May 22, 2020

Summary of R v McKAY

R v McKAY, 2020 SKQB 82 (CanLII)
Criminal Law – Mental Disorder – Application for Assessment Order
Statutes – Interpretation – Mental Health Services Act, Section 2, Section 22
Criminal Law – Defences – Not Criminally Responsible

The accused was convicted of second-degree murder in the death of his spouse (see: 2020 SKQB 28). He applied pursuant to s. 672.11(b) of the Criminal Code for a court-ordered assessment of his mental condition so he could advance a defence of not criminally responsible by reason of a mental disorder (NCR) as defined by s. 16(1) of the Code. In the alternative, the accused sought an order for a mental health assessment pursuant to s. 22(2) of The Mental Health Services Act (MHSA).
HELD: The application was dismissed. The court reviewed the principles it was required to consider in a request for an assessment. Based on the principle that it could not consider evidence at the application that was inconsistent with findings made at trial, it decided that it could not order an assessment because although the accused testified that he had been in a dream-like state when he killed his wife, hearing voices telling him to kill her because of the effect of taking anti-depressant medication and consuming alcohol induced a state of alcohol-induced amnesia, the evidence was not accepted. There were no reasonable grounds to believe the accused had a mental disorder or to believe he had a disorder that prevented him from appreciating the nature and quality of his acts or knowing his acts were wrong. The evidence at trial had established that the accused appreciated the nature and consequences of his actions and knew they were wrong. The court would not grant the alternative request for a mental health assessment under the MHSA. That provincial legislation could not be used to supplant the provisions of the Code. The aims of the MHSA differ from those of the NCR provisions of the Code, as does its definition of mental disorder in s. 2(j). Section 22 is to be used after conviction or during sentencing.