Not Criminally Responsible and Moral Wrongfulness

R. v. Campione, 2015 ONCA 67

[28]       Section 16(1) of the Criminal Code states:

No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.

[29]       The issue at trial was whether the appellant was incapable of knowing that her acts were wrong.  As noted above, the experts agreed that she was capable of appreciating the nature and quality of her acts, and that she understood the killings were "legally wrong".  They differed, however, on whether she had the capacity to understand that they were "morally wrong".  

[30]       The concept of "moral wrongfulness" in this context has been established by the Supreme Court of Canada in R. v. Chaulk, [1990] 3 S.C.R. 1303, R. v. Oommen, [1994] 2 S.C.R. 507, and their progeny.  The focus is not on whether the accused lacks the general capacity to know right from wrong, but rather on whether he or she is deprived – by reason of a mental disorder (including, in some cases, delusions) – of the capacity to know that the particular act is right or wrong having regard to the everyday standards of reasonable people:  Oommen, at pp. 516-20.  It follows that not every mental illness or delusion-driven subjective view will qualify an accused for the s. 16 defence.  As Lamer C.J.C. stated in R. v. Ratti, [1991] 1 S.C.R. 68, at p. 80:

It is not sufficient to decide that the appellant's act was a result of his delusion.  Even if the act was motivated by the delusion, the appellant will be convicted if he was capable of knowing, in spite of such delusion, that the act in the particular circumstances would have been morally condemned by reasonable members of society.

[31]       Moral wrongfulness as contemplated in s. 16 is a slippery concept to apply.  However, this Court very succinctly summarized the relevant considerations in Ross, at para. 27, when it stated that "a subjective belief by the accused that his conduct was justifiable will not spare him from criminal responsibility even if his personal views or beliefs were driven by mental disorder, as long as he retained the capacity to know that it was regarded as wrong on a societal standard": see also R. v. Woodward, 2009 ONCA 911, [2009] O.J. No. 5484, at para. 5.