common law defence, preserved by s.8.3
negates the “voluntariness” element of actus reus
the result of the successful defence is “not guilty” (this defence works depending on the source of the dissociation or automatism)
leading case is Stone, with an important application in Luedecke
What is it?
Definition: “impaired consciousness in which an individual, though capable of action, has no voluntary control over that action” (Stone) – note IMPAIRED consciousness, not unconscious.
Rabey v the Queen 1980 SCC: “unconscious, involuntary behavior, the state of a person who, though capable of action, is not conscious of what he is doing. It means an unconscious, involuntary act, where the mind does not go with what is being done.”
R v Stone 1999 SCC
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Held: “unconscious” just means “impaired” consciousness and doesn’t have to be “total”
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“a state of impaired consciousness in which an individual, though capable of action, has no voluntary control over it”
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DO NOT USE “unconscious”
Two kinds of automatism: -
Mental disorder automatism (a successful claim triggers s.16, results in a verdict of NCRMD)
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Non-mental disorder automatism (acquittal)
What is the burden of proof?
Only the accused can bring evidence of automatism, and must prove on BOP.
Rabey + Parks: where some evidence of automatism, Crown has burden of proving the act was voluntary BRD. This changed in Stone.
R v Stone 1999 SCC changes it to a reverse onus -
Held:
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1. Start with presumption that actions are voluntary (just like s.16 presumption of sanity)
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2. Burden falls to the accused to show the standard of proof on a balance of probabilities that their conduct was involuntary (rebut the presumption of voluntariness on BOP)
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Evidence the accused must present: Claim of involuntariness and…
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1) must call expert psychiatric or psychological evidence confirming the claim
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policy: expert evidence to address malingering and self-serving evidence
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2) along with some other supporting evidence to corroborate accused’s assertions
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psychiatric/psychological evidence alone will not meet the burden if that opinion is based only on an assumption of the truthfulness and accuracy of the accused’s account of the event, without other supporting evidence (issue of fabrication, so get family history, previous incidents etc)
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Michelle: this is a heavy burden, arguably restricts the availability of the defence
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if accused meets the burden the trial judge must decide if it is attributable to a mental disorder or not:
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mental disorder automatism funneled through s.16 instead XX.1 NCRMD (bad result), even though no language in s.16 re: “volitional impairment” – court extends the reach of NCRMD here (s.672.43 – detention in hospital or release with conditions or absolute discharge)
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Non-mental disorder automatism NOT GUILTY, complete acquittal (can’t assign fault to an involuntary act) – best possible result
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Extreme intoxication automatism Daviault defence, subject to s.33 ambiguous. May be convicted of a general intent offence
basically, three defences: intoxication, NCRMD, automatism
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Note: this burden has been held to be a justified limitation on the accused’s s.11(d) rights (Chaulk, Daviault)
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Three places where this reverse onus (to be proved on a BOP) exists: extreme intoxication (per Daviault), mental disorder, and automatism.
NOTE: in NCRMD, Crown or defence can present a s.16 application, but here it is exclusively to the accused to bring the defence on a BOP.
Fontaine 2004 SCC
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Held: evidentiary burden is the same for automatism: need SOME evidence to put defence to the jury
Alternate Arguments: run all three if the facts are there -
Run intoxication analysis either guilty, or acquittal on specific offence, guilty on general
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Mental disorder s.16 NCRMD available? Or alternatively, does the evidence negate mens rea? May have some outcome from intoxication
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Automatism non-mental disorder (BEST DEFENCE because results in a full acquittal) or alternatively mental disorder
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Conclude analysis with an argument on which is the best outcome, likely disposition
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Note: would you risk having your client subject to a lifetime of supervision for a less serious offence?
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Prosecution will likely argue for NCRMD if you run automatism
Mental Disorder Automatism vs. Non-Mental Disorder Automatism
What conditions have been recognized as non-mental disorder automatism? -
Concussion
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Sleep walking (whittled down from Parks): now recognized as a mental disorder
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Undiagnosed chronic insomnia
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Stroke, epileptic fit
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Hypoglycaemia
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Extraordinary psychological blow (starts with Rabey)
Rabey v the Queen 1980 SCC
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Accused violently assaulted the victim with a rock after being told he was “just a friend” (he had romantic interest in her)
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Issue: can a psychological blow ground a defence of non-mental disorder automatism?
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Held: development of the internal cause theory: dissociative conduct arising from the stresses of life will normally be attributed to an internal weakness/vulnerability and should be classified as a disease of the mind, not automatism
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BUT: where it is due to an extraordinary external event (shock) it should be dealt with under non-mental disorder automatism (External Cause Theory)
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Idea is that accused’s behavior is transient, accused not a danger to himself, commitment to health system unnecessary
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concern here: continuing danger (developed in Parks)
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Dissent: does not approve of this test, picks up on what becomes the continuing danger theory. Should concern ourselves with whether the condition is transient (unlikely to re-occur) then should be considered non-mental disorder automatism. BUT if it presents a chronic condition, then it should be NCRMD.
R v Parks 1992 SCC
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The accused attacked his parents in law, killing his mother and seriously injuring his father while sleepwalking. He drove to their house, then after the incident drove to the police station and said he had killed them. He had always had good relations with them, but had big life stresses at the time of the killing.
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Held: was a successful use of the defence full acquittal
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ALTHOUGH NOW SLEEPWALKING IS A MENTAL DISORDER: they held it was not, there was previous evidence of his sleepwalking, experts testified to his likelihood of being able to perform the acts while asleep
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Lamer: public safety issues here (how to insure he won’t do it again? Can we supervise him?)
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La Forest: discusses continuing danger theory (any condition likely to pose a danger to the public should be treated as NCRMD) and internal cause theory (speaks to the cause – suggests any condition stemming from psychological makeup should result in NCRMD, whereas external cause should result in non mental disorder automatism)
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Both approaches share common concern of public safety
note: changes in Luedecke (sleepwalking characterized as mental disorder automatism)
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