PSYCHANALYSE D'UNE DEFENSE: REFLEXIONS SUR L'ALIENATION MENTALE

Abstract

Now that the Charter of Rights and Freedoms gives the presumption of innocence a constitutional status, some argue that the burden of proof associated with the presumption of sanity set out in section 16(4) of the Criminal Code should be revised In this article it is suggested that what is needed is not simply a discussion of the reversing of the burden of proof associated with a defence of insanity, but rather a more fundamental reconsideration of the true nature and future of this defence. More particularly, it is contended that the basic conditions of the defence, and especially the concept of insanity, should be revised so that they are in accord with the theory of mens rea and the principles of fundamental justice. Special verdicts and confinement orders can be justified only to protect society against individuals whose mental disorder results in violence which may be repeated In conclusion, the author states that the burden of proof of insanity by the civil standard of proof is justified by the special nature of the verdict and the deprivation of freedom which follows.