Automatism: refers to unconscious, involuntary behavior, the state of a person who, thought capable of action, is not conscious of what he is doing.
Logistics of Automatism:
Crown must prove AR and MR beyond a reasonable doubt.
If A did the act, but did not do so voluntarily, A cannot be convicted.
Involuntariness: compelled by an external force; a reflex.
Automatism: A was in a state of “impaired consciousness” and had no voluntary control over his/her actions – the mind does not go with what is being done.
Three Types of Automatism:
Voluntary Intoxication: if automatism is proven on a BOP it supports an acquittal for all offences, except as restricted by s. 33.1.
Non-Mental Disorder (‘Non-Insane’): leads to an acquittal; can be found with sleepwalking instances; generally found with psychological trauma.
The Structure of Automatism:
There is a presumption of voluntariness meaning the accused must establish on a balance of probabilities that:
1. He or she was in an automatic state at the time of the offence; and
2. Must discharge the presumption that there is no evidence of a mental disorder.
There is also a presumption that automatism is caused by a mental disorder.
Is there a limit under section 11(d) of the Charter?
Does it limit your right to be presumed innocent? Yes.
Justified because people try to abuse it.
R v Rabey:A liked V; found a note in V’s binder expressing affection for other males and referring to the A as nothing; A took the note and dwelled on it a while; he took her to a gym the next day and hit her with a rock and choked her; raised the defense of non-insane automatism; proposed that at the relevant time the appellant was in a state where, though capable of action, was not conscious of what he was doing and was not insane; the experts say he was in a dissociative state; the question of whether or not this amounts to a “disease of the mind” is a question of law for the judge to decide;
The meaning of the word “automatism”, in any event so far as it is employed in the defence of non-insane automatism, is a term used to describe unconscious, involuntary behaviour, the state of a person who though capable of action is not conscious of what he is doing.
What is said here is that, although the defence of non-insane automatism is available to the appellant, he was not suffering from a disease of the mind and was therefore not insane and could not be committed to an institution.
The central question in deciding any case involving the defence of automatism is whether or not the accused was suffering from a disease of the mind. The opinions of psychiatrists go no further than characterizing the condition in which the appellant was found as being “a dissociative state” but it is clear that the question of whether or not such a state amounts to “a disease of the mind” is a question of law for the judge to determine.
In general, the distinction to be drawn is between a malfunctioning of the mind arising from some cause that is primarily internal to the accused, as opposed to a malfunctioning of the mind, which is the transient effect produced by some specific external factor and which does not fall within the concept of disease of the mind. The ordinary stresses and disappointments of life which are the common lot of mankind do not constitute an external cause constituting an explanation for a malfunctioning of the mind which takes it out of the category of a “disease of the mind”.
Here, it seems that the accused’s infatuation with the complainant had created an abnormal condition in his mind under the influence of which he acted unnaturally and violently to an imagined slight to which a normal person would not have reacted in the same manner. The confinement to an institution does not involve gross unfairness to the appellant for, under ss. 545 and 547 of the Criminal Code, the Lieutenant-Governor may order the discharge of the person found not guilty.
Appeal dismissed; Acquittal reversed and new trial ordered;
R v Stone (1999, SCC):charged with murder – convicted of manslaughter; A and V married; V was verbally abusing the A on the day in questions; A felt a “wooshing” sensation; A lost consciousness, blacked out and had no memory of the episode; A stabbed the V 47 times; A hid the body; A fled to Mexico, but later returned and turned himself in;
Expert evidence found that A experienced a dissociative episode caused by extreme verbal abuse – it was not a disease of the mind.
Crown argues that it was not automatism because of an absence of corroborating evidence.
Many individuals claim automatism.
It is suspicious that V is both the trigger and the victim.
There is a lack of corroborating evidence.
Experts agree the dissociative episodes are unlikely to reoccur.
Should the trial judge have proposed non-insane automatism to the jury?
There is a presumption that automatism is insane and the courts will only find non-insane automatism in the rarest of cases.
Trial judge does not consider weight of evidence, only if a jury properly instructed could convict.
What evidence is there of automatism? Is there an air of reality to the defense?
Look at relationship between psychiatric evidence and A’s account,
Look at A’s motive,
Look for a corroboration of evidence.
Mental disorder = disease of the mind.
How would a normal person have reacted the V’s provocation?
Experts do not believe the episode will reoccur.
Insane automatism results from a disease of the mind, and is completely covered by s.16. If it is successfully proven then a special verdict will be entered. On the other hand, non-insane automatism does not stem from a disease of the mind and, if successful, results in an acquittal of the defendant. He says that "true" automatism does not result from a disease of the mind; when that happens it is a mental disorder.
Bastarache then sets out the test for establishing automatism. First, the accused needs to establish a proper basis for the defence of automatism on a balance of probabilities.
If this burden is met, the judge must then decide whether mental disorder or non-mental disorder automatism should be left to the jury. The judge must decide whether there is a "disease of the mind" present. If one is present, then a special verdict will be entered as per s.16. If none is present, then only the defence of non-disorder automatism can be left to the jury. The question will then be if the accused acted involuntary on a balance of probabilities – if he did, then he is acquitted.
Stone was convicted of manslaughter.
R v Leudecke (2008, OCA): charge of sexual assault; A crashed on a couch at a party; he had been awake for about 20 hours and had drank too much; V also crashed in the same room; V awoke to A assaulting her; V said A looked dazed; A had experienced similar experiences before: he sleep walked as a child;
Expert evidence: parasomnia – not conscious activity; established by looking at brain waves during sleep; A also had a family history of parasomnia.
NOT a mental disorder – chance of reoccurrence is very small.
Air of reality to NONinsane automatism?
Not decided by precedent.
Internal cause test & genetic predisposition.
Continuing danger? (past acts, likelihood of recurrence of trigger, expert evidence)
Accused does NOT match the “common sense” profile of NCROAMD accused.
New mental disorder regime: NCROAMD – not that A is dangerous but potentially.
Engages individualized assessment and treatment disposition.
The respondent personifies one of the most difficult problems encountered in the criminal law. As a result of his parasomnia, he did a terrible thing, he sexually assaulted a defenceless, young victim. The reason for his conduct – automatism brought on by parasomnia – renders his actions non-culpable in the eyes of the criminal law. That very same explanation, however, makes his behaviour potentially dangerous and raises legitimate public safety concerns. An outright acquittal reflects the non-culpable nature of the conduct but does nothing to address the potential danger posed by the respondent’s condition. The Canadian criminal law responds to the public safety concerns by treating almost all automatisms as the product of a mental disorder leading not to an acquittal but to an NCR-MD verdict. That verdict acknowledges that the accused committed the prohibited act but is not criminally culpable. An NCR-MD verdict also permits an individualized post-verdict dangerousness assessment of the accused leading to a disposition tailored to the specifics of the individual case. On a proper application of the principles developed in the Canadian case law, the respondent’s automatism is properly characterized as a mental disorder and should have led to an NCR-MD verdict.
I would allow the appeal, set aside the acquittal and order a new trial. Pursuant to s. 686(8), I would limit the scope of the new trial to a determination of whether the respondent’s automatism should result in a verdict of not guilty or an NCR-MD verdict.
R v Parks (1992, SCC): charged with 1sts degree murder; A while sleeping, drove 23kms to in-laws home, and killed his mother in-law with a kitchen knife and seriously injured his father-in-law; he had excellent relations with his in-laws; A had significant stress in his life – large gambling debts, was found stealing from his employer and was let go; A had sleep problems and a family history of sleep problems;
Expert evidence: acts done while unconscious; sleep walking not a disease of the mind; no significant risk of recurrence; cure – sleep hygiene and avoid triggers.
The Crown did not raise any evidence to the contrary.
Trial judge: charged on non-insane automatism only; A acquitted; SCC agreed with charge.
Considerations:
1. Evidence of Automatism?
2. Air of Reality for Mental Disorder? Crown bears burden to establish mental disorder.
3. Internal Cause Factor? Family history.
Internal Cause Factor: The internal cause factor involves a comparison of D with a normal person. The comparison is objective and may be based on psychiatric evidence. The more the psychiatric evidence suggests that a normal person is susceptible to such a state, the more likely the trigger is external and the less likely the condition is a mental disorder. The reverse also holds true.
4. Continuing danger? Expert evidence says no.
5. Additional Factors? Easily feigned, administration of justice.
6. What to do with A? Majority in SCC: acquit. Lamer, J. says we should impose a supervisory order.
Parks was acquitted as 5 experts testified that he had been sleepwalking at the time of the incident.
R v Fontaine:
Fontaine worked "under the table" at a car garage. Renaud, a former employee, called the store and said "we're coming to get you, pigs". Dompierre, the eventual victim, came in to the store and told a co-worker that there was a hit out for Fontaine and himself. Having been informed of this, when he left work, Fontaine purchased a firearm. That evening, Fontaine saw Renaud outside his house. During the night, Fontaine smoked marijuana and at some point in the night he freaked out and shot bullets through his windows and doors, thinking that someone was breaking in to get him. The next day, Dompiere came into the garage to pay off a debt and Fontaine, thinking he was the hitman, shot him seven times, killing him. He turned himself into the police. He claimed that he was "frozen" at the time of the murder and only partially recollected it; he said that his actions were not his own.
Several different doctors testified, and stated that it was possible that Fontaine suffered from paranoia that was triggered by his habitual smoking of marijuana. This would make him delusional, however, it was hard to prove and relied mostly on his evidence. However, the doctor for the defence found conclusively that Fontaine did have a major psychological disorder and that he was unable to determine right from wrong.
The trial judge did not put mental-disorder automatism to the jury, who convicted him; the Court of Appeal overturned this and issued a new trial, stating that the defence should be left to the jury.
How much evidence is needed to pass the first step of the automatism defence as laid out in R v Stone?
Fish, writing for a unanimous court, states that it is not up to the judge to determine whether or not the evidence that was put forward is true. All that they should determine is if it is true, if it could used to properly raise the defence of automatism. The evidentiary burden on the defendant is proved if he or she shows some evidence, including expert testimony, which could lead to a properly instructed jury finding that the defence applies (the air of reality test). It is then up to the jury as finders of fact to determine if the evidence is true, and if the defence applies.
Applying that to the case at bar, the Court of Appeal was correct in ordering a new trial. The accused did raise sufficient evidence that, if it were true, could lead to a finding that the defence applies. Therefore, the jury should have been charged with the defence of mental disorder automatism.
The evidentiary burden is discharged if the accused raises sufficient evidence that there is an "air of reality" that the defence might succeed; the judge is not to consider the truth of the evidence when deciding if the accused has met the burden.
Evidential burden: is not a burden of proof but determines whether an issue should be left to the trier of fact; question of law; whether there is evidence upon which a jury, properly instructed, could convict.
Persuasive burden: determines how the issue should be decided; question of fact.
