Mental Disorder and Automatism

• Author: Kent Roach
• Pages: 326-366

326

CHAPTER 8

MENTAL DISORDER

AND AUTOMATISM

Like intoxication, the defences of mental dis order and automatism apply

to accused who commit criminal acts, but who cannot be found crim-

inally respon sible because their ment al processes were impaired. It has

long been accepted that an oender who, because of a mental disorder,

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 they are deter-

mined 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 revi sed by both the Supreme Court and Parliament to take into

account var ious Charter 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 conscious-

ness 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 automatism is some other

factor such as a blow to the head, the disposit ion is to acquit 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 or drugs, then the pro-

visions of the intoxication defence discussed in Chapter 7 will apply.

Mental Disord er and Automatism327

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 suer ing 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 ju stice that prohibits conviction 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 trend 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 protection,

including the potentially i ndeterminate 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 they

have no “moral control”3 over their 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 consistent

with the principles of fundamental justice for a person whose men-

tal condition at the relevant time is covered by s.16Cr.C. not to be

crimin ally responsible under Can adian law.Convicting a person who

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 is-

order defence could apply to regu latory oences as relati ng to the voluntary

commission of t he prohibited act. Autorité des marchés f‌ina nciers c Patry, 2015

QCCA 1933 at paras 63 and 81.

3 R v Bouchard-Lebrun, 2011 SCC 58 at para 47 [Bouchard-Lebrun].

CRIMIN AL LAW328

acted involuntarily would unde rmine the foundations of the cr iminal

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

that the criminal act was committed, suered from a mental disorder

that made them 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 suered from a mental disorder at the time of the crime

will continue to suer 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er 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 they are

unable on account of mental disorder t o conduct a defence at any stage

of the proceedings before a verdict is rendered or to instr uct counsel

to do so, and, in particular, unable on account of mental disorder to

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

(b) understand the possible consequences of t he proceedings, or

(c) communicate with counsel.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 their own best interests or to employ analytical rea-

soning, but it is necessary that they have “limited cognitive capacity to

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 t he accused 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), a’d on other grounds

2007 ONCA 770 [Morrissey]. As wil l be seen, similar burden s on the accused to

establish t he mental disorder and automat ism defences have also been h eld to

be justif‌ied u nder the Charter.