MORE THAN MEETS THE EYE: A CASE STUDY OF THE CRIMINAL LAW CONVENTION ON TRIALING INDIVIDUALS WITH NEUROLOGICAL IMPAIRMENTS IN CANADIAN JURISPRUDENCE
More Than Meets the Eye: A Case Study of the Criminal Law Convention on Trialing Individuals with Neurological Impairments in Canadian Jurisprudence
Recent discoveries in the field of neuroscientific research have made great progress towards providing a more complete picture of human behavior. However, the very concept of legal responsibility in Canada is derived from a model of human behavior that neuroscience that does not share, which introduces a grey area for individuals whose neurological characteristics deviate from the norm. This study seeks to analyze the current court procedures set in place in Canada to accommodate individuals with mental impairments that have committed severe crimes and to investigate technological integration within trials involving such cases, which ultimately aid in reducing the disparities between neuroscientific development and the law. By analyzing past cases involving individuals with neurological disorders “those who were deemed not criminally responsible or ‘NCR’”, common sources of evidence used to evaluate culpability were found. A thorough analysis demonstrated that there has been significant diversity of judicial opinions on the outcomes of NCRMD cases, and no significant technological integration has been implemented in the court of law for use as evidence in the past 20 years. A second component of this study aims to uncover the preconceived perceptions of potential jury members towards such defendants to determine if Bill C-30 (the NCRMD Bill) established in 1992 is successful in de-stigmatizing mental illnesses. This study found that Canadian adults are divided on their outlook of individuals with neurological disorders who commit severe crimes.
Key words: Not Criminally Responsible (NCR), Canadian Law, neurological impairment, neurolaw, technology, mental disorder
A commonly accepted interpretation of the law, as a human institution, is that it acts as a system for governing human behavior. To avoid governmentally-administered consequences, one must refrain from certain actions that are declared socially deplorable. In other words, it is a means of controlling the behavior of individuals for the safety and order of society. It also common knowledge that the brain is the organ that governs an individual’s being, characterized by activity within his/her nervous system; Any physiological changes that may arise with this organ system will result in drastic impacts to one’s self, which includes major influences on behavior. It thus becomes evident that at their very core, law and neuroscience are intimately intertwined, and it is unfitting to assume that it is possible to implement a system of controlling societal behavior if the origin of the tendencies itself are ignored. Whilst there exists extensive research regarding how behavior can be altered by both macroscopic influences (such as trauma or benign/malignant growths) or microscopic ones (an unbalanced volume of neurotransmitters and/or neurochemicals, damage to neural pathways), the way in which such a situation would be taken into consideration in the court of law remains a highly controversial matter.
The “Criminal Lunatics Act” that was incorporated into British law in the year 1800 was adopted by Canada in 1892, whereby if an individual was deemed criminally insane, he or she would be automatically detained in prison. However, in 1991 a landmark Supreme Court decision in the case of R vs. Swain uncovered the conflict between the “Criminal Lunatics Act” and the Charter of Rights and Freedoms, which resulted in the creation of Bill C-30, currently known as the NCRMD (not criminally responsible on account of mental disorder – NCR for short) defense, to be implemented in 1992. For a person to be considered as “not criminally responsible” (NCR), it must be proven that they did not have the capacity to understand the nature of their actions, know right from wrong, or if they were able to control their behavior – In other words, it is a requisite assessment of mens rea (intention of wrong doing). The common law test of criminal liability is expressed in the Latin phrase actus reus non facit reum nisi mens sit rea, which translates to "the act is not culpable unless the mind is guilty" (OJEN, n.d.). In jurisdictions with due process, there must be both actus reus (the act of wrongdoing) and mens rea for a defendant to be guilty. Due to the significant uncertainty that comes along with assessing culpability, only 2 in every 1000 cases result in an NCR verdict. From those cases, charges of serious violence only account for 8.1% of overall NCR cases (Statistics Canada, 2012). The large difference between an individual designated NCR and any other offender is that under new legislation, the goal becomes rehabilitation of the NCR individual. Following court decision, the individual is managed by review boards, which are independent tribunals made up of at least five people, one of which must be a psychiatrist (The Canadian Bar Association, n.d.). The board can bestow varying degrees of privileges upon the individual, ranging from a conditional discharge to an absolute discharge. When given conditional discharge, individuals are allowed substantial freedom and access to the public, whilst an absolute discharge translates into freedom without supervision that is granted only when the board decides that the person does not pose a threat to society. In July of 2014, the Stephen Harper government altered the NCR legislation in Bill C54. The Not Criminally Responsible Reform Act implemented a “high risk” designation for those found NCR in cases of severe personal injury (NCRMD), which does not allow for leaving the hospital for up to three years between review board hearings. The latter was in response to the cases of Vince Li, who decapitated a fellow passenger on a bus in Manitoba in 2008, and Allan Schoenborn, who killed his three children in Merritt, B.C., the same year.
At first glance, the NCR system appears to be fully functioning; Recent statistics have demonstrated that three years following an initial NCR verdict, approximately 10% of individuals reoffend, which is in stark contrast to 40% recidivism from the general penal system in Canada. However, many opposition and mental health advocates, including the CPA (Canadian Psychiatric Association) disagree with the legislation – Especially the implication of Bill C54, which is believed to conflict with the Charter of Rights and Freedoms. Many fear that the new law will influence affected individuals to choose prison over rehabilitation, which would result in returning from prison untreated and much more likely to reoffend. Concerns have also been raised concerning the rise of more controversy by showing the dimensions of these complex illnesses and revealing the vulnerabilities of the patients, victims, and the mental health care system.
One of the main goals of the NCR Bill is to reduce the stigma surrounding mental illness and to encourage the re-integration of offenders into society, but the success of this law has yet to be proven – Especially considering the prejudice individuals continue to possess against individuals with neurological disorders. Therefore, although the NCR bill seems to have decreased the tendency to reoffend in the relatively small population of individuals who receive such a designation, whether Canadians have a changed outlook on how individuals with neurological disorders should be regarded in the court of law is questionable. It is commonly believed that the ambiguity surrounding the process of evaluating culpability has fostered negative feelings towards the NCR bill. Therefore, there is a chance that mending the major gap between neuroscientific understanding and court proceedings can aid in reducing the uncertainty, all whilst relieving some controversy.
The literature in the field of neurolaw is saturated, each taking a unique perspective on the topic. A thematic approach was taken to analyze each source. The case of Christopher Tiegreen is one that is commonly discussed when exploring the interface between neurological pathology and law. Tiegreen was a teenager when he sustained a brain injury that caused damage to the frontal lobe, and eventually awoke from a coma much more violent. In 2012 he was found attacking a woman, and at his trial a neuropsychologist for the defense testified that Tiegreen suffered brain impairment that directly influenced his actions, yet he was declared competent and guilty by the jury (Bottalico, 2011). This case demonstrated one of the many challenges that lawyers, judges, and defendants face when neuroscience and the law are combined, where an attempt to explain the brain/behavior can differ with how the jury determines culpability. The literature in the field of neurolaw poses the question of whether neurological disorders should be directly acknowledged in the court of law often. However, reports on this topic are informational rather than argumentative. Moreover, whilst there exists extensive research regarding how behavior can be altered through disorders affecting specific parts of the brain, the way in which such a situation should be taken into consideration in the court of law remains unexplored. A second gap exists in the interface between scientific knowledge and the role it plays in such cases, and how to mitigate such shortcomings.
Part XX.1 of the Canadian Criminal Code was enacted, in part, to reduce the stigma surrounding the mentally ill as well as to eliminate stereotypes and preconceived perceptions of those with neurological disorders (CBA, n.d.). After the re-evaluation of how to deal with such cases post-R. v. Swain, the court accepted that the mentally ill have been historically discriminated against (Penney et. al, 2013). In the case of R. v. Winko in 1999, Justice McLachlin wrote, “If society is to be protected on a long-term basis, it must address the cause of the offending behavior — the mental illness” (CanLII, 1999). In this context, there is no room for fear or blame, but rather an understanding of the harm done to victims, and an awareness that the accused does not fulfil the requisite mens rea. With these objectives and principles in mind, the Canadian Bar Association passed a resolution in 2011 calling on the federal, provincial, and territorial governments to “allocate sufficient resources to reduce the criminalization of mentally ill individuals” and “develop policies to enhance the lives of those suffering from mental illness to prevent them from encountering the criminal justice system.” (Crocker et. al, 2014). Therefore, although the obvious goal of Bill C30 is to ensure justice for individuals with neurological disorders, it is also an attempt at re-integrating said individuals into society via de-stigmatization. In total, there were 4,402 homicide offenders recorded from 1987 to 2012 in Canada. Among these, 163 individuals – or 4 per cent of all offenders – were seriously mentally ill and found NCR (Miladinovic et. al., 2015). In contrast to declining hospitalization rates, the rate of NCR homicide remained constant at about 6.5 cases per year (Criminally insane, 2005). It can thus be noted that the chance of being killed by a mentally ill stranger is exceedingly rare; Out of the 710-people killed by strangers over from 1987-2012, 15 were killed by mentally unwell persons (Simpson et al., 2017). More than half of the people discharged by Review Boards, either conditionally or absolutely, did not get re-hospitalized nor had encounters with the judicial system after a three-year observation period. Those who did need help were more likely to end up back in the health system than in the judicial system (Crocker, 2015).
Many esteemed researchers in the field of neurolaw who study how regulations like NCR affect the population discuss a “slippery slope” that exists when questions of diminished responsibility arise. This becomes more evident when mental illness enters the discussion. As such, the question of whether a defendant had the requisite mens rea becomes a difficult one to answer. Michael S. Gazzaniga, distinguished professor of psychological and brain sciences at Dartmouth College, discusses how in the law’s view of persons “human beings are, first and foremost, practical reasoners” (Gazzaniga, 2001). This amounts to saying that people act rationally, and this idea is behind all the legal system’s ideas about human behavior. Gazzaniga also shares how the current standards for diminished responsibility “refer to breakdowns in one of the steps of the behavior generation process”; This includes the accused being unable to exercise free will (the irresistible impulse test) or he/she was not aware that their behavior was wrong (the McNaghten rule) (Gazzaniga, 2001). In contrast, Stephen J. Morse, a professor of law and psychiatry at the University of Pennsylvania, discusses the problems that arise in defining what constitutes a mental disorder that merits a different treatment when considering the fate of a defendant, but agrees that overall, there must be a different way to approach such cases. Morse argues that “brains don’t commit crimes; people do” (Morse, 2011). What this implies is that even the latest neuroscientific research and imaging cannot answer questions about responsibility and competence. Whilst both these authors analyze the process of trialing a defendant with a neurological disorder through questioning what the court currently defines as worthy of a lesser or alternate sentence, they both fail to use case-based evidence to demonstrate how these individuals are dealt with in trial.
Kevin Davis, journalist and former crime reporter, talks about how lawyers attempt to “humanize” defendants by attempting to find a neurological disorder to attribute the crime to (Davis, 2012). In “Brain Trials: Neuroscience in the Courtroom”, Davis cites the work of professor of law and biology at Vanderbilt University, Owen Jones, to illustrate the difficulty of relying on brain scans to determine culpability. Jones believes that “once you start going down this path that there’s this quirk in the brain that makes me not responsible for my actions, that makes people “understandably concerned” and that brain scans and evidence of trauma must “be weighed with other evidence” (Jones, 2011). Davis claims that lawyers and juries do not know how people try to control their impulses, which leaves a lot of space for ambiguity in interpreting the law. The issue with this argument is that the outcome possibilities that are considered by the author are binary; The defendant is either guilty, or not guilty. However, there is a spectrum for culpability, and stories such as that of Christopher Tiegreen fall somewhere in the middle, which merits further investigation. Davis does, however, consider that the “best illustration of where law and neuroscience need to work together” is not to explain or excuse criminal behavior, but to evaluate each defendant and customize a plan that serves their mental health needs as well as the need to keep the public safe (Davis, 2012). As Tiegreen’s mother had mentioned, “it’s not that Christopher is cruel, it’s that he can’t control himself like me or you”; Scientists such as Amane Tateno, M.D., can say with certainty that intentions and behaviors are controlled by specific areas of the brain (some areas being more certain than others). Such studies had concluded that when assessing the aggressive behavior in 89 patients with traumatic brain injury and 26 patients with multiple trauma but without TBI using a quantitative scale (the Overt Aggression Scale), aggressive behavior was found in 33.7% of TBI patients and 11.5% of patients without TBI during the first 6 months after injury (Tateno et tal, 2003). Aggressive behavior was strongly associated with the presence of frontal lobe lesions, poor premorbid social functioning, and a history of alcohol and substance abuse. It thus follows that the mens rea is not present, and the trial must be modified in some way to ensure utmost fairness.
In terms of the scientific perspective on neurolaw, Dean Mobbs discusses studies of the prefrontal cortex in anti-social and violent populations. His research had found that the human prefrontal cortex is what makes us rational, intellectual, and moral entities. Other similar studies on patients with focal frontal lobe injuries support this conclusion; The study found that even an 11% decrease in prefrontal cortex grey matter, which can be caused by most neurodegenerative disorder or injury, is associated with severe aggression and pathological lying (Mobbs et tal, 2007). Although this scientific report provides great insight on how damage to the prefrontal cortex has direct effects on the personality of an individual, it does not consider other areas of the brain that may increase propensity toward behaviors deemed criminal or anti-social. It has long been known that injury to the frontal lobe, including the amygdala, also results in blunted emotional responses (Fox et. al., 2013). However, the way in which neuroscientific background of prefrontal cortex injuries is implemented in the court of law is left unexplained. Neuroscientist Jyotpal Singh discusses culpability in the face of the law, and how even “a minor alteration in a chemical in the brain can drastically alter personality and behavior” (Singh, 2008). Singh then proceeds to question the basic assumption of the law that people are “conscious, intentional, and rational actors that can choose how [they] act” (Singh, 2008). This article provides the application of the neuroscientific background provided by the work of Mobbs et tal within the court of law.
In a journal article that questions whether brain scanners can detect the intentions of criminals, Daniel Pallares-Dominguez and Elsa Gonzalez-Esteban (esteemed professors of sociology at Universitat Jaume I) make use of case studies to describe the shortcomings of neuroscience (Pallares-Dominguez, Gonzalez Esteban, 2016). They use the case of Terry Harrington, a 17-year-old American minor spent 25 years in prison for a murder that he did not commit. According to the article, the motive for Harrington’s release was the acceptance of “Brain Fingerprinting” as proof of innocence. This technique uses an EEG that measure’s one’s “event-related potential”; It tests the recognition of a stimulus in comparison with the context of a crime. In Harrington v. State, the professional who was representing the defendant presented a report to the court that showed that when Harrington was presented with stimuli related to the alibi, it coincided at a rate of more than 99% (Pallares-Dominguez, Gonzalez Esteban, 2016). This means that Harrington’s alibi was true, and he was not responsible for the crime. The journal article discusses other cases in which such a technology was utilized, and proceeds to consider the ethical implications of neurolaw and Brain Fingerprinting. In stark contrast to this, Matthew B. Crawford, researcher at the University of Virginia, discusses conceptual problems hovering the interpretation of brain scans as pictures of mentation (Crawford, 2008). He argues that there is often an overextension of brain scans to domains where they have little explanatory power. However, the author does not dismiss all uses of neuroscientific technology, he merely cautions others about the overuse of scans when unfitting.
A journal article written by Paul M. Kaufmann, neuropsychologist and attorney, discusses the role of clinical neuropsychologists who engage in forensic consulting activities, especially when the defendant possesses a brain injury. Kaufmann explains how courts must evaluate expert qualifications, and questions the relevance of expert opinions to the dispute. Moreover, he discusses cases in which expert opinions were wrongfully excluded, such as in the case of Baxter v. Temple, and wrongfully admitted, such as in the case of John Richmond v. Henry Bennett (Kaufmann, 2013). The weighting of the words of these experts must be assessed to ensure that the case does not boil down to the word of one expert against the word of another. Furthermore, Neil Krishan Aggarwal, a member of the Department of Psychiatry at Columbia University, talks about the emerging field of neuro-ethics and its relation to neurolaw. Aggarwal introduce the terms “neuro-essentialism”, defined as the notion that the brain reflects brain function, “neuro-realism”, which is functional neuroimaging that accurately reflects brain function, and “neuro-exceptionalism”, or the belief that neuroscience and neurotechnology pose new ethical challenges (Aggarwal, 2013). The article discusses the clinical assessment challenges presented by patients with traumatic brain injuries in court, and focuses on providing an ethical analysis on the emerging use of neuroimaging technologies in trial. However, it does not acknowledge the process of trialing an individual with a neurological disorder in court.
Through looking at previous research done on the topic of how neurological disorders influence the behaviors of individuals, combined with how such scientific proof influences the court of law, we begin to discover whether these individuals are receiving a fair trial. However, there has been inadequate research on the interface of both the neuroscientific background of neurological disorders and the Canadian court of law. A report discussing criminals with neurodegenerative diseases written by Stephen Morse at Northwestern University pointed out that the cases in which evidently ill individuals are declared competent in the justice system are becoming more common (Morse, 2011). When one analyzes the current binary system of guilt or innocence within the law, it becomes evident that such a model does not account for those with neurological disorders.
I chose a mixed research method to combine different perspectives, ranging from the experiences of defendants and lawyers, to the opinions of Canadian Adults. More specifically, this study analyzed court cases involving defendants with neurological impairments using the method of case study research. I supplemented the latter through interviewing a Canadian board-certified criminal lawyer, and gathering quantitative data that reflect the opinions of Canadian adults using a survey.
Case study research is a qualitative method of providing an understanding of complex or abstract issues, and adds strength to what is already known through previous research. This methodology emphasizes detailed contextual analysis of a limited number of events and their relationships. Using this method, one can examine contemporary phenomena and specific issues to provide a basis for the application or extension of ideas. According to Creswell, in case studies the “researcher develops an in-depth analysis of a case, often a program, event, activity, process, or one or more individuals” and they are bound by time. This oftentimes involves the development of themes into patterns or theories, with the overall intention of exploring a process/issue. In terms of the data collection procedures, Creswell states that the sample size “depends on the qualitative design being used”, and that case studies should include around five cases. This ensures that following a “detailed description of the setting or individuals”, there is analysis of a fair amount of data for themes or issues (Creswell, 2000). When discussing the validity of qualitative data, a great concern is that the researcher develops a procedure that does not “take advantage of the richness of the qualitative findings” which happens when the data “lacks rigor” (Creswell, 2000).
Cases were found using the Canadian Legal Information Institute, which is a database for cases involving diverse fields in law. Eight cases were selected, each involving a neurologically impaired individual, and from this, certain pieces of information were sought after: The nature of the crime, the neurological impairment that resulted in an NCR designation, and whether technological intervention occurred. With this information, a list of patterns and observations were compiled. Furthermore, using a survey, a secondary component of Bill C30 was tested – Whether the law has influenced the perspective of potential Canadian jury members. Within this survey, data was compiled from 150 adults in Canada (over the age of 18) to understand the way in which people perceive the NCR bill. Finally, a semi-structured interview was conducted with a Canadian board-certified criminal lawyer. Both the questions of the survey and the validity of the findings were evaluated with the help of this interview, in addition to discussing technology in the law. Through utilizing diverse sources of data and analyzing NCR through various perspectives, a more holistic view of the trial process for individuals with neurological disorders is found.
For the first component of this study, eight cases involving NCR designated individuals in Canada were found using three sets of criteria; The trial had taken place after the year 2000, they involved individuals from different provinces, and it was not their first time in the justice system. The latter criterion is to ensure that it is not a first-time offense, and thus no special leniency is provided. Through recording specific pieces of information, including the reason for being given NCR designation and the type of evidence used, patterns can be determined.
In a secondary segment of this study, 150 adults over the age of 18 that are citizens of Canada were surveyed, and the survey asked a series of questions that evaluated the persons comfort with deviating from the court process that would otherwise be provided for a neurotypical individual. An internal review board at my school had approved the survey before distribution. Likert scale style questions were mostly asked, whereby 1 signified that the individual strongly disagrees with the statement, and 5 signified that the individual strongly agrees with the statement. The participants were told that the survey is both anonymous and confidential, in an effort to receive honest responses. The goal of the survey was to view the preconceived perceptions of potential jury members that review the cases shown in the table above. The questions asked and the distribution of answers are shown through the graphs below:
In a survey of Canadian adults, 42.3% disagree that “all individuals are currently treated fairly in the court of law”, whilst almost 29%, close to a third, believe that people are widely treated fairly. Moreover, 76.1% of people believe that the procedure in the court of law should be the same for everyone, which contrasts the responses towards a question later in the survey that asked under which circumstances individuals would be comfortable with deviation from standard court procedures, where 59.7% of people answered, “all of the above”. The contradictory nature of the latter two questions can be attributed to either a moral inclination to accommodate others when given a specific choice, or because people simply don’t know the grounds for culpability that merit designations like NCR. This can be further confirmed by the fact that the “all of the above” option included the alteration of trials on account of physical disability, which is not an impairment that affects the requisite mens rea. Regardless, 31% of individuals are not comfortable with any deviation from standard court procedures whatsoever, which means that a significant portion of jury members may not agree with the current NCR mandated accommodations set in place. The survey also uncovered that 78.4% of individuals are comfortable with the use of biological information as forensic evidence, and that 33.1% of individuals are comfortable with the use of experimental technology to evaluate culpability. For this question, 46.9% of people were undecided and responded a 3 on the Likert scale, which means that there is an opportunity for progress to teach others about the need for technological intervention. Moreover, 69.2% of individuals somewhat believe that if an individual with a mental impairment commits a crime, he/she should be treated as any other defendant in the justice system, whilst only 10% of individuals feel it is unjustifiable for an individual with a neurological disorder to go to a mental health facility for a crime that would otherwise result in a prison sentence. Once again, the latter two are contradictory responses that can also be attributed to an altruistic bias; People may not reflect their true opinions by simply choosing the more accommodating option. The contradictory responses can also be partially due to the varying degrees of specificity of the questions posed, or because of a lack of knowledge on the topic. Many people also chose 3 on the Likert scale for various questions, which adds an element of ambiguity and space for development.
The results of the survey were largely inconclusive; Responses were often contradictory, and the way in which Canadian adults perceive criminal cases involving individuals with neurological disorders cannot be concluded with certainty. Regardless, the consensus seems to be divided; Whilst some believe that it is justified to provide an alternate outcome for crimes that would otherwise result in incarceration, many others maintain a preconceived perception about mental illness and the way it should be accommodated in society. Especially considering that the individuals of the general Canadian adult population are mandated to serve jury duty and contribute to the fate of those undergoing trial. A jury is not required to accept an expert opinion that there is a "strong circumstantial case for an NCR finding", and a jury can accept or reject the evidence in the "same manner as any other evidence" (Pickersgill, 2011). Furthermore, the jury can accord less weight to the opinion if it is not based on proven facts or were based on assumptions (R. v. Richmond, 2016). As such, it becomes evident that the opinion of the public not only influences the perception of individuals with neurological disorders, but affects the way in which those to be designated with NCR are to be sentenced.
In general, NCR is uncommon in Canada – The default attitude of the law is to be overly cautious with who can and cannot be considered NCR to avoid conflict and controversy. Through this case study, many specific pieces of information were drawn from the relatively small pool of cases that involve NCRMD in Canada, and notable trends were observed. The goal of the case study was to determine the way in which a typical NCR case plays out in court, and evaluate the quality of evidence used in determining culpability when contrasted with current neuroscientific developments. However, through the study of various court cases, it was also unintentionally observed that the clear majority of NCR cases involve individuals that have been diagnosed with either schizophrenia or bipolar disorder. It can be speculated that the latter is because it is simple to argue that those individuals suffered from delusions that took away from their capacity to understand the nature of the crime. These disorders are also amongst the most common and thoroughly understood in the scientific community. However, with more complex (and oftentimes less understood) conditions such as brain tumors, CTE, borderline personality disorder, concussions, etc. are not fully understood, and thus sound conclusions regarding culpability cannot be made. It is also common for the defendant to be against being treated as NCR – For instance, Bergman of R v. Bergman (2000) refused all psychiatric assessment, and Jones of R v. Jones (2011) believed that NCR was unnecessary as he was convinced that he was Jesus Christ. In terms of court procedures and evidence, the weight of the NCR decision was heavily based on the opinion of expert psychiatrists, which were either court mandated professionals or aided the defendant in managing his/her neurological disorder in the past. NCR cases over the past 2 years demonstrate that the most salient factors that distinguish between those who get NCR status and those who don’t “are factors related to psychiatric opinion” (e.g., diagnosis of a psychotic disorder or recommendations psychiatrists make in reports to the court). This further reinforces the stark contrast between neuroscientific innovation and the current state of the law; Whilst neuroscience is constantly developing and understanding of behavior is increasing, the legal system evolves glacially and has not adopted major technological integration in the past 30 years – An interview with lawyer Calvin Berry uncovered that the last major technological contribution to the law was the development of the polymerase chain reaction to replicate limited DNA samples in 1984. As a result, a lot of NCR cases remain disputed because of the grey area surrounding the evaluation of culpability. Through studying cases, it can also be seen that a large quantity of individuals are being sent to hospitals for rehabilitation. This has ultimately lead to those deemed “high-risk” by Bill C54 being permitted to be put into a hospital for up to 3 years awaiting a verdict on their NCR status (or incarcerated if the hospital beds are full). Once more, the latter problem can be explained by a lack of neuroscientific understanding of the nature of neurological disorders, and how they can influence one’s mens rea.
Conclusion & Suggestions:
Due to range of perspectives of adults in Canada regarding the most effective way of trialing individuals with neurological disorders, conclusions can only be made with a limited degree of certainty. Overall, a significant portion of adults do not believe that accommodations are needed for people with neurological disorders who commit crimes, and many are comfortable with the use of experimental technology to properly evaluate culpability – Especially considering the limited use of neuroscientific innovation in the court of law. The findings also demonstrate that schizophrenia and bipolar disorder are the most common neurological disorders that result in NCR verdict. It can be safely stated that the reason for almost all conflict surrounding Bill C30 is due to a lack of neuroscientific understanding, and the lack of public knowledge about what being designated NCR entails. To mitigate the severity of this underlying problem, lawyers and other members of the courts should be given an updated understanding of the current interpretations of the brain and behavioral disorders. However, to truly determine if the NCR bill is effectively contributing to the ultimate de-stigmatization of mental illnesses, further research on the social outlook of individuals on those with neurological disorders should be conducted.
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Waldbauer, J., & Gazzaniga, M. (2001). THE DIVERGENCE OF NEUROSCIENCE AND LAW. Jurimetrics, 41(3), 357-364. Retrieved from http://www.jstor.org/stable/29762710
Interview questions from discussion with Toronto criminal lawyer, Calvin Barry (J.D.):