Can unexpectedly falling asleep while driving constitute non mental disorder automatism? YES
Other examples: stroke, epileptic, hypoglycaemia, or extraordinary psychological blow (per Rabey)
Held: the actus reus of the offence – may consist of driving in the fact of a real risk of falling asleep (which did not occur here) – no voluntariness for the actus reus (driving under prohibited circumstances)
“acts committed in that automatistic state of mind cannot form the actus reus of dangerous driving”
BUT a sleeping driver can be convicted of dangerous driving if they knowingly took the risk of driving and falling asleep
R v Luedecke 2008 ONCA
Accused committed a sexual assault while he was asleep, and he had a history of such behavior. An expert testified that those with this disorder have no volition in these activities (sexomulism)
Can sleepwalking be classified as a mental disorder?
YES
Courts change their orientation to sleepwalking post-Stone
Big change since Stone is now automatism is presumed to be a disease of mind
Preference for this finding since NCR individuals are treated so much better now – makes more sense
Held: new trial ordered, CA held that the trial judge erred by acquitting the accused because Stone signals a strong preference for NCRMD in cases where an accused establishes they were in a dissociative state and acted involuntarily
Winko came three weeks after Stone, and established that s.672.54 requires the absolute discharge of anyone found NCRMD unless the court or Review Board finds them to be a “significant threat to the public”
No burden on NCRMD accused to prove lack of dangerousness
There must be evidence establishing the risk – trivial or miniscule risk is not enough
Even where risk is significant, the disposition order must be tailored to the specific circumstances of the individual and must, to the extent possible, minimize the interference with that individual’s liberty
Battered Spouses:
Graveline 2006 SCC
She was a battered spouse throughout the marriage
Held: a successful claim of non mental disorder automatism produced by psychological blow (battered woman syndrome) – psychological blow automatism is not dead!
Triggering incident was not extreme (test from Stone) but the accused had been abused throughout the marriage and so in the context it could be considered extreme – had built up over 32 year abusive relationship
Expert evidence supported her claim of automatism (build-up of unexpressed rage due to years of abuse)
Stands out as departure from Stone, unknown if it will be followed in relation to automatism
The case was decided on a different issue, but the court left open the possibility that conduct falling short of an “extremely shocking trigger” can constitute a “psychological blow” when placed in the context of battered women syndrome (more contextualized, subjective view here)
Issues with Automatism to keep in mind
Many people try to delay trial, get therapy (therapeutic bail), pitch all treatment options to show potential for rehabilitation and therefore lessen strong public danger concerns – more likely to get off without a mental disorder designation
Risk with going this route – could get acquittal, but could also get NCRMD
Issues of untreatable mental disorders: should they be released or held indefinitely?
Defence would argue for release (non mental disorder) whereas the crown would likely go s.16 mental disorder
Provocation
a partial/limited/qualified defence (not a full defence) to the offence of MURDER only
Unlike automatism, provocation is a statutory defence (s.232 of CCC)
it has objective and subjective elements
exists separately from intent (i.e. can apply even if intent for murder was present – based on loss of self-control, rather than provocation negating the requisite intent)
Can reduce to manslaughter, but not a full acquittal (after murder offence has been made out) limited application, but it ONLY applies to murder (not even attempted murder)
Partial relief as well: escapes the life sentence mandatory minimum, instead of acquittal
If some evidence raised, left to the jury – burden is on the Crown to prove that the murder happened in the absence of provocation
Rationale:
A person who loses self control, momentarily, in response to an act or insult, as diminished culpability (that would otherwise flow from a murder conviction)
Idea that there are human frailties in the ordinary person, and when provoked, the ordinary person can react violently
Intended to be compassionate (someone responding to passion is somehow less blameworthy than calculated murderer)
Limits
“objective test” (only available if ordinary person would have also reacted similarly)
prevents the extraordinarily violent/quarrelsome from getting off here
only available for murder
balances the need to protect society with the reality of human frailty/loss of control
