Mental Disorder and Automatism

• Author: Kent Roach
• Pages: 279-316

279

CHA PTER 8

MENTAL DISORDER

AND AUTOM ATISM

Like intoxication, the defences of mental disorder and automatism

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

crimina lly responsible because their ment al 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 qualit y of a criminal

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

is not a pure acquittal, but rather a verdict of not crimin ally 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 a nd can

be subject to detention or release with conditions until he or she is

determined no longer to be a signif‌icant d anger to society. In Canada,

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

and has been revi sed by both the Supreme Court and Parliament to

take into account various Charte r concerns.

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

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

sciousness that results in involuntary behav iour. If that state is caused

by a mental disorder, the accused wi ll be held not criminally re spon-

sible by reason of mental disorder. If the cause of the automatism is

some other factor such as a blow to the head, the present disposition is

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

is a common law defence that is not codif‌ied. If the c ause of automa-

tism producing involuntary beh aviour is self-induced intoxication by

CR IMIN AL LAW280

alcohol or drugs, then the provisions of the intoxication defence dis-

cussed in chapter 7 w ill apply.

Section 16(3) of the Criminal Code requires t hat the mental disorder

defence be established on a balance of probabilities a nd the Supreme

Court has also required the accused to establi sh the defences of both

intoxicated and non-mental disorder automatism on a bala nce of prob-

abilities. This violates t he presumption of innocence in sect ion 11(d) of

the Charter by allow ing a person to be convicted even though there is a

reasonable doubt about guilt. Nevertheless, it has been held to be justi-

f‌ied as a reasonable limit on the presumption of innocence on the basis

that accused person s will be in the best position to adduce evidence

about the impairment of their mental proce sses.1

A. PROCEDURA L CONSIDERATIONS IN THE

MEN TA L DISORDER DEFENCE

1) Unf‌itness to Stand Trial

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

the crimin al 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 w rong. It is possible that a

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

will continue to suffer from th at condition and be found unf‌it to stand

trial. Conversely, a person who was sane when the cr ime was com-

mitted might subsequently suffer a severe menta l 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 dis order to conduct a defence at any

stage of the proceeding s before a verdict is rendered or to inst ruct

counsel to do so, and, in par ticular, unable on account of mental

disorder t o

(a) under stand the nature or object of the proce edings,

(b) understand t he possible conse quences of the proceedings, or

(c) c ommunicate w ith counsel.2

1 R. v. Chaulk, [1990] 3 S.C.R. 1303 [Chaulk] (mental disorder defence); R. v. Da-

viault, [1994] 3 S.C.R. 63 [Daviault] (extreme intoxication de fence); R. v. Stone,

[1999] 2 S.C.R. 290 [Stone].

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

Mental Disor der and Automatism 281

The accused is presumed to be f‌it to stand t rial, and unf‌itnes s must be

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

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

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

capacity to understand t he process and to communicate w ith counsel.”4

This standard is a legal one that focuses on the fairne ss of the trial

process and the accused’s ability to participate in the trial process and

not whether the accused clinical ly requires psychiatr ic treatment. A

person who satisf‌ies the mi nimal standards of the cognitive capacity

test may still be found at tr ial to have a mental disorder defence. Courts

of Appeal have found that accused who lack test imonial competence

and could not remember the crime were nevertheless f‌it to st and trial.

They have found that accused with the per manent brain injury caused

by fetal alcohol spectrum disorder were also f‌it to stand trial a s were ac-

cused who were delusional.5 Some lower courts, however, have argued

for higher standards th at would require accused persons be able to

make rational decisions e specially in relation to thei r defence.6

A person found unf‌it to stand tri al is subject to the same dispos-

ition 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 th is

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

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

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

unf‌it to stand tri al, the Crown is required to establish a prim a facie case

against the accused ever y two years until the accused is either found f‌it

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

facie cas e.7 These safeguards are designed to ens ure that a factually in-

3 Code, ibid., ss. 672.22 & 672.23. The burden plac ed on the accused when the

accused arg ues unf‌itness to stand t rial has been held to b e justif‌ied under

the Charter. R. v. Morrissey (2002), 8 C.R. (6th) 41 (Ont. S.C.J.), aff’d on other

grounds 2007 ONCA 770. As w ill be seen, simila r burdens on the accused to

establish t he mental disorder and automat ism defences have also bee n held to

be justif‌ied u nder the Charter.

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

(1992), 77 C.C.C. (3d) 551 (Ont. C.A.).

5 R. v. Morrissey, 2007 ONCA 770; R. v. Jobb, 2008 SKCA 156; R. v. Krivicic, 2011

ONCA 70 3.

6 R. v. Steele (1991), 63 C.C.C. (3d) 149 (Que. C.A.); see also Dusky v. United States,

362 U.S. 402 (1960).

7 Code, above note 2, s. 672.33. The unav ailability of an absolute di scharge for

a permanent ly unf‌it accused who does not pos e a signif‌icant threat to s ociety