Mental Disorder and Automatism

• Author: Kent Roach
• Profession: Faculty of Law and Centre of Criminology.University of Toronto
• Pages: 285-323

285

CHA PTER 8

MENTAL DISORDER

AND AUTOM ATISM

Like intoxication, the defences of mental dis order and automatism ap-

ply to accused who commit crimin al 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 di s-

order, is incapable of appreciating the nature and qualit y of a criminal

act, or of knowing that it is w rong, 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 and 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 sponsi-

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

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

accused. The defence of non-mental disorder automatism is a common

law defence that is not codif‌ied. If the cause of automatism producing

involuntary behaviour is self-induced intoxication by alcohol or drugs,

CR IMIN AL LAW286

then the provisions of the intoxication defence discussed in Chapter 7

will apply.

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

defence be established on a balance of probabilities and 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

Both the mental disorder and automatism defences have f‌irm con-

stitutional foundations in section 7 of the Charter. This is important as

both defences can be unpopular because of public fears about violent

acts that people may commit while suf fering from a mental disorder

and because of the stigm a and lack of understanding of mental i llness.

The conviction of a person who acts in a state of automatism would

likely violate the principle of fundamental justice that prohibits con-

viction for physically involuntary conduct. In other words, it would be

unfair to convict a person for actions th at the person cannot physically

control.2 That said, there is a very clear t rend in the law to assume even

in the absence of a medical diagnosis that automatism is caused by

mental disorder. This trend is motivated by concern s about public pro-

tection, including the potentially indeterminate detention of a person

found not criminally responsible on account of mental disorder.

A person who qualif‌ies for a mental di sorder defence under section

16 of the Charter acts in a morally involuntar y manner because he or

she has no “moral control”3 over his or her actions. Such a person is

incapable of morally voluntar y conduct. The person’s actions are not

actually the product of hi s or her free will. It is t herefore consist-

ent with the pri nciples of fundamental ju stice for a person whose

mental condition at the releva nt time is covered by s. 16 Cr. C. not

to be crimin ally responsible under C anadian law. Convicting a p er-

1 R. v. Chaulk, [1990] 3 S.C.R. 1303 [Chaulk] (mental di sorder 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 R. v. Ruzic, [2001] 1 S.C.R. 687 at paras. 45–46.

3 R. v. Bouchard-Lebrun, 2011 SCC 58 at para. 47 [Bouchard-Lebrun].

Mental Disord er and Automatism 287

son who acted involuntarily would unde rmine the foundations of the

crimin al law and the integr ity of the judici al system.4

This statement suggests that Parliament could not repeal or restrict the

mental disorder defence without violating section 7 of the Charter.

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 d isorder 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 coun sel.5

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

proven on a balance of probabilities.6 It is not necessary that a person

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

4 Ibid. at para. 51.

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

6 Code, ibid., ss. 672.22 & 672.23. The burden placed on the acc used when the

accused arg ues unf‌itness to stand t rial has been held to be ju stif‌ied under

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

grounds 2007 ONCA 770 [Morrisse y]. As will be seen, simi lar burdens on the

accused to est ablish the mental dis order and automatism defences have a lso

been held to be just if‌ied under the Charter.