Kimberly D. Hyslop presented her paper "Raising the NCR Defence at Trial" as part of the "NCR and Mental Health Panel" at the 29th DCAO / CCLA Criminal Law Conference:
The issue to be considered is whether the accused has the capacity to reason and to understand the meaning of the terms right and wrong which requires a moral judgement on the part of the accused. An accused is only afforded the defence under section 16 “if he is incapable of understanding that the act is wrong according to the ordinary moral standards of reasonable members of society” in the particular circumstances.
If the accused is unsuccessful in establishing the section 16 defence on a balance of probabilities, the Court must still consider whether or not the Crown has met its burden of proving that the accused is guilty of the offence beyond a reasonable doubt, in light of any mental illness which may affect the mens rea. Practically speaking, defence counsel should never admit the mens rea on a contested trial where the NCR defence is advanced.
The panel and paper are available to fellow lawyers for continuing professional development.