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The Test


The inquiry under section 16(1) of the Criminal Code asks whether the accused lacks the capacity to rationally decide whether the act is right or wrong, and hence to make a rational choice about whether to do it or not. This may stem from a variety of mental disfunctions, including delusions and disordered thinking that deprives the accused of the ability to rationally evaluate what he is doing: R v Richmond, 2016 ONCA 134 at paras 51-53 


The concept of “wrong” embodied in s. 16(1) contemplates knowledge, in spite of a delusion, that an act was morally – not legally – wrong in the circumstances, according to the ordinary moral standard of reasonable members of the community: Richmond at para 54



Trier of Fact's Evaluation of Expert Evidence


The trier of fact is not obliged to accept an expert's uncontradicted opinion that there is a strong circumstantial case for an NCR finding.  Rather, the judge/jury is entitled to assess the probative value of the expert evidence, examine its factual foundations, and accord it less weight if it was not based on facts proven at trial, or where it is based on factual assumptions with which the trier of fact disagrees: R v Richmond, 2016 ONCA 134 at para 57


On appeal, a reviewing court must consider whether there was a rational basis for rejecting expert opinion evidence that an accused is NCR.  This may arise if there is some “discernible flaw” in the expert’s reasoning or “because the opinion was formulated on too fragile a factual basis or because the opinion conflicts with inferences one might logically draw from other evidence”: Richmond at para 58 (citations ommitted)


However, there is a real danger that juries can be unduly skeptical of a psychiatric “defence”, which is “often perceived as easy to fabricate and difficult to rebut”.  For this reason, “the weight of judicial experience must be brought to bear on the assessment of the reasonableness, as a matter of law, of the conclusion reached by the jury” and “the appreciation of the import of expert psychiatric evidence must be a realistic and reasonable one”: Richmond at para 59 (citations ommitted)



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