The federal governemnt is set to unveil some reforms to the Criminal Code that would make it harder for those found not guilty by reason of insanity to be releaed. This will surely be tested at the Supreme Court. The insanity defense has always been tied with the concept of mens rea, an ancient doctrine requiring intent to be convicted of a crime. BUT is the doctrine enshrined somewhere in our constitutional principles? In the United States, the answer increasingly is no. For example, mens rea as requirement for conviction for a regulatory crime was abolished over sixty years ago in Dotterweich (See also my article on this).
Now Idaho, just recently, abolished the insanity defense alltogether, and the US Supreme Court has decided not to hear the constitutional challenge for now. Could we ever abolish the insanity defense in Canada?
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