Mental Disorder and Automatism

• Author: Kent Roach
• Profession: Faculty of Law and Centre of Criminology. University of Toronto
• Pages: 256-290

256

CHAPTER 8

MENTAL DISORDER

AND AUTOMATISM

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 verdict

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 de-

termined 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 concern s.

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

cused who has committed a criminal act while in a state of impaired

consciousness that results in involuntary behaviour. If that state is

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

responsible by reason of mental disorder. If the cause of the automat-

ism 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 disor-

der automatism is a common law defence that is not codif‌ied.

Mental Disor der and Automatism257

Section 16(3) of the Crimi nal Co de requires that the mental disorder

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 prob-

abilities.1

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 com-

mitted 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 t he proceedings before a verdict is rendered or to instruct

counsel to do so, and, in particular, un able on account of mental

disorder to

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

(b) understand the pos sible consequences of the proceedings, or

(c) communicate w ith counsel.2

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

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

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

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

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

3 Code, ibid., ss. 672.22 & 672.23. The burden pl aced 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.). As will be seen,

similar b urdens on the accused to est ablish the mental disord er and automatism

defences have al so been held to be justif‌ied under t he Charter.

CRIMINAL LAW258

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 cap-

acity to understand the process and to communicate with counsel.”4 A

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 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 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 ca se

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.5 These 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.

A person with Down’s Syndrome accused of sexual assault who was

found unf‌it to stand trial and released after two months challenged the

constitutionality of the provisions. The Supreme Court found Parlia-

ment had jurisdiction under the division of powers to legislate with

respect to those unf‌it to stand trial because of concerns about trying

the accused and also about preventing crime by the mentally disor-

dered accused. The Court also rejected the accused’s argument that

subjecting him to review board proceedings violated the presumption

of innocence under section 11(d) of the Charter given that the aim of re-

view proceedings was not to punish the accused. The Court did, how-

ever, f‌ind the unf‌itness to stand trial scheme violated section 7 of the

Charter because it did not provide for an absolute discharge for an ac-

cused who is permanently unf‌it to stand trial and who did not present

a continuing danger to the public. The Court ruled that the scheme was

overbroad to the objectives of social protection by effectively providing

that such a person could only be released subject to indeterminate con-

ditions.6 Parliament responded to this ruling with a new provision that

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

5 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

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

6 Demers, ibid.