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 crim inal acts, but who cannot be found
crimina lly respon sible because their mental processe s were i mpaired.
It has long been accepted that an offender who, because of a mental dis-
order, is incapable of appreciating the nature and qual ity 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 cal led not gui lty by
reason of insan ity. 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 d isorder defence is set out i n sect ion 16 of the Criminal Code,
and has been revi sed by both the Supreme Court and Parliament to
take into account various Charte r 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 t hat state is
caused by a mental disorder, the accused will be held not criminally
responsible by reason of mental disorder. If t he cause of the automat-
ism is some other factor such a s a blow to the head, an extraordinary
psychological shock, or a condition such as sleepwalk ing, the present
disposition i s to acquit the accused. The defence of non-mental di sor-
der automatism is a common law defence that is not codified.
Mental Disor der and Automatism 257
Section 16(3) of the Crimi nal Co de requires that the mental disorder
defence be established on a b alance of probabilit ies a nd t he Supreme
Court ha s 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 ment al disorder defence applies to an accused who, at the time
that the crim inal act was committed, suffered from a mental disorder
that made him or her incapable of appreciating the nature or qualit y of
the act or omission or of knowing that it was wrong. It is possible that
a person who suf fered from a mental disorder at t he time of t he crime
will continue to suf fer from that condition and be found unfit to stand
trial. Conversely, a person who was sane when the crime was com-
mitted might subsequently su ffer a severe mental disorder that would
make it unfair to have a trial. Section 672.23(1) allows the court on it s
own motion, or on an application from the accused or t he 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 particula r, un able on account of mental
disorder to
(a) underst and the nature or object of the proce edings,
(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 tr ial, and unfitness must be
proven on a balance of probabilit ies.3 It is not necessary th at a person
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.
CRIMIN AL LAW258
be able to act in hi s 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 t he 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 heari ng as a pers on found not crimina lly responsible because of
a menta l d isorder. The difference, however, is that where an accused
is found unfit to stand t rial, 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 ha s made its case and t he accused has been found not
to be entitled to an acquittal or a dis charge. 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 comm itted the cr iminal 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 Cour t found Parlia-
ment h ad jurisdiction under the d ivision of powers to legislate with
respect to those unfit to stand trial because of concerns about try ing
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 puni sh the accused. The Court did, how-
ever, find the unfitness to stand trial scheme violated sect ion 7 of the
Charter because it did not provide for an absolute discharge for an ac-
cused who is per manently 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
6 Demers, ibid.
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