Tuesday, April 1, 2014

Someone found NCR (not guilty by reason of insanity) is not guilty of a criminal offence and should not be treated as guilty

Kachkar (Re), 2014 ONCA 250 reminds us of the distinction between NCR and guilt. Quaere whether this suggests government changes to make NCR more onerous will meet with the Constitution and fundamental justice?  The Court holds: 

[21]       In considering these issues, it is important to remember that, despite the respondent's actions on January 12, 2011 and their tragic consequences, he was not convicted, but found not criminally responsible on account of mental disorder.  The existence of a distinct NCR status in our law reflects the moral conviction that those suffering from mental disorders that render them incapable either of appreciating the nature and quality of their criminal act or of knowing that these acts were wrong are exempted from criminal responsibility.  As McLachlin J. (as she then was) said in Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, at para. 31: "Criminal responsibility is appropriate only where the actor is a discerning moral agent, capable of making choices between right and wrong."

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