What determines your “awareness” when it comes to being criminally responsible for murder?

Question

I recently came across an (admittedly) infuriating case in Canada where a person stabbed, dismembered, and literally cannibalized a man in a bus. He was later deemed not criminally responsible since it was deduced that he was an undiagnosed schizophrenic. He is now completely free.

As per Canadian law,

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.[3]

What is the philosophy that discusses how to differentiate between someone being “aware” of their actions vs. not? Isn’t many types of murder technically due to an impulse, where the person who murders may not be able to control or realize the full implications of that impulse (even if they’re not diagnosed mentally ill) ?

Answer 1

In Canada, there are two limiting principles at play. You have quoted one, but have imported concepts from a second.

1. Automatism: Conduct over which one does not have volitional control cannot be criminal.
2. Not criminally responsible due to mental disorder: 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.

Automatism

Conduct that is involuntary (in the sense of having no conscious control or awareness of one's actions) "cannot be criminal" (R. v. Brown, 2022 SCC 18):

To deprive a person of their liberty for that involuntary conduct committed in a state akin to automatism — conduct that cannot be criminal — violates the principles of fundamental justice in a system of criminal justice based on personal responsibility for one’s actions.

That is a very high bar. This kind of automatism is where a person has "no voluntary control" over their actions. There is "no connection between mind and body." Examples include "the involuntary physical movement of an individual who has suffered a heart attack or seizure" or "conditions such as sleepwalking or delirium, where the body moves but there is no link between mind and body."

Physical voluntariness is a principle of fundamental justice and a requirement of all true criminal offences, central to the criminal law’s desire to avoid convicting the morally innocent. ... Absent a willed movement of the body, the Crown cannot prove the actus reus beyond a reasonable doubt.

Not criminally responsible due to mental disorder

This is a defence created by Parliament. It was a choice of Parliament to not hold people criminally responsible when they suffer from a mental disorder preventing them from appreciating the wrongness of their actions.

Glanville Williams notes that this sort of defence is a mens rea defence. See Textbook of Criminal Law, p. 644: "Did he know what he was doing?... Did he know he was killing someone; did he know that he was sticking a knife into someone."

As for the second prong of the test (whether the accused lacks the capacity to know the act was wrong), the Supreme Court has described it like this:

The crux of the inquiry is whether the accused lacks the capacity to rationally decide whether the act is right or wrong and hence to make a rational choice about whether to do it or not. The inability to make a rational choice may result from a variety of mental disfunctions; as the following passages indicate these include at a minimum the states to which the psychiatrists testified in this case -- delusions which make the accused perceive an act which is wrong as right or justifiable, and a disordered condition of the mind which deprives the accused of the ability to rationally evaluate what he is doing.

...

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. In such a situation the accused should be exempt from criminal liability.

Canadian law does not require a person to have "full control" or understand the "full implications" of an impulse in order to be subject to criminal penalties. It is enough that their mind is controlling their body and that they don't have a mental disorder that prevents them from knowing what they're doing or that it is wrong.

Answer 2

This touches on the notion of mens rea, or "criminal mind", it is to say the awareness of the wrongdoer that they are indeed doing something illegal.

The obligation for the government to establish mens rea in a criminal case is an important component of legal security, the idea that rules are clear, well established and stable, so that citizens are not encombered by fear of breaking the law each time they do something, which would be the mark of an arbitrary ruler. The Enlightenment movement and precisely the works of Cesare Beccaria in On Crimes And Punishement is the philosophical basis for this idea in the western world (though the notion of mens rea can be tracked back to antiquity).

Mens rea plays an important role in cases related to business or regulations, where the law is quite convoluted because of the complexity of the subject matter. To take a famous example, it was an important part of the recent case The People of the State of New York v. Donald J. Trump, because Trump's lawyers argued he didn't know that the way he was keeping his business records was wrong and therefore he should not be found guilty but instead notified of the law as a warning to not do it again. However, paperwork evidence made it obvious that he attempted to conceal his record manipulation and that convinced the jury that he knew, at the time, that he was in the wrong and he was found guilty.

There are other, more relatable, cases that are not related to business, like people refusing to obey the orders of a police officer who is not clearly identified (not in uniform or behind a door, etc). As citizen we are bound to obey lawful directions form police officers, but not from random people, so refusing to obey a police officer, as long as you don't know they are one, is not an offence. The act is exactly the same, you still disobeyed a lawful order by a police officer, but since the mens rea is not established you can't be prosecuted.

The point here is that, as citizens, we don't want to be prevented from doing any business by the fear that an honest mistake could lead us in jail, or have to obey any random person by fear that they could be a police officer. The rule would do more harm to society than it tries to prevent.

The obvious counter argument here is that when someone kills and canibalizes another person they clearly have to know it's illegal, this is not some obscure point of the law. This is where the mental illness and "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" comes into play. Some people with heavy mental illnesses can enter such a state, and therefore have no mens rea.

It is up to psychiatric experts to determine if this is the case, and the bar is actually pretty high. From the top of my head I remember a case where the culprit was indeed in a very deranged state and tried to use this defense, but it was rejected because they tried to hide evidence (the weapon) immediately after the fact. This was enough to demonstrate that they were aware that what they just did was wrong, since they felt the need to hide it.

The need for the government, in criminal cases, to prove mens rea is a protection for every citizens against the potential arbitrary power of said government's agents. The obligation for someone to be in a mental state that does not prevent awareness of the criminal nature of their action is just its logical consequence.

Now, it is only natural that the idea of someone being able to do such a violent act being released among the general population is unsettling. The link you provide says he is released "without monitoring", so probably without any current obligation to treat his condition. However, the act itself happened in 2008, 16 years ago. The article does not provide details about the treatment received by this person during those 16 years. Maybe he is cured, maybe he isn't, I don't know. If he is cured there is no reason to keep him in custody since he does not represent any danger, and he hasn't been found guilty of a crime.

There is a solid case that can be made, based on Social Contract Theory, that every citizen can have a right to want dangerous individuals to be kept isolated from the general population, as long as they claim no privilege and consent to be treated this way, should they turn out to be considered dangerous themselves. It immediately raises the question of who has authority to decide who is dangerous or not, trust into experts rulings and potential abuse of such power. There is a balance to be found between our right to not be imprisonned without good lawful reasons, and our right for personal security. Where exactly the cursor should be set is left as an exercice for the reader.

Answer 3

Blameworthness

2.1.1 Moral Agency

... being to blame (i.e., causally responsible) is not sufficient for being blameworthy because often, the best or most salient causal explanation doesn’t even involve a moral agent at all. Earthquakes and mosquitoes can be to blame for various negative outcomes, but neither can be blameworthy because neither can, as Gary Watson puts it, “act effectively and competently in moral matters”. Only certain creatures are even candidates for blame in the first place, and though it is a matter of some controversy which precise capacities are required, the list certainly includes the capacities for reflection, deliberation, decision-making, and self-determination. But earthquakes and mosquitoes are the easy cases; the harder cases are children and psychopaths, individuals who haven’t (or haven’t yet) developed an understanding of or an appreciation for moral norms. These individuals, it seems, can still act in morally significant ways—indeed, in ways we would naturally describe as cruel and even evil—but whether they can earn moral blame (as opposed merely to giving us good reason to protect ourselves from them) is a vexed question. But regardless of how one answers that question, it is widely accepted that potentially blameworthy agents must be capable of reflecting upon, reasoning about, and executing a decision about how to behave. If someone lacks these capacities, they are exempted from blame.

2.1.2 Freedom and Responsibility

In addition to having the general capacity for practical reasoning, however, it is often thought that an individual is appropriately blamed only if they had (and, on the occasion, exercised) free will. The excuse “I couldn’t help it” or “I was forced to do it” is often sufficient to render blame inappropriate, so it’s a natural thought that someone can only be blamed for those things that they could have helped, or weren’t forced into—in other words, for those things that they chose of their own free will. ... Typically, free will is thought of as a sort of control: as the ability to control (by selecting) which of two possible futures obtains, for example, or as the ability to control (by guiding) one’s actions in light of one’s considered judgments about what one ought to do.

[Citations omitted]

Legal blame

Every moral philosophy has to deal with the notion of blame and when a moral agent deserves to be blamed for their actions, attitudes, or character. Assuming that the legal system is a moral system, which is at least arguable in modern, pluralist, democratic states, they are only concerned with actions (and sometimes inaction), — noting that most consider words to be a form of action — not attitudes or character. In most places like this, for most laws, it is only considered appropriate to blame and, therefore, impose punishment where the perpetrator is legally blameworthy.

As you have said, in Canada:

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.

So, the legal standard of blameworthiness in Canada (and Canada is by no means unusual) is that the person must be:

• Suffering from a mental disorder, and
• As a result of that mental disorder, they must be
  • unable to understand what they are doing, or
  • unable to understand that what they are doing is wrong.

That is the law. Whether this is applicable in a particular case is a matter of fact, not a matter of law. That is, in Canada and other common law countries, it is for the jury to determine, not the judge, based on the evidence placed before them.

For this sort of defence, the evidence is likely to be expert evidence from psychologists and psychiatrists who will testify whether, in their opinion, the defendant was or was not suffering from a mental disorder and, if so, whether that rendered them capable of understanding a) what they were doing, and b) that what they were doing was wrong.

Now, the prosecutor and the defence may agree that the defendant was (or was not) in such a state, if so, the fact is not in contention and the jury does not have to decide the matter. If the fact is in dispute, then the jury hears the evidence, deliberates and comes to a verdict.

Isn’t many types of murder technically due to an impulse, where the person who murders may not be able to control or realize the full implications of that impulse (even if they’re not diagnosed mentally ill) ?

Yes.

However, the legal system has determined that the person is blameworthy and deserves punishment in such circumstances. The mental disorder defence only applies to people who have a mental disorder, not to people who have poor impulse control or an inability to foresee the consequences of their actions.

Note that there are other defences that absolve people of blame. For example, children, people acting in self-defence, and drink or drug-affect people (in some jurisdictions, self-administered intoxicants are not a defence, in others they are) are not normally considered legally blameworthy.