Mental Disorder and Automatism

• Author: Kent Roach
• Profession: Faculty of Law and Centre of Criminology University of Toronto
• Pages: 245-277

Like intoxication, the defences of mental disorder and automatism

apply to accused who commit criminal acts, but who cannot be found

criminally responsible because their mental processes were impaired. It

has long been accepted that an offender who, because of a mental dis-

order, is incapable of appreciating the nature and quality of a criminal

act, or of knowing that it is wrong, should not be convicted. The ver-

dict is not a pure acquittal, but rather a verdict of not criminally

responsible on account of mental disorder or what used to be called not

guilty by reason of insanity. The accused does not automatically go free

and can be subject to detention or release with conditions until he or

she is determined no longer to be a significant danger to society. In

Canada, the mental disorder defence is set out in section 16 of the

Criminal Code, and has been revised by both the Supreme Court and

Parliament to take into account various Charter concerns.

The defence of automatism is more novel, and applies to an accused

who has committed a criminal act while in a state of impaired con-

sciousness that results in involuntary behaviour. If that state is caused

by a mental disorder, the accused will be held not criminally responsi-

ble by reason of mental disorder. If the cause of the automatism is some

other factor such as a blow to the head, an extraordinary psychological

shock, or a condition such as sleepwalking, the present disposition is to

acquit the accused. The defence of non-mental disorder automatism is

a common law defence that is not codified.

245

Mental Disorder

and Automatism

chapter 7

Section 16(3) of the Criminal Code requires that the mental disor-

der defence be established on a balance of probabilities and the

Supreme Court has also required the accused to establish the defences

of both drunken and non-mental disorder automatism on a balance of

probabilities.)

A. Procedural Considerations In The

Mental Disorder Defence

1) Unfitness to Stand Trial

The mental disorder defence applies to an accused who, at the time

that the criminal act was committed, suffered from a mental disorder

that made him or her incapable of appreciating the nature or quality of

the act or omission or of knowing that it was wrong. It is possible that

a person who suffered from a mental disorder at the time of the crime

will continue to suffer from that condition and be found unfit to stand

trial. Conversely, a person who was sane when the crime was commit-

ted might subsequently suffer a severe mental disorder that would

make it unfair to have a trial. Section 672.23(1) allows the court on its

own motion, or on an application from the accused or the prosecutor,

to determine whether an accused is fit to be tried. A person is unfit to

stand trial if he or she is:

unable on account of mental disorder to conduct a defence at any

stage of the proceedings before a verdict is rendered or to instruct

counsel to do so, and, in particular, unable on account of mental dis-

order to

(a) understand the nature or object of the proceedings,

(b) understand the possible consequences of the proceedings, or

(c) communicate with counsel.2

The accused is presumed to be fit to stand trial, and unfitness must be

proven on a balance of probabilities.3It is not necessary that a person

246 Criminal Law

1R. v. Daviault (1994), 93 C.C.C. (3d) 21 (S.C.C.); R. v. Stone (1999), 134 C.C.C.

(3d) 353 (S.C.C.) [Stone].

2Criminal Code of Canada, R.S.C. 1985, c. C-46, s. 2 [Code].

3Code, above note 2, ss. 672.22 and 672.23. The burden placed on the accused

when the accused argues unfitness to stand trial has been held to be justified

under the Charter. R. v. Morrissey (2002), 8 C.R. (6th) 41 (Ont. S.C.J.). As will

be seen, similar burdens on the accused to establish the mental disorder and

automatism defences have also been held to be justified under the Charter.

be able to act in his or her own best interests or to employ analytical

reasoning, but it is necessary that he or she have “limited cognitive

capacity to understand the process and to communicate with coun-

sel.”4A person who satisfies these minimal standards may still be found

at trial to have a mental disorder defence.

A person found unfit to stand trial is subject to the same disposi-

tion hearing as a person found not criminally responsible because of a

mental disorder. The difference, however, is that where an accused is

found unfit to stand trial, the Crown may not have proven beyond a

reasonable doubt that the accused committed the criminal act. For this

reason, judges have the power to postpone the determination of fitness

until the Crown has made its case and the accused has been found not

to be entitled to an acquittal or a discharge. If the accused is found

unfit to stand trial, the Crown is required to establish a prima facie case

against the accused every two years until the accused is either found fit

to be tried or is acquitted because the Crown cannot establish a prima

facie case.5These safeguards are designed to ensure that a factually

innocent accused is not subject to detention in the same manner as an

accused who committed the criminal act, but was found not guilty by

reason of a mental disorder.

2) Who Can Raise the Mental Disorder Defence?

Canadian courts have been more willing than British or American

courts to allow the prosecutor to raise the mental disorder defence. The

rationale is that society has an interest in not convicting an accused

who may not be responsible because of a mental disorder, but who has

chosen not to advance the insanity defence. This latitude presents dan-

gers that 1) the Crown could bolster a weak case by presenting evi-

dence of the accused’s mental disorder, and 2) an accused could be

exposed to indeterminate detention as a person found not guilty on

grounds of mental disorder when he or she wishes either to plead

guilty or to contest his or her innocence.

In R. v. Swain,6the Supreme Court found that the common law prac-

tice of allowing the Crown to raise the insanity defence violated the

accused’s right under section 7 of the Charter to control his or her own

defence. Lamer C.J. stated:

Mental Disorder and Automatism 247

4R. v. Whittle (1994), 92 C.C.C. (3d) 11 at 25 (S.C.C.).

5Code, above note 2, s. 672.33. The unavailability of an absolute discharge for a

permanently unfit accused who does note pose a significant threat to society

violates s.7 of the Charter. R. v. Demers 2004 SCC 46.

6 (1991), 63 C.C.C. (3d) 481 (S.C.C.) [Swain].