has been suggested that a combination of the options available in England of diminished responsibility and hospital orders has resulted in the insanity defence being raised in relatively few cases in recent years.
Some of those who indicated support for this concept suggested that it should only apply to major offences as in the case in Great Britain. Others queried how diminished responsibility might operate in relation to the matter of mens rea.
The majority of whom we consulted who commented on this matter were of the opinion that much more work is required in terms of both research and consultation before the concept of 'diminished responsibility' can be formalized as part of the Criminal Code.'
44. I would add the following comments on the above diminished responsibility defence:
(i) This proposal is drafted in a manner to be consistent with the criteria in the mental disorder test. Since the criteria in the mental disorder test are wide - i.e., mental disorder has a wide definition, cognitive and volitional impairment are recognized, moral or legal wrongfulness are included -- the same criteria should prove ample for a diminished responsibility test.
(ii) It should be noted that this test as presently drafted excludes cultural, social or political disadvantage or impairment (i.e. the 'ghetto kid defence') unless such factors constitute 'mental disorder'.
Whether diminished responsibility should be extended beyond 'mental disorder' is a separate policy issue.
(iii) In Germany, diminished responsability applies to all offences but it operates statutorily only to reduce the punishment, not the level or degree of the offence.
(iv) It should also be noted that the English and German concepts of diminished responsibility use the word 'substantial' impairment.
45. Advantages
(i) This proposal recognizes that the line between sanity and insanity is not black and white, that there are degrees of responsibility due to different degrees of mental disorder.
(ii) It recognizes partial responsibility not only by reducing the sentence but also by reducing the offence. The latter point is significant since the name attributed to an offence inherently indicates the seriousness and/or culpability of the person convicted -- e.g., murder vs manslaughter, rape vs diminished rape [or rape in the first degree vs rape in the second degree]." (pp. 5A:199-200 and pp. 5A: 213-216)
FORTIN, Jacques et Louise Viau, Traité de droit pénal général, Montréal: Éditions Thémis, 1982, xi, 457 p., voir "La responsabilité atténuée" aux pp. 224-230;
GAGNÉ, Jacques, 1930-, et Pierre Rainville, Les infractions contre la propriété : le vol, la fraude et certains crimes connexes, Cowansville, Québec : Éditions Y. Blais, 1996, xxxiii, 514 p., voir "Les troubles mentaux" aux pp. 357-359, ISBN: 2894510527; copie à l'Université d'Ottawa, FTX General, KE 8958 .G336 1996;
"L'inculpé est par ailleurs en droit d'invoquer un dérangement mental dont les caractéristiques ne correspondraient pas aux critères de l'article 16(1) C.cr. La présence d'un trouble mental non conforme à l'article 16(1) peut en effet suffire à soulever un doute raisonnable relativement à la mens rea. Cette règle vaut d'ailleurs autant pour le vol que la fraude." (p. 357; une note omise)
GANNAGE, Mark, "The Defence of Diminished Responsibility in Canadian Criminal Law", (1981) 19 Osgoode Hall Law Journal 301-320;
GOLD, Alan D., Notes and Comments, "Insanity - Diminished Capacity", (1980-81) 23 The Criminal Law Quarterly 326-329;
GORE, Sally Elizabeth, 1979-, Premenstrual syndrome as a substantive criminal defence, LL.M. thesis, 2003, 97 leaves, Institut Institute of Comparative Law, McGill University; title noted in my research but thesis not consulted yet; my guess is that it may deal with the topic of this bibliography; ongoing research;
GRANT, Isabel, 1957-, Dorothy Chunn and Christine Boyle, The Law of Homicide, Scarborough (Ontario): Carswell, Thomson Professional Publishing, 1994-, 1 volume looseleaf with yearly supplements, see subchapter 6.11, "Diminished Responsibility", ISBN: 0459552244 (loose-leaf); there was a hardcover copy published in 1994, various pagings, ISBN: 0459552562 (pbk.);
GREENSPAN, Brian H., "Diminished capacity" in National Criminal Law Program: Substantive Criminal Law (1993: Montreal), [ed.], National Criminal Law Program, The Federation of Law Societies of Canada, Montreal (PQ): Federation of Law Societies, 1993, 2 volumes; information from http://gate.library.ualberta.ca/ (The GATE: NEOS Libraries' Catalogue) as seen on 11 November 2000; document not consulted;
HARRIS, Nikos, "The utility of a diminished responsibility defence: can an accused be 'half responsible' for murder?", (March 2002) 60(2) The Advocate (B.-C.) 211-218; important contribution;
HOLLAND, Winifred H., "Murder and Related Issues: An Analysis of the Law in Canada -- Report to the Law Commission", July 2005, in The Law Commission, The Law of Murder: Overseas Comparative Studies, [London: HMSO, 2005], at pp. 22-65; available at http://www.lawcom.gov.uk/docs/comparative_studies.pdf (accessed on 27 December 2005);
HOSKINS, Frank P., "Diminished Responsibility" in National criminal law program (2001 : Charlottetown, P.E.I.), ed., National criminal law program / The Federation of Law Societies of Canada, Charlottetown : Federation of Law Societies, 2001, in vol. 2 of 2; copy at Department of Justice Canada, Prairies Region, Edmonton Office, Law Library, call number: KF 9655 N36 2001; title noted but not consulted yet;
IVES, Dale E., "Partial Defences to Murder in Canadian Criminal Law Provocation, Excessive Force in Self-Defence and Diminished Responsibility", being Appendix B in The Law Commission, Overseas Studies, which is part of the Appendices to the consultation paper, Partial Defences to Murder, 31 October 2003, xiii, 249 p. (series; consultation paper; number 173); this study by Ives, at pp. 73-97 is available at http://www.lawcom.gov.uk/files/cp173apps.pdf (accessed on 27 April 2005); see also Appendix G, "Relevant Statutory Provisions and Proposed Provisions";
JORDAN, J.C., "Diminished Capacity", (1982-83) 25 The Criminal Law Quarterly 480-512;
KLINEBERG, Joanne, "Anger and Intent for Murder: The Supreme Court Decision in R. v. Parent", (2003) 41(1) Osgoode Hall Law Journal 37-73; deals with the "rolled-up" jury instruction defence;
KNOLL, Patrick J., 1950-, Criminal Law Defences: Textbook Edition of the title Criminal Law Defences Canadian Encyclopedic Digest Third Edition, 2nd ed., Scarborough: Carswell (Thomson Professional Publishing), 1994, 224 p., see "Condition Short of Mental Disorder" at p. 104, ISBN: 0459552392;
LAREAU, François, Bibliography/bibliographie:
• Mental Disorder and Fitness to Stand Trial in Canadian Law/
Désordre mental et la compétence à subir son procès en droit canadien
Authors/Auteurs: • A-C---• D-K---•L-R---• S-Z
LAW REFORM COMMISSION OF CANADA, The General Part - Liability and Defences, Ottawa: Minister of Supply and Services Canda, 1982, [xi], 204 p., (series; Working Paper; number 29), ISBN: 0662514297; copy of the English version of this working paper is available in pdf format at my Digital Library -- Canadian Criminal Law; information on the French version/informations sur la version française, Commission de réforme du droit du Canada, Partie générale - responsabilité et moyens de défense, Ottawa: Ministère des Approvisionnements et Services Canada, 1982, [xii], 239 p., (collection; Document de travail; numéro 29), ISBN: 0662514297;
"Shifting Role of Cr.C. s. 16
Originally Cr. C. s. 16 was judicially construed as a comprehensive statement of the law on criminal insanity. Unless an accused's mental disorder came within that section, it was -- apart from the rare situation of infanticide22 -- irrelevant to liability.23 No questions could arise as to diminished responsibility.
Recently, however, courts changed their view, and came to recognize that diminished responsibility, though not in itself a defence, might serve to negative mens rea. In the context of capital murder, on the issue whether the killing was planned and deliberate, they have allowed diminished responsibility to reduce capital to non-capital murder.24 In cases of murder, generally, both capital and non-capital, they have, despite Supreme Court of Canada assertions that diminished responsability forms no part of our law,25 allowed it to negative intent to kill and so to reduce murder to manslaughter.26 More recently they have allowed it to operate to negative any specific intent required by the definition of the offence.27 In this way a defence once thought to be clearly excluded by section 16 has now crept in by virtue of the case law." (pp. 43-44)" ...
22. Criminal Code, R.S.C. 1970, c. C-34, s. 216.
23. R. v. Kasperek, [1951] O.R. 776, 101 C.C.C. 375, 13 C.R. 206 (C.A.). McRuer Report Report of the Royal Commission on the Law of Insanity as a Defence in Criminal Cases (1956) at 64.
24. More v. The Queen, [1963] S.C.R. 522, [1963] 3 C.C.C. 289, 41 C.R. 98.
25. Ibid.; Chartrand v. The Queen, [1977] 1 S.C.R. 314, 26 C.C.C. (2d) 417, 64 D.L.R. (3d) 145, 8 N.R. 503.
26. R. v. Blackmore (1967), 1 C.R.N.S. 286, [1965-69] 4 N.S.R. 509 (N.S.C.A.); R. v. Mulligan (1974), 18 C.C.C. (2d) 270, 26 C.R.N.S. 179 (Ont. C.A.), affirmed [1977] 1 S.C.R. 612, 28 C.C.C. (2d) 266; R. v. Hilton (1977), 34 C.C.C. (2d) 206 (Ont. C.A.); Meloche v. R., [1975] C.A. 558 (Que.).
27. See MacDonald v. R., [1977] 2 S.C.R. 665 (robbery) and Rabey v. R., [1980] 2 S.C.R. 513, 15 C.R. (3d) 225, affirming (1977), 37 C.C.C, (2d) 461 (Ont. C.A.)" (p. 132)
___________Homicide, Ottawa: Minister of Supply and Services, 1984, [10], 117 p., (series; Working Paper; number 33), ISBN: 0662529871; copy of the English version of this working paper is available in pdf format at my Digital Library -- Canadian Criminal Law; information on the French version / informations sur la version française: Commission de réforme du droit du Canada, L'homicide, Ottawa: Ministère des Approvisionnements et Services Canada, 1984, [10], 129 p., (Collection; Document de travail; numéro 33), ISBN: 0662529871;
"Another reason militating against any need for an infanticide provision relates to case-law developments on mental disturbance and mens rea in homicide. Most appeal courts in Canada186 would now look at mental disturbance which falls short of section 16 insanity as nonetheless preventing a defendant from forming a specific intent to kill and so from actually committing murder.187 This being so, in appropriate circumstances women accused of murdering their new-born babies could be acquitted of murder on this ground and convicted instead of the included offence of manslaughter." (pp. 76-77) ...
"186. In cases of murder, the courts have allowed mental illness or mental disorder, though falling short of proof of insanity, to negative intent to kill and so to reduce murder to manslaughter. See: R. v. Blackmore (1967), 1 C.R.N.S. 286 (N.S. C.A.); R. v. Mulligan (1974), 18 C.C.C. (2d) 270 (Ont. C.A.), affirmed [1977] 1 S.C.R. 612; R. v. Hilton (1977), 34 C.C.C. (2d) 206 (Ont. C.A.); R. v. Meloche, [1975] C.A. 558 (Qué.). More recently, the courts allowed insanity to operate to negative any specific intent required by the definition of an offence. See MacDonald v. R.., [1977] 2 S.C.R. 665; Rabey v. R., [1980] 2 S.C.R. 513, affirming (1977), 37 C.C.C, (2d) 461 (Ont. C.A.).
187. See Stuart, supra, note 34 [D.R. Stuart, Canadian Criminal Law, Toronto: Carswell, 1982], at 337-342 for an analysis of this trend in the case-law." (p. 113)
LEGAL AID ONTARIO RESEARCH FACILITY, ( http://www.research.legalaid.on.ca/ ), Toronto; Research Memoranda on criminal law: # D11-1, "Diminished Responsability", 13 March 1996, 17 p. (as noted on 7 March 2001);
LEGETT, "The Defence of Involving Diminished Responsibility", (Sept. 1977) Crown's Newsletter; title noted in my research but article not consulted; a copy of this publication published by the Ontario Crown Association should be at the National Library, Ottawa;
"MacDonald v. The Queen, S.C.C. May 1976", (1976) Oct. C.L.A.S. side 1, pt. 2, side 2, pt. 1 [diminished responsibility; (1976), 22 C.C.C. (2d) 129 (C.M.A.C.); affd. 29 C.C.C. (2d) 257 (S.C.C.), Mewett & Manning, 1st ed., p. 221]; copy at the Library of the Supreme Court of Canada;
MATHIEU, François, "Dissertation juridique: responsabilité diminuée en droit pénal comparé", (1989) 3 Revue juridique des étudiants et étudiantes de l'Université Laval (R.J.E.L.) 157; note de recherche: ne constitue qu'un avis d'un travail de 48 p. sous la supervision du professeur Jacques Gagné; une copie du document se trouve à la Bibliothèque de l'Université Laval, KE 16 R454 89-18, et à la Bibliothèque de l'Université de Montréal, HBAZ/M431r/1989; on peut acheter le document; titre noté dans mes recherches mais article pas encore consulté;
McKINNON, G. D. (Gil D.), "Mental Disorder", June 28, 1992, 58 leaves, see on "Diminished Responsibility", pp. 28-31 (series; working paper prepared for The Canadian Bar Association Task Force; number 4); paper is available from the Canadian Bar Association in Ottawa; copy at the University of Montreal, Library of the Faculty of Law, HAAD W926 v.04 1991; research note: this paper is mentioned in The Canadian Bar Association Task Force, The Canadian Bar Association Task Force Report: Principles of Criminal Liability - Proposals for a New General Part of the Criminal Code, Ottawa: Canadian Bar Association, [1992], x, 190 p., at p. 189, ISBN: 0920742335;
"There are many Canadian authorities that recognize the relevance of mental disorder, short of insanity, to specific intent. Shortly after the statutory introduction of 'diminished responsibility' to the English Homicide Act (1957), the Supreme Court of Canada in cases of capital murder held that evidence of mental disorder falling short of the s. 16 requirement had a 'direct bearing' on the question of whether the accused's murder was deliberate: More v. The Queen [1963] SCR 522, R. v. Mitchell [1964] SCR 471 [see Spence, J., at pp. 474-475], R. v. McMartin [1965] 1 CCC 142 [see Ritchie, J., at pp. 154-155] (SCC), R. v. Boivin (1970) 1 CCC (2d) 403 (SCC).
This principle was followed in subsequent decisions dealing with first degree murder: R. v. Kmatch (1979) 9 CR (3d) 331 (Sask. C.A.), R. v. Mahoney (1979) 50 CCC (2d) 380 (Ont. C.A.), (1981) 67 CCC (2d) 97 (SCC); R. v. Knuff (1980) 52 CCC (2d) 523 (Alta. C.A.). It was also applied to trials of second degree murder: R. v. Blackmore (1967) 1 CRNS 286 (NSCA), R. v. Meloche (1975) 34 CCC (2d) 200 (QCA), R. v. Browning (1976) 34 CCC (2d) 200 (OCA), R. v. Hilton (1977) 34 CCC (2d) 206 (OCA), R. v. Lechasseur (1977) 38 CCC (2d) (Que. C.A.) 319. It has even been extended to other offences of specific intent: R. v. MacDonald (1975) 29 CCC (2d) 257 (SCC), a charge of robbery, R. v. Rabey (1977) 37 CCC (2d) 461 (OCA), a charge of causing bodily harm with intend to wound.
In R. v. Wright (1979) 48 CCC (2d) 334 (Alta. C.A.), a case of second degree murder, Prowse, J.A., makes the point that medical disorders short of insanity are relevant for the limited purpose of showing that an accused did not in fact form the requisite intent but cannot be used to show the accused lacked the capacity as that is a s. 16 issue ...
Although Justice de Grandpre's judgment for the Supreme Court of Canada in Chartrand v. The Queen (1976) 26 CCC (2d) 417 clearly rejects the doctrine of diminished responsibility in Canada, evidence of mental disorder short of insanity continues to be admitted on specific intent offences as part of the modern approach of putting all the relevant circumstances on the issue of intent before the trier of fact. That such a practice will be permitted to continue on a charge of murder is clear from obiter in Swain where Lamer, C.J. states p. 41:
However, is such evidence of mental impairment is, in the view of the trier of fact, insufficient to meet the requirements of section 16, the accused is still entitled to have such evidence considered with respect to the essential element of mens rea. This accords with the current practice wherein an accused has been able to deny the element of planning and deliberation or the specific intent required for murder despite the fact that section 16 has not been satisfied.49
Given the new common law rule enunciated in Swain v. The Queen, supra, for holding a hearing on the issue of insanity only after the actus reus and mens rea have been proven (p. 41), except where the accused wishes to raise it during the trial of the offence some of the confusion over the purpose of psychiatric evidence on mental disorder will be removed and the principle of diminished responsibility migh become more accepted in Canadian criminal law -- at trial the evidence of mental disorder will be relevant to mens rea and on a subsequent insanity hearing it will be relevant to capacity.
49. See Walsh's paper on 'The Concepts of Diminished Responsibility in Cumulative Intent: a Practical Perspective", (1991) 33 C.L.Q. [The Criminal Law Quarterly] 229 where he strongly argues that there is no such defence known as 'diminished responsibility' in Canada." (pp. 29-31)
McLACHLIN, The Honourable Madame Justice B.M., "Crime and Women -- Feminine Equality and the Law", (1991) 25 University of British Columbia Law Review 1-22, see on diminished responsability, pp. 18-19;
MEWETT, Allan W., 1930-, and Morris Manning, Mewett & Manning on Criminal Law, 3rd ed, Toronto: Butterworths, 1994, lxiv, 959 p., see "Effect of Mental Disorder Short of S. 16" at pp. 480-489, ISBN: 0409903752 (bound) and 0433396458 (pbk.); important contribution;
MOORE, Timothy E. and Melvyn Green, "Fetal Alcohol Spectrum Disorder (FASD): A Need for Closer Examination by the Criminal Justice System", (2004) 19 Criminal Reports (6th series) 99-108;
"The participation rates of FASD persons in criminal proceedings raises a wide array of concerns, including but not limited to issues related to investigative procedures, witness advocacy, fitness to stand trial, diminished capacity, pre-trial diversion, effective representation, the role of expert evidence, persistent recidivism, special supervision needs during probation and parole, testimonial capacity and reliability, false confessions and sentencing. This paper provides an introduction to the last three issues, with particular emphases on the plight of young persons -- both defendants and complainants -- who suffer from the disorder." (pp. 102-103)
National Criminal Law Program (2004 : Halifax, N.S.), Dalhousie University. Faculty of Law, Federation of Law Societies of Canada, Substantive criminal law : 2004 National Criminal Law Program, Dalhousie University, Halifax, Nova Scotia, July 12 to 16, 2004 / presented by the Federation of Law Societies of Canada in conjunction with the Faculty of Law, Dalhousie University, [s.l. : s.n.], 2004, 3 v.; one of the subject covered is "Defences of Capacity & Awareness"; copy at Dalhousie University, NSHDL KB 192 N271 2004; title noted in my research but document not consulted yet (14 May 2005);
NOWLIN, Christopher, "Taking Aboriginal Justice Beyonf Gladue: Canadian Criminal Law in Conflict with Human Rights", (2004) 67(1) Saskatchewan Law Review 59-96;
PARENT, Hugues, 1970-, Traité de droit criminel, Tome 1. L'acte volontaire et les moyens de défense, Montréal : Éditions Thémis, 2003, xxviii, 587 p., voir "L'atténuation de responsabilité" aux pp. 145-147, ISBN: 2894001703;
PINK, Joel E., and Deirdre R. Murphy, "Diminshed Capacity" in National Criminal Law program (1998: Victoria, B.C.), [ed.], National Criminal Law Program, The Federation of Law Societies of Canada, Victoria : Federation of Law Societies, 1998, volume 1 of 2, section 4.2, 11 p.; copy at the Library of the Supreme Court of Canada, Ottawa, KF9220 ZA2 N38 1998 v. 1 c. 01;
ROACH, Kent, 1961-, Criminal Law, 2nd ed., Toronto (Ontario): Irwin Law, 2000, xx, 370 p., (series; Essentials of Canadian Law), ISBN: 1552210413;
"EFFECT OF A MENTAL DISTURBANCE SHORT
OF INSANITY ON MENS REA
Some judges have confused the relevance of evidence of mental disturbance to the determination of mens rea with the separate issue of Parliament's choice not to create a defence of diminished responsibility to reduce a killing from murder to manslaughter.74 Although there is no defence of diminished responsibility in Canadian criminal law, the growing consensus is that evidence of mental disturbance or illness should be considered when determining whether the accused had the required mens rea. Such evidence may prevent the Crown from proving that the accused had the subjective foresight of death required for murder conviction.
74 This is a defence in England. Homicide Act, 1957 (U.K.), c. 11, s. 2." (p. 229)
SADAVA, Stan W., Lynne Angus, and Robert Forsyth, "Perceived mental illness and diminished responsibility: a study of attributions", (1980) 8 Social Behaviour and Personality 129-136; copy at Ottawa University, HM 1001 .S625 Location: MRT Periodicals; article of social sciences; the authors are from Brock University;
"[Abstract] Subjects read reports of an accident, in which the severity of consequences was varied, and where the protagonist was described as 'normal' or as exhibiting 'symptoms' of alcohol abuse, paranoid delusions, acute anxiety. Although greater mental illness was perceived in the alcoholism and paranoid cases, greater responsibility was also attributed to the alcoholic, and more severe penalties were recommended in both cases. Greater responsibility was attributed when the consequences were severe in the normal case only. The implications were discussed for the concept of self-protective attributions and for the notion of mental illness as denoting diminished capacity for responsibility." (p. 129)
SAUNDERS, R.P., editor-inchief; and J. McMunagle, Criminal Law in Canada: an introduction to the theoretical, social and legal contexts, 4th ed., Toronto: Carswell (Thomson Professional Publishing), 2002, xxi, 780 p.; see "Defence of Mental Disorder and Diminished Responsibility"
at pp. 723-743, ISBN: 0459273299; note: previous editions under the title: An Introduction to criminal law in context; copy at Ottawa University, FTX General, KE 8808.2 .I57 2002; not consulted yet;
SCHNEIDER, Richard D., Diminished Responsibility Defence: How It Might Work, LL.M. thesis York University, 1998, 239 p.; thesis advisor: Prof. Alan Young; title noted in my research but thesis not consulted;
SCOLLIN, John A., "Observations on the Possibility of Introducing into the Law of Canada the Doctrine of Diminished Responsibility" in The Canadian Bar Association, ed., Papers presented at the Annual Meeting, Banff, 1963, at pp. 271-280; paper dated September 1963; copy at the Library of the Supreme Court of Canada, Ottawa (periodicals);
STUART, Don, 943-, Canadian Criminal Law: A Treatise, 4th ed., Scarborough: Carswell, 2001, liv, 733 p., see ; pp. 399-403, 414-416; and 548-549 ISBN: 0459261703 (bound) and 0459261118 (pbk.); very important contribution to the subject; there is now a 5th ed.: Toronto: Thomson/Carswell, 2007, xix, 815 p., ISBN: 978 0779812950;
"There is thus much authority allowing evidence of mental disorder to negative mens rea in Canadian law in the context of murder and some authority respecting other offences. This doctrine is quite distinct from the specialized 'diminished responsibility' defence to murder in England, which allows mitigation on compassionate consideration of substantial impairment of mental responsibility arising from abnormality of the mind. The Canadian development now seems to be merely a reflection of commendable judicial concern to take the subjective mens rea inquiry seriously. Why shouldn't evidence of mental disorder be relevant? However, in view of the potential overlap with the defence of insanity at trial, one can easily agree with Bayne that the Canadian 'escape route' from M'Naghten and restricted sane automatism 'involves so much uncertainty and semantics' that it highlights the need for comprehensive reform of the law of insanity." (4th ed., (pp. 402-403; notes omitted)
SUPREME COURT OF CANADA decisions / Arrêts de la Cour suprême du Canada :
• Chartrand v. The Queen, [1977] 1 S.C.R. 314;
• R. v. Jacquard, [1997] 1 SCR 314; available at http://www.lexum.umontreal.ca/csc-scc/en/pub/1997/vol1/index.html;
• R. v. Parent, [2001] 1 S.C.R. 761; available at http://www.lexum.umontreal.ca/csc-scc/en/pub/2001/vol1/index.html;
• R. v. Robinson, [1996] 1 S.C.R. 683; available at http://www.lexum.umontreal.ca/csc-scc/en/pub/1996/vol1/index.html;
• R. v. Warsing, [1998] 3 S.C.R. 579; available at http://www.lexum.umontreal.ca/csc-scc/en/pub/1998/vol3/index.html;
TALBOT, Catriona, Diminished responsibility, Thesis (M.A.), Dalhousie University, Halifax (Nova Scotia), 1977, i, 71 leaves; title noted in my research but thesis not consulted yet;
TANOVICH, David M. and Gerry Ferguson, Annual Review of Criminal Law 2001, Carswell, a Thomson Company, 2002, xxvii, 200 p., ISBN: 0459271148; see the following: " Mens Rea and Anger/Rage" at pp. 3-4 and "Provocation" at pp. 48-51;
TOPP, Robert C., "A Concept of Diminished Responsibility for Canadian Criminal Law", (1975) 33 University of Toronto, Faculty of Law Review 205-216; also found (excerpts) in David N. Weisstub, ed., Law and Psychiatry in the Canadian Context, New York: Pergamon Press, c1980, xlvi, 911 p., at pp. 631-635, ISBN: 0080231349; copy at Ottawa University, FTX General: KE 514 .A7L37 1980;
TROTTER, Gary T., "Anger, Provocation, and the Intent for Murder : A Comment on R. v. Parent", (2002) 47(3) McGill Law Journal 669-690;
"The Supreme Court's decision in R. v. Parent raises important questions about the effect of anger on the intent for murder. The Court's decision suggests that, outside the defence of provocation, anger alone is insufficient to vitiate the intent for murder. The author is critical of the Court's approach to the impact of anger on murderous intent. He argues that the question of whether anger is capable of negating the intent for murder should be left to the jury to decide on the facts. In the author's opinion, the Court's reasoning it is at odds with settled law relating to the intent for murder. He indicates that this tension may be related to its concern with the scope of the provocation defence, and its failure to distinguish between the two intents for murder in paragraph 229(a) of the Criminal Code. This is significant because the intent in subparagraph 229(a)(ii), which requires knowledge of likely death, may be more susceptible to anger than a simple intent to kill in subparagraph 229(a)(i)." (Source: http://www.journal.law.mcgill.ca/abs/473trott.html, accessed on 9 September 2003; un résumé en français est aussi disponible à ce site)
WALSH, John J., "The Concepts of Diminished Responsibility and Cumulative Intent: A Practical Perspective", (1990-91) 33 The Criminal Law Quarterly 229-246;
WATT, David, 1948-, Ontario Specimen Jury Instructions (Criminal), Toronto: Thomson/Carswell, [2003], xiii, 1101 p., see: "Final 70, Cumulative Effect of Evidence on proof of Mental Element in Murder (The Rolled Up Instruction)", at pp. 1026-1028, ISBN: 0459254928; copy at the Library of the Supreme Court of Canada, Ottawa, KF 9682 W38 2003 c. 01;