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Has the Supreme Court Tightened the NCRMD Defense or further Muddied the Waters?

Mr. Joseph Neuberger LL.B., LL.M., and Dr. Julian Gojer M.B.B.S., F.R.C.P.C., J.D.

The Supreme Court of Canada recently ruled in Bouchard-Lebrun[1] that a drug induced psychosis or a toxic psychotic state is not a Mental Disorder. The appellant in this case had brutally assaulted two individuals while he was in a psychotic condition purportedly caused by ecstasy consumed a few hours earlier causing serious and permanent harm to a victim. He was convicted by the Court[2] on two counts of aggravated assault and assault and tried unsuccessfully on appeal to obtain a verdict of not criminally responsible on account of mental disorder[3]. The argument that a toxic psychosis resulting from the voluntary consumption of drugs is a “mental disorder” within the meaning of s. 16 of the Criminal Code of Canada[4] was rejected on appeal and was unanimously upheld by the Supreme Court of Canada. On the surface, it appears that the perennial problem of deciding on whether a drug related or toxic psychosis is a mental disorder or not, has been answered[5] [6]. This decision however, will have a much broader impact on other cases involving mental health issues.

The conceptual underpinnings of the term “drug-induced” psychosis and “toxic” psychosis are pleasantly confusing especially when one examines the present Diagnostic and Statistical Manual of Mental Disorders (DSM IV TR)[7] that lists diagnostic entities like substance induced psychotic disorder, substance induced delirium, delirium due to withdrawal from a substance or alcohol etc. While the criteria to make such diagnoses are clear, the association of specific drugs with psychosis in terms of dose, onset and duration are unclear. Given this medical uncertainty, it is no wonder that the legal community has struggled with the understanding of toxic or drug induced psychosis and its relevance to the determination of criminal responsibility[8]. This uncertainty is further reflected in how these diagnostic entities impact on criminal responsibility when one struggles with determining whether the drug caused the psychosis or was it merely associated with the psychosis, or did it worsen a pre-existing psychosis, or did it unmask a latent psychosis in a predisposed individual or exacerbated the existing psychotic illness. In this case, one can glean from the decision that a psychosis contemporaneous with intoxication that is self-induced, is no defense. What is not clear is how to approach this contemporaneous association given that some drugs of abuse can remain in the body long after commonly accepted features of intoxication have abated but features of a psychosis persist. In the U.S. similar confusion exists when dealing with drug induced psychosis. In People v Skinner[9], the California Court of Appeal held that the mental state of the accused should be “fixed and stable”, last for a reasonable period of time and not be solely dependent on the ingestion and presence of drug in the body. This principle was followed in Commonwealth of Virginia v Dillard[10]and the concept of “settled insanity” or persistence of psychosis is well recognized in the U.S[11]. The duration of the psychosis in relationship to drug use was also addressed in Oakley[12].

The Supreme Court concluded in this case that the malfunctioning of the mind that results exclusively from self-induced intoxication cannot be considered a disease of the mind in the legal sense, as it was not a product of the individual’s inherent psychological makeup and that it was more likely caused by an external factor, the drug. In drawing conclusions that a toxic psychosis, as opposed to simple intoxication has nothing to do with internal factors unique to the individual, ignores the multifactorial nature of such conditions and gives a wider meaning to the concept of intoxication. By stating that a toxic psychosis seems to be nothing more than a symptom, albeit an extreme one, the court also places a toxic psychosis at one end of the spectrum of intoxication, ranging from simple inebriation at one end to delirium and psychotic states indistinguishable from conditions like Schizophrenia at the other. The analysis fails to distinguish the sedative and amnestic impairments seen in simple intoxication from delusions and hallucinations that emerge. To state that there is no threshold of intoxication beyond which s. 33.1 Cr. c[13]. does not apply to an accused, equates toxic psychosis with intoxication. This legal characterization does not address the fact that the individual has no control of the onset or timing of the emergence of a drug induced psychotic state. Similar arguments distinguishing intoxication leading to drunkenness from drunkenness leading to delirium tremens was discussed by O’Sullilvan J.A. in Malcolm[14], by Philip, J.A. in Godfrey[15], and by Martin, J.A in Rabey[16] (at page 477). Bouchard-Lebrun[17] is at odds with how the courts have dealt with similar cases like Leudecke[18], where voluntary intoxication with alcohol and non-prescribed drugs and a sexsomnia or an alcohol triggered/associated episode of sleep walking and were be considered worthy of a Section 16 (1) defense.

In the case at bar, The Supreme Court expanded the term intoxication invoking policy considerations in denying an accused who voluntary consumes a psychoactive substance from availing of a section 16 (1) defence. Unlike in section 33.1, the denial of this defense also applies to offenses of a non-violent nature, by saying that self-induced intoxication in the broadest of definition is not a Mental Disorder. Bouchard-Lebrun[19] does however represent a proposition that short lived intoxication states that are associated with psychotic features that remit fairly quickly, and presumably after the drug has left the body, and based on expert opinion that there are no other internal contributory factors, are not Mental Disorders for the purposes of a Section 16(1) defense. The application of this proposition will likely be fact driven and contextualized[20] and the courts will need to conduct the analysis adopting a holistic approach[21].

[1] R.v. Bouchard-Lebrun, [2011] SCC 58, [2011] SCC 58

[2] R.v. Bouchard-Lebrun, (2008 QCCQ 5844 (CanLII))

[3] R. v. Bouchard.-Lebrun, (2010 QCCA 402 (CanLII))

[4] Criminal Code, R.S.C. 1985, c. C-46, ss. 2, 16, 33.1, 266(a), 268, 348(1)(a), 463, Part XX.1.

[5] R.v.Huppie [2008] A.J. No.989, 2008 ABQB 539

[6] R.v.Lauv. [2004] B.C.J.No.1672, 2004 BCSC 1093, 63 W.C.B (2d) 64

[7] Diagnostic and Statistical Manual of Mental Disorders. 2000. Fourth Edition Text Revision. American Psychiatric Association.

[8] A. Carroll, B. McSherry, D. Wood, and S. Yannoulidis, Drug-associated psychoses and criminal responsibility, Behavioural Sciences and the Law (2008) 26. 633-653.

[9] People v Skinner 185 Cal App, 3d 1050 (1986)

[10] Commonwealth of Virginia v Dillard unreported, No. 05CR03F00114-99 (D.Va.Cir.Ct.2003)

[11] J.Feix and G.Wolber. Intoxication and settled insanity: A finding of not guilty by reason of insanity. The Journal of the American Academy of Psychiatry and Law. (2007) 35(2), 172-182.

[12] R.v. Oakley. [1986] O.J. No. 96, 24 C.C.C. (3d) 351

[13] Supra 4.

[14] R.v.Malcolm [1989] M.J. No. 375, [1989] 6. W.W.R. 23, 58 Man.R. (2d) 286, 50 C.C.C. (3d) 172, 71 C.R. (3d) 238, 49 C.R.R. 279, 8 W.C.B. (2d) 25

[15] R.v.Godfrey (1984), 11 C.C.C. (3d) 233

[16] R.v.Rabey [1980]2 S.C.R. 513

[17] Supra 1.

[18] R.v. Luedecke [2008\ O.J. No.4049, 2008 ONCA 716, 269 O.A.C. 1, 61 C.R.(6th) 139, 236 C.C.C. (3d) 137, 93 ).R. (3d) 89, 2008 CarswellOnt 6024, 79 W.C.B.(2d) 62

[19] Supra 1 at para 82.

[20] Supra 1 from paras 85 to 88.

[21] R.v.Stone. [1999] 2 S.C.R. 290

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