Thursday, September 12, 2013
Steven Penney (University of Alberta - Faculty of Law) has posted Irresistible Impulse and the Mental Disorder Defence: The Criminal Code, the Charter, and the Neuroscience of Control (Criminal Law Quarterly, vol. 30(2), 2013, Forthcoming) on SSRN. Here is the abstract:
As in many other jurisdictions, Canada’s "mental disorder" defense rests on the uncontroversial premise that people incapable of choosing whether to do wrong do not deserve punishment. Most defendants benefiting from this defense suffered from delusions that prevented them from understanding either the physical consequences or moral wrongfulness of their actions. There is little debate that these people should be found "not criminally responsible" (NCR). What is less clear (and what has long divided commentators, courts, and legislators) is whether the defense can excuse defendants who had a general ability to understand consequences and wrongfulness, but suffered from a mental disorder that rendered them incapable of resisting an impulse to commit the offense.
To answer this question, I first review the jurisprudence on impulse control, noting that the cases allow more room for irresistible impulse than is commonly understood. Second, I argue that by deeming the concepts of "voluntariness" and "moral voluntariness" to be principles of fundamental justice under section 7 of the Charter, the Supreme Court of Canada has opened up even more space for the defense. Third, I examine what science and law teach us about the existence and diagnosibility of irresistible impulses, concluding that the phenomenon is very likely real and that recognizing the defense is likely to generate few undeserved NCR dispositions. Lastly, I explore how the defense should be defined and limited, arguing that it should succeed only when it is proved that the accused experienced a total incapacity to control conduct in the circumstances.