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Criminal - NCR - Test [CCC 16(1)]. R. v. Pereira
In R. v. Pereira (Ont CA, 2025) the Ontario Court of Appeal dismissed a criminal appeal, here in a murder trial where the "primary issue was whether the appellant was not criminally responsible (“NCR”)", but the defendant was found guilty (and thus criminally responsible).
Here the court considered the test for NCR:[14] The NCR defence, as set out in s. 16(1) of the Criminal Code, R.S.C. 1985, c. C-46, provides: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. [15] Qualifying for this defence can involve two different pathways. In every case, the accused must establish that they suffer from a mental disorder or a “disease of the mind”. Then, the accused must establish either that the accused’s mental disorder or disease of the mind rendered them incapable of appreciating the nature and quality of the act/omission (the “first branch”); or that the accused’s mental disorder rendered them incapable of knowing that the act/omission was wrong (the “second branch”): see R. v. Capano, 2014 ONCA 599, 324 O.A.C. 250, at paras. 53-56.
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[16] The Crown, with a minor caveat, conceded that the appellant satisfied the first branch of the NCR threshold, and the trial judge found the evidence that the appellant suffered from a disease of the mind to be “undeniable”.
[17] With respect to the two different branches of the second part of the test, in this case, the defence pursued the second branch in arguing that the appellant qualified for the NCR designation. Therefore, in addition to establishing that the appellant suffered from a mental disorder, it was the appellant’s burden to establish, on a balance of probabilities, that he did not understand that killing the victim was “morally wrong.”
[18] The parties agree on the case law governing the second branch of the NCR threshold. In R. v. Oommen, 1994 CanLII 101 (SCC), [1994] 2 SCR 507, at p. 517, the Supreme Court explained that the focus must be on the accused’s particular capacity to understand that their “act was wrong at the time of committing the act.” The court held that the focus is on the accused’s particular capacity to make a rational choice, a capacity which could be interfered with by their delusions. The court held, at pp. 519-20:A person may have adequate intelligence to know that the commission of a certain act, e.g., murder, is wrong but at the time of the commission of the act in question he may be so obsessed with delusions or subject to impulses which are the product of insanity that he is incapable of bringing his mind to bear on what he is doing and the considerations which to normal people would make the act right or wrong. [Emphasis in original.]
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