FACTS: Fontaine shot and killed a man who he thought was contracted to kill him. His conduct was consistent with paranoid delusions, but it was unclear if they amounted to a mental disorder, or if his heavy drug use affected that.
PROCEDURAL HISTORY: Found guilty of first degree murder at trial, new trial ordered at appeal.
ISSUES: Did the trial judge err by not putting forward the defence of mental disorder automatism to the jury?
DECISION: Appeal dismissed.
REASONS: All that has to be established to raise a defence to the jury is that there is evidence which a jury could use to reasonably decide the issue. A defence should only not be raised if there is no air of reality, there is not a sufficient evidential foundation to ground the defence. It is an evidential burden, not a persuasive one - the evidence need not be convincing, it only needs to be capable of allowing the trier of fact to make a decision. The question for all defences is: ‘Is there in the record any evidence upon which a reasonable trier of fact, properly instructed and acting judicially, could conclude that the defence succeeds?” Automatism should be raised as a defence if this evidential burden has been discharged, even if the judge is sceptical. The evidential burden can generally be satisfied through an assertion of involuntariness and a “logically probative opinion of a qualified expert”, one that supports the claim of automatism.
RATIO: The defence of automatism should be raised to the trier of fact if the evidentiary burden for the defence is discharged, meaning it has an air of reality and the evidence could support it. The trier of fact determines whether the defence is persuasive, not the trier of law.
R v Luedecke 2008 ONCA
Facts: Luedecke sexually assaulted someone at a party while he was asleep. Evidence showed that this sexsomnia was a recurring problem. The sleep doctor didn’t claim this was a mental disorder.
On the continuing danger and the internal cause approaches, this was reasonably considered a disease of the mind – this is not a medical finding, but a legal response to the recurring nature of his sexual conduct.
He was not acting voluntarily, and so (morally) he should not be punished. There was no actus reus. Per Parks, though, the continuing danger posed and other policy concerns can lead to the finding that sleepwalking is a mental disorder. Here, it has a genetic cause (internal), and there’s a longstanding risk posed (as previous girlfriends attested).
The purpose of a NCR verdict is to ensure that the mentally disordered get the help and treatment they need; it’s not meant to stigmatize.
INTOXICATION
Intoxication (short of automatism) only functions as a quasi-defence to specific intent crimes which require a higher level of cognitive function (than general intent crimes)
3 levels of intoxication:
Mild intoxication – irrelevant to mens rea
“advanced intoxication” – where the accused is intoxicated enough to negate specific intent
Three possible roles here, in order of increasing intoxication:
Reasonable doubt about mens rea for “planned and deliberate” first degree murder
Reasonable doubt about specific intent
Negate capacity to form specific intent
Extreme intoxication amounting to automatism – Daviault, where the accused is intoxicated enough to negate actus reus
S. 33.1 of the Code does not allow extreme intoxication to be a defence for crimes that violate the integrity of persons
Voluntary vs. involuntary intoxication – where intoxication is foreseeable, it is more blameworthy, and where it is not (someone slipped you an intoxicant, unexpected reaction from medication, etc.) the law is more lenient
Two sorts of burden:
Advanced intoxication: only tactical burden to raise evidence for defence; if it passes air of reality test, the Crown has to disprove beyond a reasonable doubt
Extreme intoxication: defence has to meet persuasive burden on balance of probabilities (Daviault)
The level of intoxication required to negate the mens rea depends on the offence
Intoxication disables the inference that (sane and sober) people intend the consequences of their actions, and the more foreseeable the consequences the more intoxicated you have to be
History
Common law: historically, intoxication was an aggravating factor, not a defence. As morals changed, it was held that it could rebut the specific intent requirement, but not an objective assessment (the reasonable person is sober) or a general intent crime. There are policy reasons to restrict the application of the defence, in the name of public safety and protection.
Current common law position (Beard): insanity (from intoxication, or organically) is a defence to a crime, and evidence of drunkenness speaks to specific intent; drunkenness short of incapacity doesn’t disable the inference that people intend consequences of their actions
Leary (1978, SCC)
Facts: Leary committed a rape while drunk
The defence of drunkenness does not apply to general intent offences
Daley (2007)
When evaluating intoxication, you look at the evidence as it pertains to the formation of the specific intent, NOT primarily to the accused’s capacity to form that intention (though it can speak to that)
Purpose of intoxication defence is to undermine the common-sense assumption that sane and sober people intend the consequences of their actions – it goes to the foreseeability of those consequences
No need to charge jury about mild intoxication – intoxication has to pass the air of reality test, which requires that there be evidence presented that the intoxication could have been severe enough to impair the accused’s foresight of consequences
