Simon's Megalomaniacal Legal Resources

Criminal - NCR - Test [CCC 16(1)]

. R. v. Slade

In R. v. Slade (Ont CA, 2026) the Ontario Court of Appeal dismissed a criminal Crown appeal, here brought against findings of that the respondent was "not criminally responsible (“NCR”) by reason of mental disorder on one count of first-degree murder, one count of indecent interference with human remains, and two counts of assault causing bodily harm".

Here the court sets out the test under CCC 16 for 'not criminally responsible' (NCR), particularly the element of "capacity to know that his actions were wrong":

[16] Section 16 of the Criminal Code mandates a two-part test where a party seeks to raise the defence of not criminally responsible by virtue of mental disorder. First, the party raising the defence must show that the accused suffered from a mental disorder at the time of the act or omission. Second, the party raising the defence must show that the mental disorder rendered the accused incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong. Every person is presumed not to suffer from a mental disorder exempting them from criminal responsibility and the burden of proof is on the party seeking to prove the contrary on a balance of probabilities: s. 16(2), (3) of the Criminal Code.

[17] The Crown may appeal from an NCR verdict only on a question of law: s. 676(1)(a) of the Criminal Code.

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b. The Respondent’s Capacity to Know Whether his Actions Were Morally Wrong

[22] We also reject the Crown’s submission that the trial judge failed to consider whether the respondent retained the capacity to know that his actions were wrong according to society’s moral standards, jumping to a conclusion on moral reasoning capacity without analysis.

[23] The trial judge was well aware of the two-part test to be met for the respondent’s defence of NCR by virtue of mental disorder to succeed. He set out the test several times and stated both the Crown and defence positions accurately.

[24] He painstakingly reviewed the evidence, including evidence relevant to the respondent’s moral reasoning capacity. He accepted that the respondent had minimized his conflict with his family but found the Crown’s theory that his actions were motived by this real-life conflict to be improbable in the circumstances.

[25] The trial judge also noted the existence of conflicting evidence and inconsistencies in the respondent’s descriptions of events, yet nevertheless found the facts required to meet the test under s. 16 of the Criminal Code. While he did not make findings of fact in relation to each contradiction, he was not required to do so. He adequately resolved the factual issues germane to the test to be applied.

[26] The trial judge ultimately concluded as follows, demonstrating a thorough understanding of all of the evidence and his task:

Accordingly, upon consideration of all of the evidence I find that [the respondent] not only suffered from a major mental illness at the time of his offences, the murder and the assaults, that the illness caused him to have command hallucinations coming him to kill [his brother-in-law]. While he appreciated that it was wrong in law, he felt that he was saving society by preventing World War III. Dr. Iosif in her evidence agreed that if the court came to the conclusion that [the respondent] did experience such command hallucinations as he claims, that would result in him not appreciating the moral wrongfulness of his actions. Clearly Dr. Iosif is of the view that the Court should not accept those claims.

While the concerns expressed by Dr. Iosif in her report and evidence about the credibility of [the respondent]’s claims are notes and seriously considered. I am though, in the end persuaded on a balance of probabilities that the section 16 Not Criminally Responsible criteria have been met.

The assaults on [the respondent’s mother and sister] occurred at or close in time to the murder of [his brother-in-law]. I accept the evidence of Dr. Gojer that the anger [the respondent] felt was part of the delusion and directly related to his major mental illness. I accept Dr. Gojer’s opinion that [the respondent] suffered from a major mental illness both before and during the offences. The illness continues to exist. The use of cannabis made the illness much worse. [Emphasis added.]

[27] The focus in the inquiry into moral wrongfulness is whether the respondent was deprived, by reason of mental disorder, of the capacity to know that the particular act is right or wrong, having regard to the everyday standards of reasonable people: R. v. Oommen, 1994 CanLII 101 (SCC), [1994] 2 S.C.R. 507, at pp. 516-20; R. v. Campione, 2015 ONCA 67, 17 C.R. (7th) 379, at para. 30. The trial judge was properly focused on this point. He expressly found that the respondent was suffering from a major mental illness that caused him to experience command delusions at the time of the offences, including the assaults on his mother and sister, and concluded that, because of that finding, the respondent would be unable to appreciate the moral wrongfulness of his actions. We see no legal error in this analysis.

. 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.

....

[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.]