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Section 2  of the Criminal Code provides as follows:

“unfit to stand trial” means unable on account of mental disorder to conduct a defence at any stage of the proceedings before a verdict is rendered or to instruct counsel to do so, and, in particular, unable on account of mental disorder to

(a) understand the nature or object of the proceedings,

(b) understand the possible consequences of the proceedings, or

(c) communicate with counsel;

“mental disorder” means a disease of the mind;

Cooper v. R., [1980] 1 SCR 1149 CanLII

per Justice Dickson


Support for a broad and liberal legal construction of the words “disease of the mind” will be found in the writings of the renowned jurist, formerly Chief Justice of Australia, Sir Owen Dixon, who wrote:

The reason why it is required that the defect of reason should be “from disease of the mind”, in the classic phrase used by Sir Nicholas Tindal, seems to me no more than to exclude drunkenness, conditions of intense passion and other transient states attributable either to the fault or to the nature of man. In the advice delivered by Sir Nicholas Tindal no doubt the words “disease of

[Page 1157]

the mind” were chosen because it was considered that they had the widest possible meaning. He would hardly have supposed it possible that the expression would be treated as one containing words of the law to be weighed like diamonds. I have taken it to include, as well as all forms of physical or material change or deterioration, every recognizable disorder or derangement of the understanding whether or not its nature, in our present state of knowledge, is capable of explanation or determination. (A Legacy of Hadfield, M’Naghten and Maclean, (1957) 31 A.L.J. 255 at 260). (Emphasis added.)

To the learned authors of Smith & Hogan Criminal Law (4th Ed) (1978) “It seems that any disease which produces a malfunction is a disease of the mind”. (at p. 164)


Jim O'Neil, LL.B.

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