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Issue 38.3


Not Criminally Responsible: Myths, Realities & Challenges
Mount Royal University, Department of Economics, Justice, and Policy Studies

In this article, our Guest Editor Dr. John Winterdyk takes us back to Babylon in a fascinating overview of not criminally responsible (NCR) within a context of this special issue of the Justice Report. Informed by articles on various themes related to NCR, from a national and international perspective, this special issue offers an engaging debate around the complex and controversial NCR designation. While the topic is too complex to be comprehensively explored in this publication, Winterdyk points out that despite its history and (legal) discourse there are still several fundamental misconceptions around the NCR designation not only in Canada but worldwide, as illustrated in several of the articles in this Special Issue of the Justice Report. Noting that NCR verdicts make up less than one-tenth of one percent of adult criminal court cases in Canada annually, Winterdyk queries the principle of burden of proof for a designation that cannot be fully defined or operationalized. Winterdyk expresses the need for further discourse and scholarly research to inform future directions and policy around NCR while broadening public awareness.

The Mental Incapacity Defence in International Criminal Justice: Some Observations in Light of the ICC Appeal Judgment in the Ongwen Case
Department of Criminal Law and Legal Philosophy, Institute for Criminal Law and Criminology, University of Bern (Bern, Switzerland)
Department of Public Law and International Law, University of Giessen & Department of Public Law, Max Planck Institute for the Study of Crime, Security and Law (Germany)

The International Criminal Court (ICC) is the first international criminal tribunal to explicitly codify the mental incapacity defence in its statute. The recent case against Dominic Ongwen, a former child soldier and high-ranking commander in the insurgent group “Lord’s Resistance Army,” offered ICC the first opportunity to define and apply the preconditions for a defence in practice. As this article shows, despite the novelty of this recent development, there is a pattern in how the international criminal tribunals have been treating the plausibility of mental health defences since WWII which extends to ICC. The article concludes by considering the implications of the Ongwen case for future ICC jurisprudence.

Temporary Non-Pathological Criminal Incapacity (TNPCI)—The Namibian Position
Deputy Director (Academic), Department of Social Sciences, Namibia University of Science and Technology

Upon its Independence in 1990, Namibia’s substantial criminal law was derived from South Africa’s CPA (i.e., SA’s Criminal Procedure Act 51 of 1977). The Act defines criminal incapacity in terms of psychological deficiencies pertaining to one’s cognitive and conative capacities, and a comorbid ‘mental illness or mental defect’. Since early 1980s the South African and Namibian courts gradually abandoned the statutory requirement of ‘mental illness or mental defect’ and developed what would become known as the temporary non-pathological criminal incapacity defence, accepting that any factor can impair criminal capacity. Over time however, the countries parted ways on the meaning of criminal incapacity. Whereas the South African Supreme Court of Appeal (SCA) made a U-turn on the defence, the Namibian Supreme Court held its course. The article discusses the merits of the Namibian position against the backdrop of the “affective revolution” in neuroscience and progress in research on intrapsychic restraints related to self-control.

Study on the Status of NCRMD (Not Criminally Responsible on Account of Mental Disorder): The Insanity Defence in India
Dean, School of Law, Forensic Justice & Policy Studies, National Forensic Sciences University, (Gandhinagar, India)
Teaching & Research Assistant, School of Law, Forensic Justice & Policy Studies, National Forensic Sciences University, (Gandhinagar, India)

While the success with which defences under Section 84 of the Indian Penal Code – NCRMD provision – have been used is not easily referenced due to a lack of investigative studies, only 17.6% of such cases between 2000 and 2009 met the stringent requirements laid out in the IPC. Pokhariyal and Dubey here point to various reasons, such as underdevelopment in the field of forensic psychiatry in India; the stringent requirements around the burden of proof, which prevents some of the accused and counsel from pleading NCRMD; the lack of a definition for “unsoundness of mind” is further complicated by the frequent use of “insanity” as a synonym in the courts. The authors conclude by advocating for definitional clarifications to ensure more consistency in interpretation and application, although this should aim to make the provision clearer, as making it stricter would work against the goal of fostering the NCRMD defence.

Not Criminally Responsible in Norway—a Brief Overview of Section 20 and July 22
UIT The Arctic University of Norway, Faculty of Law

Where most nations establish criminal liability using a mixed model, Section 20 of the Norwegian penal code defines a medical model. Amendments over time completely changed the criterion for determining responsibility in Norway. The last to go, the ‘psychotic’ criterion, was questioned when two external medical experts came up with different diagnoses (i.e., psychotic and non-psychotic) for the accused in the two right-wing terrorist attacks in Oslo and Utøya on 22 July 2011. The subsequent amendment (2020) replaced ’psychotic‘ with ’severely deviant state of mind’, which leaves aspects of the Norwegian criminal justice system’s ‘medical model’ intact while expanding the possibility of criminal liability but widens interpretation/discretion. Knust points out an associated risk regarding the Norwegian principle of legal certainty (i.e., accessibility) and the strict separation (i.e., the limits) of the legislative and judicial power.

Key lessons learned about Canadian forensic mental health service users:
A focus on women

(a) Department of Psychiatry, University of British Columbia (Vancouver); (b) BC Mental Health and Substance Use Services (Vancouver); (c) School of Social Work and Criminology, Université Laval (Québec City) (d) Forensic Research Unit, University of Ottawa Institute of Mental Health Research (Ottawa); (e) Department of Psychiatry & Addictions and School of Criminology, Université de Montréal; (f) Research & Academics, Institut National de Psychiatrie légale Philippe-Pinel (Montréal); (g) Complex Care and Recovery Program, Forensic Division, Centre for Addiction and Mental Health (CAMH); (h) Department of Psychiatry, Temerty Faculty of Medicine, University of Toronto.

Not Criminally Responsible on Account of Mental Disorder (NCRMD) findings in Canada are rare. Women comprise just 16% of the NCRMD population but warrant specific attention given their unique and complex needs. As such, they are a difficult-to-serve and oft-neglected population, although the literature on NCRMD in Canada reveals notable similarities and differences between women and men. The authors discuss three central areas where knowledge of gender differences among male and female forensic service users is relatively well documented and could inform efforts to optimize clinical services and mental health policies concerning justice-involved women. The authors conclude with milestones achieved and an overview of the clinical implications for gender-sensitive assessment and treatment frameworks.

Canada Lacks Empirical Data on NCRs: A Special Focus on Assessment and Treatment for Those Found Not Criminally Responsible
Alberta Hospital Edmonton, Alberta Health Services, (University of Alberta) – Psychiatry & Psychology

According to Haag’s exploration of the complexities of risk assessment and treatment, there are more questions than answers about the NCR accused in Canada. Under the Criminal Code (CCC), a Review Board or Court’s paramount concern is determining whether the NCR accused poses a “significant threat” to public safety. As the CCC makes no presumption of dangerousness, rulings of absolute discharge or detention order / conditional discharge must be based on solid evidence, but the CCC offers only cursory definitions of risk levels (e.g., minuscule risk or significant risk and trivial or grave harm). Decision makers such as jurors and/or judges are thus forced to make several operational definitions, a process rendered difficult by the shortcomings of current risk-assessment instruments. As a remedial measure, Haag argues for ensuring forensic psychiatry programs in Canada employ systematic empirical research among the NCR population.

Mental Health Courts in Australia: Challenges and Key Issues
PhD Candidate
School of Criminology and Criminal Justice, Griffith Criminology Institute, Griffith University (Queensland, Australia)

This article explores Queensland Australia’s approach to mental health and criminality for persons found not guilty by way of mental illness. In Queensland, people with disabilities, including mental health, are overrepresented in the justice system. The state of an accused’s mental health (at the time of an offence) is determined by Mental Health Acts and Mental Health Courts established in 2002. The Queensland model is unique in operating at the Supreme Court level. If the court deems an accused was mentally impaired, it diverts them away from the criminal justice system and into appropriate services. Challenges include public perceptions about lack of accountability, debates over length of confinement, and the need for multidisciplinary approaches, individualized responses and relevant facilities. Little research has been conducted into the effectiveness of the Mental Health Courts, making it difficult to establish best practices. While success stories are promising and include reduced recidivism in some cases, further evaluation is required.

Not Criminally Responsible on Account of Mental Disorder (NCRMD)—A Student Reflection
BA Criminal Justice (Honours), Mount Royal University (Calgary); MA (2023- ), School of Criminology and Criminal Justice, Arizona State University

Pandila opens up a timely discussion characterizing NCRMD as a long-standing defence plagued by misperceptions in the eyes of victims, lawyers, the accused’s family, the media and, ultimately, the public. For example, the wrong perception that most NCRMD defences are related to a violent crime. Throwing conventional understandings of criminality into question and highlighting a need for improved public education about criminal justice, Pandila is calling for research and education aimed at NCRMD reform.

Canadian Journal of Criminology and Criminal Justice (CJCCJ) / Revue canadienne de criminologie et de justice pénale.
Call for Applications – Book Reviews Editor (English books). Contact

Opinions expressed in this publication do not necessarily reflect the Association’s views, but are included to encourage reflection and action on the criminal justice system throughout Canada.

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