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-

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

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.