Mental Disorder and Automatism
Author | Kent Roach |
Pages | 311-351 |
311
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 di s-
order, is incapable of appreciating the nature and quality 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 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 respon-
sible by reason of mental disorder. If the cause of the automatism is
some other factor such as a blow to the head, the disposition is to ac-
quit 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
CRIMIN AL LAW312
or drugs, 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 establish the defences of both
intoxicated and non-mental disorder automatism on a balance 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 persons will be in the best position to adduce evidence
about the impairment of their mental processes.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 suffering from a mental disorder
and because of the stigma and lack of understanding of mental illness.
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 that 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 concerns 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 disorder defence under section
16 of the Charter acts in a morally involuntary 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 his or her free will. It is therefore consist-
ent with the principles of fundamental justice for a person whose
mental condition at the relevant time is covered by s. 16 Cr. C. not
to be criminally responsible under Canadian law. Convicting a per-
[1994] 3 SCR 63 [Daviault] (extreme intoxication defence); R v Stone, [1999] 2
2 R v Ruzic, [2001] 1 SCR 687 at paras 45–4 6. On such a basis, the mental d isor-
der defence could apply to regu latory offences as relati ng to the voluntary com-
mission of the proh ibited act. Autorité des marchés financ iers v Patry, 2015 QCCA
1933 at paras 63 and 81.
Mental Disord er and Automatism 313
son who acted involuntarily would unde rmine the foundations of the
criminal law and the integr ity of the judicial system.4
This statement suggests that Parliament could not repeal or restrict the
mental disorder defence without violating section 7 of the Charter.
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 th at
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 the proceedings before a verdict is rendered or to instruct
counsel to do so, and, in par ticular, unable on account of mental
disorder to
(a) understand the nature or object of the proceedings,
(b) understand t he possible consequences of the proceedings, or
(c) communicate w ith coun sel.5
The accused is presumed to be fit to stand trial, and unfitness 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, RSC 1985, c C-46, s 2 [Code].
6 Code, ibid, ss 672.22 & 672.23. The burden placed on the a ccused 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 CR (6th) 41 (Ont SCJ), aff’d on other ground s
2007 ONCA 770 [Morrissey]. As will be se en, similar burdens on t he accused to
establish t he mental disorder and automat ism defences have also bee n held to
be justified u nder the Charter.
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