Saturday, September 14, 2013

Alpha Flight, X-Men and Secton 16 of the Criminal Code of Canada

I was reading the Uncanny X-Men: Days of Future Past trade paperback by Chris Claremont and John Byrne recently. Alpha Flight fans may remember that the arch immediately prior to Days of Future Past (and featured in its trade) is an Wendigo-focused story that happens in northern Canada and has the X-Men and Alpha Flight working together, something that had been a rarity up until that point. One of the later panels of Uncanny X-Men #141 particularly caught my attention. Have a look: 

Wendigo reverts to Georges Baptiste and is promply arrested in Uncanny X-Men #140 (December 1980).
Later, Guardian explains what will happen to Mr. Baptiste after his arrest. Also from Uncanny X-Men #140 (December 1980).
Alpha Flight has always been somewhat of an anomaly in comics because its an early state-sponsored superhero group. Of course, we saw groups like this in Golden Age WWII comics; the aftermath of Marvel's Civil War event in late 2000s; and even the U.S. government employed Superman in Frank Miller’s Dark Knight Returns in 1986. But from their very beginnings Alpha Flight has always seemed to be working on behalf of the Canadian government in peacetime. Which is what brought these “super-mounties” into contact with the X-Men and Wendigo in the first place. 

But what exactly would happen “under Canadian law” in this instance? Could Mr. Baptiste be held responsible for any crimes while possessed by the spirit of the Wendigo? And what defences could his lawyers use so the courts "aren't too hard on him" as Guardian suggests? In this short piece I'm going to examine Section 16 of the Criminal Code of Canada and how Mr. Baptiste might use the defence of a mental disorder to prove to the court that he should not be found criminally responsible for his actions.


Simply put, defences are the means by which defence lawyers prove to the “trier of fact” (which in most cases is a jury in Canada, but at times can also be a judge) that the Accused should not be found guilty of the alleged crime. Serious crimes in Canada must have both a Mens Rea (a guilty mind) and an Actus Reus (a corresponding guilty act). This is very important because it's against natural justice, the Canadian Charter of Rights and Freedoms and even common sense to seriously punish someone who didn't have a guilty mind when they committed a crime.

In Canada, our bedrock document relating to criminal law is the Criminal Code of Canada. This massive tome, while not containing all Canadian criminal law, contains the vast majority of it. First created in the 1892 in an effort to put into statute or "codify" the criminal law of Canada, the text has been amended over the years as Canada's changed. The Code not only contains offences that a person can be charged with, but also defences that can be used by the Accused to prove they are not guilty or criminally responsible. These range from age capacity (Section 13) to the defence of property (Section 40). For the purposes of today's discussion, the defence that applies to the events of Uncanny X-Men #139 and #140 is the mental disorder defence, which is Section 16.  

The "Super-Mounties" of the Marvel universe. Here's Alpha Flight from X-Men and Alpha Flight Vol. 2 #2 (June 1998)
Section 16

Taken directly from the Criminal Code, Canada's mental disorder (we do not say "Insanity") defence is:  

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: 1) appreciating the nature and quality of the act or omission or; 2) of knowing that it was wrong.   

Like much of Canadian law, this section of the Criminal Code reaches back to English criminal law, specifically the judgment of M'Naghten's Case of 1843. In M'Naghten, the accused, a Mr. Daniel M'Naghten (pronounced, and sometimes spelled, McNaughtan or McNaughton), attempted to kill British Prime Minister Robert Peel. He was unsuccessful, but in the melee ended up killing one of the prime minister's aides. The resulting trial eventually found its way to the House of Lords, then the court of last resort in the United Kingdom, where the judgment reflected the longstanding idea that mental illness should not be met with retribution, but with mercy.   

Of course, the press and many elected officials vociferously denounced the verdict, something that happened when John Hinkley, Jr. successfully used the defence after his failed assassination attempt on Ronald Reagan almost 140 years later. Congress and a number of states took immediate action to ban the so-called "insanity defence" outright, but the M'Naghten defence still remains on the books in a number of US jurisdictions, just as it is used in Canada and in England and Wales.  

Guardian getting it done in X-Men and Alpha Flight Vol. 2 #2 (June 1998)
Which takes us to the case at hand. In defending Mr. Baptiste, I would say counsel's best move is a Section 16 defence, something Guardian even alludes to. Of course, because the curse of the Wendigo is enacted by the consumption of human flesh, we would have to prove that Mr. Baptiste did not consume the flesh with the intent of becoming a monster, but only out of a desire to survive in the wilderness. This is because we would not want to use the analogous logic of someone using "liquid courage" to commit a crime and then claiming intoxication as a defence. But if Mr. Baptiste didn't understand that his actions would lead to him becoming Wendigo and this subsequent magical mental illness made him loose control of his actions (thereby negating any Mens Rea) I think a Section 16 defence would work. 

It is important to understand that what constitutes a "mental disorder" is a question of law and therefore left to the judge to decide. So while cases involving Section 16 inevitably involve psychiatric experts testifying under oath (and there are provisions to prevent an endless "battle of the experts"), ultimately the judge will decide if there is a disease of the mind in play. She or he will then instruct the trier of fact (jury) to answer: 1) at the relevant time of the crime the accused was incapable of appreciating the nature and quality of his/her action, and if so; 2) he or she did not know that it was wrong. 

And as in all Canadian criminal law, there is case law to guide a Section 16 defence, such as what "appriciate" actually means or how Section 16 relates to specific illnesses, but that is beyond the scope of our piece today. Hopefully however you're leaving here with a better understanding of Canadian criminal law, The Criminal Code of Canada and the Claremont/Byrne run on Uncanny X-Men. Using Section 16 with regard to a magical possession seems a little bit of a stretch, but that's the fun of comics and may even have even been on Guardian's mind he says Mr. Baptiste's actions were those of an "insane man". Thanks again for stopping by and I hope you're having a great September.

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