Mental Disorder and Automatism

AuthorKent Roach
Like intoxication, the defences of mental disorder and automatism
apply 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 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 disposit ion is to ac-
quit the accused. The defence of non-mental disorder automatism is a
common law defence that is not codif‌ied. If the caus e of automatism
producing involuntary behav iour is self-induced intoxication by alcohol
or drugs, then the provisions of the intoxication defence discussed in
Chapter 7 wi ll 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 SCR 1303 [Chaulk] (mental disorder defence); R v Daviault,
[1994] 3 SCR 63 [Daviault] (extreme intoxication defence); R v Stone, [1999] 2
SCR 290 [Stone].
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.
3 R v Bouchard-Lebrun, 2011 SCC 58 at para 47 [Bouchard-Lebrun].
Mental Disord er and Automatism 313
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.
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, 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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