Mental Disorder and Automatism

• Author: Kent Roach
• Pages: 326-366

326

CHA PTER 8

MENTAL DISORDER

AND AUTOM ATISM

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

to accused who commit crimi nal 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 crimin al 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 crimina lly 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 result s in involuntary behaviour. If that state is c aused by a

mental disorder, the accused wi ll be held not criminally re sponsible by

reason of mental disorder. If the cause of t he 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 t he pro-

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

Mental Disord er and Automatism 327

Section 16(3) of the Criminal Code requires t hat the mental disorder

defence be established on a balance of probabilities a nd 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 pre sumption 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 dis order 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 stigm a and lack of understanding of mental il lness. 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 clea r trend in the law to assume even in t he

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

crimina lly 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 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 h is or her free will. It is therefore consistent

with the pri nciples of fundamental ju stice for a person whose men-

tal condition at the releva nt 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].

CR IMIN 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

MEN TA L DISORDER DEFENCE

1) Unf‌itness to Stand Trial

The mental disorder defence applies to an accused who, at the time

that the crim inal act was committed, suered f rom a mental disorder

that made them incapable of appreciating t he nature or quality of the

act or omission or of knowing that it was w rong. 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 cr ime 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 b efore a verdict is rendered or to instr uct counsel

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

(a) u nderstand the nature or object of t he proceedings,

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

(c) commun icate with cou nsel.5

The accused is presumed to be f‌it to stand t rial, 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 intere sts or to employ analytical rea-

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

4 Ibid at para 51.

5 Criminal Code, RSC 1985, c C-46, s 2 [Code].

6 Co de, 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.