In order to be found not criminally responsible, the judge or jury must find that the defendant did commit the offense, but that a mental disorder at the time of the offense prevented him or her from appreciating the quality and nature of the offense, and prevented him or her from knowing the act was wrong (Department of Justice, Canada, 2002). To determine criminal responsibility under the NCRMD plea, there are nine main factors. These include evidence of a mental disorder, the motive for the crime, the planning and preparation of the crime, evidence of impaired functioning, the actions following the crime, past criminal history, past psychiatric history, delusions or hallucinations, and knowledge of right from wrong at the time of the offense (Hucker, 2003). If the defendant is found to be not criminally responsible, either the judge, or a Review Board makes a disposition. If the judge gives the disposition, and if the judge determines that the defendant is to be discharged unconditionally, and is not a threat to society, no further action is necessary. On the other hand, if the judge determined that the defendant is to be discharged with conditions, or is to be placed in a mental health facility, the decision is to be reviewed by a Review Board no less than 90 days following the disposition. The Review Board can also unconditionally or conditionally release the offender, or place the offender in hospitalization. Each year following the disposition, the Review Board reevaluates the defendant's situation, and makes changes accordingly (Consolidated Statutes and Regulations 672.54, 1992).

It is important to note that prior to changes made to the Criminal Code in 1992, under Parliament Bill C-30, defendants successful in the NCRMD defense were automatically confined to an institution for an undetermined length of time. With Bill C-30, time limits were placed on the fitness to stand trial issue, Review Board's were established, and limits were placed on the amount of time a defendant can be confined without review. Additionally, those defendants later transferred to a prison institution, pending their recovery, are allowed to have their sentences reduced by the amount of time spent in a mental health institution (Roesch, 1997).

There have been many challenges to the Criminal Code in relation to the NCRMD defense, in part due to the original definitions and clarifications set forth in Section 16 of the Code, and in some cases, these challenges have provided changes or created precedence for other cases. Each case shows how complex the issue of mental illness in relation to criminal responsibility can be, and how difficult the defense can be to prove to a jury. While the defense is an accepted one in Canadian law, it is one that is consistently challenged.

One example of this is the case of R. v. Chaulk in 1990. In the case, the defendants Robert Chaulk and Francis Morrissette were found guilty of first-degree murder, after the jury rejected an insanity defense. The defendants were tried in adult court, at ages 15 and 16, and expert witnesses had testified that the two individuals suffered from paranoid psychosis. The defendants did know Canadian Law, and thus knew the act was considered illegal, but because of their psychosis, felt the laws did not applied (R. v. Chaulk, 1990).

The defendants appealed their lower court ruling, based on the idea that Sections 16(4) of the Code violated the Canadian Charter of Rights and Freedoms. In addition, the appeal stated that the judge in the case had misstated in his charge to the jury regarding the effects of mental impairment on the ability to plan and deliberate. When the Court of Appeal dismissed the appeal, the defendants appealed to the Supreme Court of Canada, who allowed the appeal (R. v. Chaulk, 1990).

The final decision of the Court found that Section 16(4) of the Code, which states that all parties are presumed to be sane until proven otherwise, did violate the Canadian Charter of Rights Section 11(d), which states that the burden of proof is on the State. However, the Court noted that the violation was justifiable, under Section 1 of the Charter, since the objective of s. 16(4) was to avoid placing the burden of proof of providing sanity on the Crown (R. v. Chaulk, 1990).

Perhaps more importantly was the decision about the meaning of "wrong," as set forth in s. 16(2). The trial judge in the lower court had instructed the jury to interpret "wrong" as "legally wrong" when determining if the defendant knew that the...

v. Chaulk, 1990). Since the defendants in the case obviously understand the legal laws of Canada, but did not find them morally relative to themselves, this was an imperative distinction. The Court agreed, setting precedence for future courts to interpret the law as "morally wrong" rather than "legally wrong," an undeniably crucial discernment.
Another Supreme Court case that further clarified Part XX.1 of the Criminal Code, and influenced later decisions was that of Winko v. British Columbia.

In the case, Winko was charged with attacking two pedestrians in 1983, but was found NCRMD, and was institutionalized. In 1995, the Review Board granted Winko conditional discharge. Winko appealed, seeking an absolute discharge, claiming that XX.1 of the Criminal Code violated his rights under the Charter of Rights and Freedoms (Winko v. British Columbia, 1999).

Winko's appeal was denied. In the Court's decision, they noted that the goal of the Review Board was to ensure the public safety, concerning decisions made about a defendant's threat to public safety. While s. 7 of the Charter does protect against unequal treatment based on stereotypes, and their right to be treated with "dignity," the Court determined that an NCR accused was treated differently not based on stereotype, but on the characteristics of the persons mental illness. Additionally, the Court ruled that this differential treatment was not discriminatory, but rather, an enforcement of XX.1 of the Code, which promises differential treatment based on the needs of the NCRMD defendant. The goal of the Code, according to the Court, was to provide care and to attempt to assist the accused, and that limits placed on the freedoms of that individual are to protect society, not for penal purposes (Winko v. British Columbia, 1999).

Still another recent Supreme Court case involving a verdict of NCRMD is that of R. v. Molodowic in 2000. In this case, Molodowic admittedly shot and killed his grandfather. At his trial, two expert witnesses testified that Molodowic had a mental disorder that could conceivably cause him to know his actions were legally wrong, but not morally wrong. The judge n the case instructed the jury that, while they had to incorporate the expert witness testimony into their decision, they could disagree, and find the defendant guilty, which they did. In the appeal, Molodowic challenged that the verdict of the jury was unreasonable, in light of the expert testimony given, and that he should be granted the right to appeal their decision (R. v. Molodowic, 2000).

The Supreme Court decided in favor of Molodowic. In their decision, the Court noted the test of "reasonability" of a verdict. According to the Court, the proper test is to determine whether the verdict given is one that the jury could reasonably give, if acting judicially. The Court also noted that juries are undoubtedly skeptical in issues of NCRMD cases, and that this alone should give cause for concern in a case where the verdict is guilty. In the case of Molodowic, all evidence pointed to a mental disease, yet the jury still found him guilty, and the lower appeals court upheld the decision. According to the Court, it was this inability for the jury to accept that a person could know an act was legally wrong and plan the act yet not know the act was morally wrong that granted Molodoic's right to appeal (R. v. Molodowic, 2000).

These are just a few cases that show the vastly complex issue of the NCRMD defense. With the passage of Bill C-30, amending the Criminal Code, rates of NCRMD defenses have risen in Canada, many for minor offenses. Prior to 1992, there were approximately 10 persons per year found NCRMD in British Columbia, for example, whereas since that time, there have been almost 40 per year. Additionally, studies have shown that today's class of NCRMD defendants have many more prior hospitalizations on record than those in prior years. Still further, current NCRMD offenses differ from previous years. In 1992, almost half those found NCRMD were on trial for murder or attempted murder. Current statistics show this percentage down to less than 11% of cases. However, non-violent offenders, such as those on trial for robbery or drug violations, have risen to almost 45% (Standing Committee on Justice and Human Rights, 2002).

Based on that information, it is obvious that the NCRMD defense is a much-needed defense in the…