Article Figures & Data
Figures
Figure 1. The NCRMD analysis in Canada. Traditionally conceived of as having two branches (nature and quality of act or omission and knowledge of wrongfulness), the evolving case law substantiates a series of distinct pathways to NCRMD, including those wherein both legal and moral wrongfulness are present but cannot be applied consciously because of compulsion and symptom burden. 1 = nature and quality; 2 = legal wrongfulness; 3a = distorted/absent knowledge of moral wrongfulness because of mental disorder; 3b = lack of ability to consciously or rationally apply knowledge or moral wrongfulness because of mental disorder.
Tables
- Table 1
The NCRMD Test Branches as Accepted in Canadian Case Law and Forensic Psychiatric Practice
Test Branch Nature and Quality Wrongfulness Standard The defense involves the accused’s ability to link action to consequence; psychiatric symptoms must render the accused unable to appreciate the nature or quality of the act or omission.3 The defense involves the accused’s knowledge of wrongfulness, which has been clarified as meaning both legally and morally wrong4,5; an accused must lack the capacity to know right and wrong in an abstract sense or lack the ability to apply the knowledge of wrongfulness in a rational way to the criminal act in question. Example If, while in a state of psychosis, an accused threw a newborn off of a balcony driven by the delusional belief that the baby was really an angel requiring help learning to fly, an NCRMD defense may be available. If, during a manic episode, an accused shoots and kills a colleague based on the delusional belief that the colleague was going to imminently kill him, an NCRMD defense may be available. Decision/Law Holding/Statute s. 16 of the Criminal Code (as amended by S.C. 1991, c.43, s.2) 16. (1) 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.1 M’Naughten Rules (1843) An accused is culpable unless at the material time of the crime the individual was in a state of mind such that the person did not know what the person was doing when committing the act or that the person knew what the person was doing but did not know that it was wrong.2 R v. Chaulk (1990) Wrongfulness means either “legal or moral” wrongfulness; broadening of cognitive test to include moral wrongfulness4 R v. Ratti (1991) Causal delusions do not equate to NCRMD; the accused is culpable if the person is capable of knowing the act, in its circumstances, would have been “morally condemned by reasonable members of society”; symptoms of a mental disorder that motivate the accused do not equate to a finding of NCRMD (Ref. 12, p 80). R v. Oommen (1994) Articulated the notion of rational perception and the need for an accused to be able to apply knowledge of wrongfulness in the circumstance, in addition to the intellectual ability to know right from wrong in an abstract sense5 R v. Bharwani (2025) (dissent)a Endorsed the standard set in Oommen; an accused is NCRMD if compulsion caused by a mental disorder prevented rational and conscious application of moral knowledge of wrongfulness at the time of the crime (including knowledge that society would view the criminal act as wrong)13 a The majority in Bharwani did not address the question of NCRMD, and the Court’s commentary was thus limited to the nonbinding but persuasive interpretation of the dissent.
- Table 3
Legal Interpretation of the Fitness Test and the Moral Wrongfulness Branch of the NCRMD Test as per the Supreme Court of Canada’s Decision in R v. Bharwani
Legal Interpretation Majority (Bharwani 2025) Minority (Bharwani 2025) Fitness to stand trial (competency) A unanimous majority (9-0) upheld prior appeals court rulings in Bharwani17 and Taylor34 as to the proper interpretation of the fitness test. In general, the decision endorsed a fuller interpretation of the statute and the Ontario Court of Appeal’s decision, confirming the importance of “meaningful participation” and the nature of appropriate communication with counsel. In summary:At the time of a decision related to a defense, an accused must not be overwhelmed by mental disordered symptomsAccused must have a reality-based understanding of the nature and object of the proceedings and at the time of a decision related to a defenseAn accused must be able to intelligibly communicate decisions to the court or counselFitness may fluctuate, and nonetheless, the accused can be overall fit (i.e., as per the court, not every fluctuation necessarily demands a new fitness inquiry)There is one fitness test, regardless of whether the accused is self-represented or not NA NCRMD (insanity) Declined to offer opinion or obiter dictum Reinterpreted the moral wrongfulness test by endorsing and elaborating on the standard set in R v. Oommen
