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No Charter Violation in NCR Plea
Published in the April 2010 issue of Litigation Notes - View Article
The Court of Appeal for Ontario finds that the Charter rights of two accused were not violated when they consented to a finding of Not Criminally Responsible on Account of Mental Disorder.
The Court of Appeal for Ontario recently heard appeals by accuseds Dennis Quenneville and Ian Stirling, both of whom were found not criminally responsible on account of mental disorder (“NCRMD”) for the offences for which they were charged. In each case, the accused was found fit to stand trial and then entered a plea of NCRMD. In each case the plea was entered with the accused’s consent on the advice of counsel and with the agreement of the Crown.
Both accuseds then appealed this finding, arguing that their rights under section 7 and 15 of the Canadian Charter of Rights and Freedoms had been violated because the court had failed to undertake an inquiry to ensure that their consent to an NCRMD finding was voluntary and informed, as is done before a plea of guilty is entered pursuant to section 606(1.1) of the Criminal Code.
The Court of Appeal rejected the argument, referring to the case of Winko v. British Columbia (Forensic Psychiatric Institute) where Part XX.1 of the Criminal Code was considered and found to provide a comprehensive administrative and adjudicatory structure which does not violate the principles of fundamental justice under section 7 of the Charter. Although the Court in Winko did not specifically consider the pre-verdict provisions of Part XX.1, the Supreme Court of Canada nevertheless concluded that Part XX.1 does not deprive the mentally ill accused of their liberty or security of the person in a manner contrary to the principles of fundamental justice.
The Court found that the fact that an individual consenting to an NCRMD verdict must be fit to stand trial, ensures that the person is able to understand the nature and object of the proceedings and their possible consequences, without the need to resort to an inquiry like that of section 606(1.1). Furthermore, the finding of NCRMD does not turn on the consent of the accused, but on the Court being required to conclude, on a balance of probabilities that the criteria of the Criminal Code have been met. In this case there was sufficient evidence before the summary conviction judge to enable the judge to conclude that each of Mr. Quenneville and Mr. Stirling were NCRMD at the time that they committed the offences.
R. v. Quenneville, 2010 ONCA 223