H. Automatism
| Author | Kent Roach |
| Profession | Faculty of Law and Centre of Criminology. University of Toronto |
| Pages | 302-314 |
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Automatism is a legal term that refers to unconscious or involuntary behaviour. The Supreme Court has defined automatism as "unconscious, involuntary behaviour, 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."89
More recently, the Court has noted that an accused acting as an automaton may not necessarily be actually unconscious, but that his or her consciousness must be so impaired that he or she "has no voluntary control over that action."90Those who act while sleepwalking or in a dazed condition from a concussion are examples of those who may be acting in an automatic state.
Automatism is related to the mental disorder defence because both involve conditions in which the accused cannot be held criminally responsible for his or her actions owing to a lack of mental capacity. If an accused leads evidence of automatism, the Crown can counter with evidence that the cause of the automatism was a mental disorder. Because an accused who acts in an automatic state will generally satisfy either arm of the mental disorder defence, the crucial issue in automatism cases is whether the cause of the automatism is a mental disorder or some other factor. If it is established that the cause of the automatism is a disease of the mind, the accused is held not criminally responsible by reason of a mental disorder and is subject to a disposition hearing
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and potential indeterminate detention or conditions as outlined above in relation to the mental disorder defence.
If the accused’s automatism is not caused by a mental disorder, however, then the verdict is a simple acquittal. In R. v. Bleta,91the Supreme Court affirmed the acquittal of an accused who, while in a dazed condition following a severe blow to his head, killed another person. The Court concluded that "the question of whether or not an accused person was in a state of automatism so as not to be legally responsible at the time when he committed the acts with which he is charged, is a question of fact"92for the jury. In Parks,93an accused successfully raised a defence of automatism after he stabbed two people, killing one of them. The cause of his automatism was sleepwalking, and the Supreme Court found this condition, on the evidence presented to it, not to be a disease of the mind. The accused was acquitted and was not subject to a disposition hearing or any form of treatment. Lamer C.J. expressed concerns about setting the accused "free without any consideration of measures to protect the public, or indeed the accused himself, from the possibility of a repetition of such unfortunate occurrences."94The majority of the Court held, however, that in the absence of a verdict of not criminally responsible on account of mental disorder, the courts did not have jurisdiction to make preventive orders.
The Supreme Court has also speculated that "anger conceivably could, in extreme circumstances, cause someone to enter a state of automatism in which that person does not know what he or she is doing, thus negating the voluntary component of the actus reus."95In such a circumstance, the Court noted that the appropriate disposition would be an acquittal. The possibility that the accused’s state of automatism may negate either the voluntary commission of the prohibited act or the required fault element makes it even more anomalous that, as will be discussed below, the accused has the burden of establishing the de-fence of automatism on a balance of probabilities.96Federal proposals to amend the Criminal Code, made in 1993 but not implemented, would have made an accused acquitted on the basis of non-insane automatism subject to the same disposition hearing and possible conditions or detention as a person held not criminally responsible by reason of mental disorder. If enacted, it would have for all
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practical purposes eliminated the present distinction between a defence of mental disorder or non-mental disorder automatism by eliminating the different dispositions for the two defences. As will be seen, the Supreme Court subsequently in Stone97narrowed the distance between the two defences by requiring the accused to establish the defence of non-mental disorder automatism on a balance of probabilities and by indicating that automatism will be presumed to be caused by mental disorder unless the accused establishes otherwise. Nevertheless, non-mental disorder automatism still results in an acquittal.
As late as 1992, the Supreme Court held that an accused who raised a defence of non-insane automatism was entitled to an acquittal if the evidence presented at trial raised a reasonable doubt as to whether the accused acted in a voluntary or conscious manner.98This was because such evidence would raise a reasonable doubt as to whether the accused acted with the required fault element (including the capacity to live up to an objective fault element) or, alternatively, whether the accused consciously and voluntarily committed the actus reus.
In the 1999 case of Stone,99however, the Supreme Court held that an accused claiming a non-mental disorder defence of automatism must establish on a balance of probabilities that he or she acted in an involuntary manner. The majority of the Court was concerned that an automatism defence might easily be faked under the traditional law that allowed the defence to go to the jury so long as the accused pointed to some evidence, that if believed, would raise a reasonable doubt about the voluntariness of his or her actions. The Court was also concerned about consistency in allocating burdens of proof given that the accused had the onus to establish on a balance of probabilities the Daviault de-fence of extreme intoxication producing a state akin to automatism and the mental disorder defence under section 16(3) of the Criminal Code.
The Court in Stone also concluded that the new persuasive burden on the accused to establish the automatism defence on a balance of probabilities also influenced the threshold decision by trial judges about whether there was a sufficient air of reality to justify instructing the jury about the defence. On the facts in Stone, the Court held that
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a trial judge was justified in not instructing the jury on the defence of non-mental disorder automatism because there was no "evidence upon which a properly instructed jury could find that the accused acted involuntarily on a balance of probabilities."100The Court indicated that even to satisfy this threshold air of reality burden, the accused will not only have to assert involuntariness, but also produce collaborating psychiatric evidence. Even these two factors will not necessarily suffice. Other relevant factors that should be considered include the severity of the triggering stimulus, the corroborating evidence of bystanders, the corroborating evidence of the accused being in states of automatism at other times, whether there was a motive for the crime, and whether the alleged trigger of automatism was also the victim of the crime. Finally, if the crime could be explained without reference to automatism, this suggested that the automatism defence should not be put to the jury. The Court not only imposed a novel persuasive burden on the accused to establish non-mental disorder automatism, but also raised the threshold air of reality burden considerably.
In a strong dissent joined by three other members of the Court, Binnie J. noted the virtues of the traditional law in giving the accused the benefit of a reasonable doubt about the voluntariness of his or her actions. He persuasively argued that the majority’s decision on the threshold air of reality test would deprive the accused of having claims of non-insane automatism considered by the jury. Stone indeed suggested a stringent test that may significantly reduce the number of claims of non-mental disorder automatism that are considered by the jury especially in cases in which the accused argues that he or she went into an automatic state because of an emotional blow.
In R. v. Fontaine,101the Supreme Court qualified Stone as it relates to the threshold air of reality burden but not the persuasive burden on the accused to establish automatism. Fish J. stated for an unanimous Court that "there is language in Stone that may be understood to invite an assessment by the trial judge as to the likely success of the defence. This in turn, may be seen to require the judge to weigh the evidence in order to determine whether it establishes, on a balance of probabilities, that the accused perpetrated the criminal act charged in a state of automatism." The Court, however, held that a trial judge who followed such an approach erred and that the factors set out in Stone were better used to guide the trier of fact in deciding whether the automatism defence had been established on a balance of probabilities. A trial judge should not weigh evi-
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dence or judge its credibility in deciding whether there is an air of reality that justifies leaving the defence to the jury. The question should rather be whether there is "in the record any evidence upon which a reasonable trier of fact, properly instructed in law and acting judicially, could conclude that the defence succeeds."102The Court stressed that judges should not lightly deny the accused an opportunity to have a jury consider the defence. In this case, the Court...
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