In Dhingra v. Dhingra, the Ontario Court of Appeal considers whether section 17 of the Civil Remedies Act varies the rule of public policy that a person cannot profit from his wrongdoing where the accused has been found not criminally responsible on the basis of mental disorder (NCR-MD). The court held that the common law rule and the remedy under the Act do not conflict. The court allowed the appeal.
The rule of public policy states that a person cannot profit from their wrongdoing, but a person found NCR-MD is neither morally nor legally considered responsible for the death. The rule does not forbid a person found NCR-MD for the murder of another from sharing in a deceased’s estate or taking in the proceeds under an insurance policy. Using the Civil Remedies Act, the Attorney General can make an application for the forfeiture of proceeds of unlawful activity to the Crown. Under section 17, proof that a person was found NCR-MD for an offence is proof of the offence. However, this remedy is only available on application by the Attorney General and the court should only grant the order if it would be in the interests of justice to do so (s 3). The Court found that the common law rule and the remedy under the Civil Remedies Act do not conflict, as the former only deprives the wrongdoer of his or her share and allows the funds to go to other beneficiaries. However, an order under the Civil Remedies Act would deprive all beneficiaries of the proceeds. In these cases, the Attorney General may make an application for the forfeiture of the proceeds, but collection of the proceeds by the person found NCR-MD would not be barred by public policy. The court would be required to consider whether such forfeiture would be in the interests of justice.
The rule of public policy states that a person cannot profit from their wrongdoing, but a person found NCR-MD is neither morally nor legally considered responsible for the death. The rule does not forbid a person found NCR-MD for the murder of another from sharing in a deceased’s estate or taking in the proceeds under an insurance policy. Using the Civil Remedies Act, the Attorney General can make an application for the forfeiture of proceeds of unlawful activity to the Crown. Under section 17, proof that a person was found NCR-MD for an offence is proof of the offence. However, this remedy is only available on application by the Attorney General and the court should only grant the order if it would be in the interests of justice to do so (s 3). The Court found that the common law rule and the remedy under the Civil Remedies Act do not conflict, as the former only deprives the wrongdoer of his or her share and allows the funds to go to other beneficiaries. However, an order under the Civil Remedies Act would deprive all beneficiaries of the proceeds. In these cases, the Attorney General may make an application for the forfeiture of the proceeds, but collection of the proceeds by the person found NCR-MD would not be barred by public policy. The court would be required to consider whether such forfeiture would be in the interests of justice.
Mary Phan
*
No comments:
Post a Comment