R. v. King [1962] S.C.R. 746: Sodium pentothal (“truth serum”) used for tooth extraction. He was given a form to sign saying he was not o drive after one half hour. A nurse repeated the warning. He, nonetheless, got in his car and had a minor accident. His defence was that he fell unconscious and lost control of the car. Taschereau: “There can be no actus reus unless it is the result of a willing mind at liberty to make a definite choice or decision.” This is probably where Dickson’s emphasis on control comes from.
If the person was blacking out in a dissociative state, the primary issue before the jury is whether or not this is a mental disorder. If it is due to mental disorder, accused will be committed. If not, person is acquitted.
Consciousness is a sine qua non to criminal liability; there is no actus reus nor anymens rea.
R. v. Rabey [1980] Objective standard for psychological blow giving rise to a defence of automatism. Strong dissent.
2 S.C.R. 513
FACTS
The accused had a crush on the victim: a pretty and outgoing classmate. She didn’t feel the same way and said so (along with hurtful things about the accused) in a letter that she had written to a girlfriend. The accused found and read the letter before it ever got to its intended recipient and he was deeply upset by it. The next day, while the accused and the victim were walking together at school, something she said triggered a violent reaction in him and he struck her several times with a rock he had borrowed from class (they were geology students) and then choked her. He snapped out of it when people found him and couldn’t remember much of what happened. The girl recovered from her injuries. The trial judge acquitted. The C.A. ordered a new trial. The accused appealed. The S.C.C. confirmed Martin J.A.’s holding from Court of Appeal.
ISSUES
Did the trial judge err in making the defence of “sane automatism” available?
HELD
Yes. New trial ordered.
RATIO
Martin J.A.—the trial judge was wrong in holding that the “so-called ‘psychological blow’” causing the dissociative state of the accused, was an externally originating cause. Rather, “…she should have held that if the respondent was in a dissociative state at the time he struck Miss X he suffered from a ‘disease of the mind’” [my emph.]
NOTES
Internal Cause Theory
Martin J.A. lists certain things that can result in a dissociative state from emotional shock without physical injury. Among them: seeing a loved one murdered or seriously assaulted. He sees such events as extraordinary and obviously doesn’t regard what caused Rabey’s shock as extraordinary, leading him to conclude that if Rabey was really in a dissociative state from the contents of the letter, he must have been suffering from a disease of the mind.
The burden here was on the Crown beyond a reasonable doubt. (This changes in Stone.) Is automatism or the dissociative state defence “the last refuge of a scoundrel”?
Dissent led by Dickson J.
“That the defence of automatism exists as a middle ground between criminal responsibility and legal insanity is beyond question.”
“Consciousness is a sine qua non to criminal liability.” In this case, there is no evidence of mental illness other than the blackout.
Dickson: “There is no evidence to support Martin J.A.’s statement attributing the dissociated state to the psychological or emotional makeup of the appellant.” (The Crown had to establish that the accused suffered from a disease of the mind in order to reject automatism since s. 16 presumes sanity.)
Dickson: “I cannot accept the notion that an extraordinary external event, i.e., and intense emotional shock, if and only if all normal persons subjected to that sort of shock would react in that way.” [My emphasis.] Dickson takes issue with Martin J.A.’s objective standard of psychological blow and iterates that the criminal law is concerned with subjective mental condition.
Dickson’s arguments against the external/internal cause theory have downgraded the test to an “analytic tool” in Parks and a test in Stone again as part of a “holistic approach.”
R. v. Parks [1992] Sleepwalker killing elicits non-insane automatism defence.
2 S.C.R. 871
FACTS
The accused was experiencing serious personal problems (charged with embezzlement), including losing his job. He had a family history of sleep disorders. He had trouble sleeping and after falling asleep in the living room one night, he got up, put on a jacket and shoes, grabbed his keys and drove 23 km to his in-laws, where he strangled his father-in-law until the latter was unconscious and killed his mother-in-law. (He had no motive to kill these people.) He raised the defence of sleepwalking at trial. Had the available defence been one of insanity, he could have only got a special verdict of non guilty by reason of insanity. In fact, the trial judge left the defence on non-insane automatism to the jury, which fully acquitted the accused based on such a defence. The Crown appealed.
ISSUES
Did the trial judge err in allowing the defence as non-insane automatism rather than insanity?
HELD
No. Acquittal upheld.
RATIO
Lamer C.J.C.—following expert testimony, three important points: (1) the respondent was sleepwalking at the time of the incident; (2) sleepwalking is not a neurological, psychiatric or other illness—it is a sleep disorder very common in children and also found in adults; (3) there is no medical treatment as such, apart from good health practices, especially as regards sleep.
NOTES
On distinguishing between insane and non-insane automatism
La Forest J—“When the automatistic condition stems from a disease of the mind that has rendered the accused insane, then the accused is not entitled to a full acquittal, but to a verdict of insanity”.
On what the judge must do when the accused raises defence of non-insane automatism
The judge must determine whether there is some evidence on record to support leaving the defence with the jury (there is, thus, an evidential burden on the accused; a simple assertion will not suffice)
If step 1 is met, the judge must consider whether the condition alleged by the accused is, in law, non-insane automatism.
The prosecution never challenged his claim of sleepwalking. They only raised the issue that sleep walking was a mental disorder. Given this, it’s no surprise that Parks was acquitted.
Burgess: discussed by Lamer J.: sleepwalker assaulted a woman with a VCR after they had watched a movie together. This and a recent case in England treat sleepwalking as a mental disorder. In Burgess, the experts said that sleepwalking was likely to recur, that it was a mental disorder and that it was treatable.
R. v. Stone [1999] The external/internal cause theory lives on.
2 S.C.R. 290
FACTS
The accused was in the car with the victim, his wife. She was being verbally abusive to an extreme degree. The accused said he felt a “whoosh” come over him and when his eyes focused again, his wife lay dead, stabbed 47 times by the accused. The accused collected a debt, sold a car and flew to Mexico. In Mexico, he awoke one day with a feeling of having his throat cut. He visualized himself stabbing his wife and returned to Canada, surrendered to police, and was charged with murder. The trial judge disallowed the defence of sane automatism but instructed jury on insane automatism.
ISSUES
Did the trial judge err in not putting defence of sane automatism to jury?
HELD
No.
RATIO
Bastarache J.—The internal/external cause theory may be helpful to provide guidance… it is most useful in automatism claims of this nature.
NOTES
Internal/external cause theory is there to put a check on this defence.
The law now wants a holistic approach. The majority, though, does not reject the internal/external cause theory.
Theory may be helpful to provide guidance. Most useful in automatism claims of this nature.
P. 870 (9th ed., last par.): take judicial notice that it is in rare cases that automatism will not be the result of mental illness.
“…[T]he legal burden in cases involving claims of automatism must be put on the defence to prove involuntariness on a balance of probabilities to the trier of fact.”
