R v David – 2002 OJ No 3455 (CA – Simmons):

[48] I agree that it would have been preferable had the trial judge instructed the jury that they could consider the s. 16 defence only if they were satisfied that the accused committed the act forming the subject matter of a particular charge and, if it was necessary that they consider the s.16 defence, that they should do so before determining whether the appellant had the necessary intent for murder and whether the murders were planned and deliberate. However, I am not persuaded that the trial judge committed reversible error by instructing the jury as he did.
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[50] Given that a s. 16 defence advanced on the basis of negating mens rea relates to the issue of capacity to form intent, it is more logical, theoretically, to deal with that issue prior to considering whether an accused actually formed the requisite intent. If the jury rejects the s. 16 defence, it is nevertheless required to consider the whole of the evidence relating to mental disorder in determining whether the Crown has proven that the accused actually did form the necessary intent. In light of the nature of the issues to be determined and the evidence to be considered, it is more logical to begin with the issue of capacity and then move to the question of actual intent.