R. v. Luedecke (J.),

• Jurisdiction: Ontario
• Judge: Doherty, Borins and Lang, JJ.A.
• Neutral Citation: 2008 ONCA 716
• Citation: (2008), 269 O.A.C. 1 (CA),2008 ONCA 716,93 OR (3d) 89,236 CCC (3d) 317,61 CR (6th) 139,269 OAC 1,269 O.A.C. 1,(2008), 269 OAC 1 (CA),93 O.R. (3d) 89
• Date: 07 February 2008
• Court: Court of Appeal (Ontario)

R. v. Luedecke (J.) (2008), 269 O.A.C. 1 (CA)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. OC.049

Her Majesty the Queen (appellant) v. Jan Luedecke (respondent)

(C44844; 2008 ONCA 716)

Indexed As: R. v. Luedecke (J.)

Ontario Court of Appeal

Doherty, Borins and Lang, JJ.A.

October 17, 2008.

Summary:

The accused was charged with sexual assault. From the outset, he acknowledged that he engaged in non-consensual sex with the victim. He claimed that he was asleep when it occurred, was unaware of what was happening, and unable to control his actions. The accused advanced only one defence, non-mental disorder automatism. The Crown took the position that the accused had not established that his actions were involuntary and he was guilty of sexual assault. Alternatively, the Crown argued that if the accused's actions were involuntary, those actions were the product of a mental disorder and the accused should be found not criminally responsible on account of mental disorder (NCR-MD). The trial judge held that the accused's actions were involuntary and not the product of a mental disorder. He acquitted the accused. The Crown appealed.

The Ontario Court of Appeal allowed the appeal, set aside the acquittal and ordered a new trial. Pursuant to s. 686(8) of the Criminal Code, the court limited the scope of the new trial to a determination of whether the accused's automatism should result in a verdict of not guilty or an NCR-MD verdict.

Criminal Law - Topic 93.80

General principles - Mental disorder - Dispositions by court or review board - General - The Ontario Court of Appeal reviewed the law on automatism, distinguishing between non-mental disorder automatism and mental disorder automatism - The court discussed parasomnia, criminal responsibility and the test in R. v. Parks (1990, Ont. C.A.) - The court also discussed the Supreme Court of Canada's reconsideration of automatism in R. v. Stone (1999) - See paragraphs 53 to 93 - The court stated that "The strong preference for an NCR-MD [not criminally responsible on account of mental disorder] verdict expressed in Stone is explained in part by the very different treatment accorded those found NCR-MD compared to the historical treatment provided to those found not guilty by reason of insanity, as was the case at the time of the trial in Parks. Prior to 1991, persons found not guilty by reason of insanity were detained indefinitely at the pleasure of the Lieutenant Governor in Council. The provisions of Part XX.I of the Criminal Code not only disposed of the insanity nomenclature but completely changed the post-verdict treatment of those found NCR-MD." - Section 672.54 governed the dispositions available for persons found NCR-MD - As interpreted in Winko (1999, S.C.C.), s. 672.54 required the absolute discharge of anyone found NCR-MD unless the court or the Review Board determined that the individual posed "a significant threat to the public" - The court stated that "A combined reading of Stone and Winko yields a comprehensive response to automatism claims. At the pre-verdict stage, social defence concerns dominate. Those concerns focus on the risk posed by the potential recurrence of the conduct in issue. Where that risk exists, the risk combined with the occurrence of the conduct that led to the criminal proceedings will almost always justify further inquiry into the accused's dangerousness so as to properly protect the public. In the post-verdict stage, however, the emphasis shifts to an individualized assessment of the actual dangerousness of the person found NCR-MD. Where that personalized assessment does not demonstrate the requisite significant risk, the person found NCR-MD must receive an absolute discharge. Even where a significant risk exists, the disposition order must be tailored to the specific circumstances of the individual and must, to the extent possible, minimize the interference with that individual's liberty." - See paragraphs 94 to 102.

Criminal Law - Topic 93.80

General principles - Mental disorder - Dispositions by court or review board - General - [See Criminal Law - Topic 93.93 ].

Criminal Law - Topic 93.93

General principles - Mental disorder - Dispositions by court or review board - Evidence (incl. admissibility) - The Ontario Court of Appeal stated that "If an accused's automatism is rooted in a mental disorder, the accused will not be acquitted but will be found NCR-MD [not criminally responsible on account of mental disorder]. Under Part XX.I of the Criminal Code, a person found NCR-MD is subject to a post-verdict disposition hearing before either the trial judge or a Review Board. Section 672.54 of the Criminal Code lists the dispositions available. These range from an absolute discharge to confinement in a hospital. A person found NCR-MD must be granted an absolute discharge if the court or review board is not satisfied that he or she poses a 'significant risk'" - See paragraph 59 - "The risk determination required by s. 672.54 cannot not be based on speculation or assumptions about how persons with mental disorders behave. There must be evidence establishing the significant risk. That risk must be a real risk of criminal conduct involving physical or psychological harm to individuals in the community. A risk of trivial harm or miniscule risk of significant harm will not suffice to deprive the individual of his or her liberty" - See paragraph 98.

Criminal Law - Topic 97

General principles - Mental disorder - Insanity, automatism, etc. - What constitutes "insanity" (incl. "not criminally responsible due to mental disorder") - [See first and second Criminal Law - Topic 103 ].

Criminal Law - Topic 103

General principles - Mental disorder - Insanity, automatism, etc. - Automatism or noninsane automatism - The Ontario Court of Appeal reviewed the law on automatism, distinguishing between non-mental disorder automatism and mental disorder automatism - The court discussed parasomnia, criminal responsibility and the test in R. v. Parks (1990, Ont. C.A.) - See paragraphs 53 to 79 - The court also discussed the Supreme Court of Canada's reconsideration of automatism in R. v. Stone (1999) - The court stated that "Stone alters the approach to the characterization of automatism as non-mental disorder automatism or mental disorder automatism in at least two significant ways. First, after Stone the trial judge must begin from the premise that the automatism is caused by a disease of the mind and look to the evidence to determine whether it convinces him or her that the condition is not a 'disease of the mind'. This approach is in direct contrast with Parks where the non-mental disorder automatism claim succeeded because the Crown failed to prove that the condition was caused by a disease of the mind. Second, although Stone accepts the multi-factored approach to the policy component of the characterization of the automatism set out in Parks, it refocuses the continuing danger aspect of that approach. After Stone, in evaluating the risk of repetition and hence the danger to the public, trial judges must not limit their inquiry only to the risk of further violence while in an automatistic state. Rather, trial judges must examine the risk of the recurrence of the factors or events that triggered the accused's automatistic state. The majority position in Stone signals a strong preference for a finding of NCR-MD [not criminally responsible on account of mental disorder] in cases where an accused establishes that he or she was in a disassociative state and acted involuntarily. Social defence concerns, inevitably present in such cases, must to a large degree drive the analysis in automatism cases after Stone." - See paragraphs 80 to 93.

Criminal Law - Topic 103

General principles - Mental disorder - Insanity, automatism, etc. - Automatism or noninsane automatism - The accused was charged with sexual assault - He acknowledged having non-consensual sex with the victim - He claimed that he was asleep when it occurred, was unaware of what was happening, and unable to control his actions - The accused advanced only one defence, non-mental disorder automatism - The Crown took the position that the accused had not established that his actions were involuntary - Alternatively, his actions were the product of a mental disorder and he should be found not criminally responsible on account of mental disorder - The trial judge, relying mainly on the defence expert's (Dr. Shapiro's) uncontradicted evidence, held that the accused's actions were involuntary and not the product of a mental disorder - He acquitted the accused - The Crown appealed - The Ontario Court of Appeal allowed the appeal, set aside the acquittal and ordered a new trial - The court held that "the trial judge failed to appreciate the significance of the hereditary nature of the respondent's condition, failed to give effect to the respondent's well established history of sexsomnia, and failed to appreciate the significance of the strong likelihood of the recurrence of the events that triggered his sexsomnia. The trial judge also failed to appreciate that Dr. Shapiro's medical opinion that parasomnia did not constitute a mental disorder was largely irrelevant to the determination of whether, for policy reasons, the condition should be classified legally as a disease of the mind. These errors led to a failure to apply the proper legal standard when characterizing the respondent's automatism." - See paragraphs 103 to 119.

Criminal Law - Topic 103

General principles - Mental disorder - Insanity, automatism, etc. - Automatism or noninsane automatism - [See first Criminal Law - Topic 93.80 ].

Criminal Law - Topic 107

General principles - Mental disorder - Insanity, automatism, etc. - Evidence (incl. burden of proof) - [See first Criminal Law - Topic 103 ].

Criminal Law - Topic 108

General principles - Mental disorder - Insanity, automatism, etc. - Procedure - The accused was charged with sexual assault - He acknowledged that he engaged in non-consensual sex with the victim - He claimed that he was asleep when it occurred, was unaware of what was happening, and unable to control his actions - The accused advanced only one defence, non-mental disorder automatism - The Crown took the position that the accused had not established that his actions were involuntary - Alternatively, the accused's actions were the product of a mental disorder and the accused should be found not criminally responsible on account of mental disorder (NCR-MD) - The trial judge, relying mainly on the defence expert's uncontradicted evidence, held that the accused's actions were involuntary and not the product of a mental disorder - He acquitted the accused - The Crown appealed - The Ontario Court of Appeal allowed the appeal and set aside the acquittal - On a proper application of the principles taken from R. v. Stone (1999, S.C.C.) to the facts as found by the trial judge, a NCR-MD verdict was the only verdict available in law - However, the court lacked jurisdiction to substitute that verdict - Section 686(4) of the Criminal Code provided for only two remedies on appeals from acquittals entered by judges sitting without juries - The court could order a new trial, or enter a conviction - Obviously this was not a case for a conviction - A new trial was the only possible remedy - However, the court had the power under s. 686(8) to limit the scope of the new trial to a determination of whether the accused's automatism should result in a verdict of not guilty or an NCR-MD verdict, where the order did not interfere with any of the accused's rights and it was otherwise consistent with the demands of justice - See paragraphs 120 to 140.

Criminal Law - Topic 4860

Appeals - Indictable offences - Grounds of appeal - Question of law or error of law - The accused was charged with sexual assault - He acknowledged having non-consensual sex with the victim - He claimed that he was asleep when it occurred, was unaware of what was happening, and unable to control his actions - The accused advanced only one defence, non-mental disorder automatism - The Crown took the position that the accused had not established that his actions were involuntary - Alternatively, his actions were the product of a mental disorder and he should be found not criminally responsible on account of mental disorder - The trial judge held that the accused's actions were involuntary and not the product of a mental disorder - He acquitted the accused - The Crown appealed - The accused argued that the Crown's arguments were really an attack on the trial judge's application of the undisputed definition of mental disorder to the evidence, and thus a question of mixed fact and law which was beyond the Crown's right of appeal - The Crown did not take issue with any of the facts found by the trial judge but directed its arguments at the legal effect of those fact findings - The Crown contended that on those findings the trial judge was obligated as a matter of law to find that the accused's condition constituted a disease of the mind - The Ontario Court of Appeal held that the appeal raised a question of law - See paragraphs 46 to 51.

Criminal Law - Topic 4975

Appeals - Indictable offences - Powers of Court of Appeal - Appeal from an acquittal - [See Criminal Law - Topic 108 ].

Criminal Law - Topic 4989.2

Appeals - Indictable offences - Powers of Court of Appeal - Power to limit scope of new trial - [See Criminal Law - Topic 108 ].

Evidence - Topic 7012

Opinion evidence - Expert evidence - General - Basis for opinion - The accused was charged with sexual assault - He acknowledged having non-consensual sex with the victim - He claimed that he was asleep when it occurred, was unaware of what was happening, and unable to control his actions - The accused advanced only one defence, non-mental disorder automatism - The Crown took the position that the accused had not established that his actions were involuntary - Alternatively, his actions were the product of a mental disorder and he should be found not criminally responsible on account of mental disorder - The trial judge, relying mainly on the defence expert's (Dr. Shapiro's) uncontradicted evidence, held that the accused's actions were involuntary and not the product of a mental disorder - He acquitted the accused - The Crown appealed on the ground, inter alia, that the trial judge misused part of Dr. Shapiro's evidence - Dr. Shapiro referred to statements made to him by a former girlfriend of the accused - Dr. Shapiro used the information she provided, along with much other material, in assessing the reliability of information provided by the accused, and in ultimately forming his medical opinion - The Crown argued that the trial judge misused the information provided by the third party and treated it as evidence that the events described by the girlfriend had in fact occurred - The Ontario Court of Appeal rejected this ground of appeal - The expert was entitled to use the comments made to him by the accused's former girlfriend in assessing the reliability of the information the accused provided to him and in ultimately formulating his opinion (R. v. Lavallee (1990, S.C.C.)) - Nothing in the trial judge's reasons suggested that the trial judge misused any of the expert's evidence - See paragraphs 8 and 9.

Cases Noticed:

R. v. Lavallee (1990), 108 N.R. 321; 67 Man.R.(2d) 1; 55 C.C.C.(3d) 97 (S.C.C.), refd to. [para. 9].

R. v. Stone (B.T.) (1999), 239 N.R. 201; 123 B.C.A.C. 1; 201 W.A.C. 1; 134 C.C.C.(3d) 353 (S.C.C.), appld. [para. 44].

R. v. Rabey (1977), 37 C.C.C.(2d) 461 (Ont. C.A.), affd. (1980), 32 N.R. 451; 54 C.C.C.(2d) 1 (S.C.C.), refd to. [para. 45].

Director of Investigation and Research, Competition Act v. Southam Inc. et al. (1997), 209 N.R. 20; 144 D.L.R.(4th) 1 (S.C.C.), refd to. [para. 48].

R. v. Morin (K.M.) (1992), 142 N.R. 141; 131 A.R. 81; 25 W.A.C. 81; 76 C.C.C.(3d) 193 (S.C.C.), refd to. [para. 48].

R. v. Araujo (A.) et al. (2000), 262 N.R. 346; 143 B.C.A.C. 257; 235 W.A.C. 257; 149 C.C.C.(3d) 449 (S.C.C.), refd to. [para. 50].

R. v. Parks (1990), 39 O.A.C. 27; 56 C.C.C.(3d) 449 (C.A.), affd. (1992), 140 N.R. 161; 55 O.A.C. 241; 75 C.C.C.(3d) 287 (S.C.C.), consd. [para. 51].

Finegan v. Heywood, [2000] S.C.C.R. 460 (Scot. H.C.), refd to. [para. 53, footnote 3].

R. v. Daviault (H.) (1994), 173 N.R. 1; 64 Q.A.C. 81; 93 C.C.C.(3d) 21 (S.C.C.), refd to. [para. 53].

Bratty v. Northern Ireland (Attorney General), [1963] 3 All E.R. 523 (H.L.), refd to. [para. 54].

R. v. Burr, [1969] N.Z.L.R. 736 (C.A.), refd to. [para. 54].

R. v. Revelle (1979), 48 C.C.C.(2d) 267 (Ont. C.A.), affd. (1981), 39 N.R. 485; 61 C.C.C.(2d) 575 (S.C.C.), refd to. [para. 58].

Attorney General's Reference (No. 2 of 1992), [1994] Q.B. 91 (C.A.), refd to. [para. 58].

R. v. Falconer (1990), 171 C.L.R. 30 (Aust. H.C.), refd to. [para. 58].

R. v. Cottle, [1958] N.Z.L.R. 999 (C.A.), refd to. [para. 58].

Winko v. Forensic Psychiatric Institute (B.C.) et al. (1999), 241 N.R. 1; 124 B.C.A.C. 1; 203 W.A.C. 1; 135 C.C.C.(3d) 129 (S.C.C.), consd. [para. 59].

R. v. Cooper (1979), 31 N.R. 234; 51 C.C.C.(2d) 129 (S.C.C.), refd to. [para. 61].

R. v. Tolson (1889), 23 Q.B.D. 168 (C.C.R.), refd to. [para. 64].

R. v. Burgess, [1991] 2 All E.R. 769 (C.A.), refd to. [para. 67, footnote 8].

Canada v. Campbell, [2000] O.T.C. 435; 35 C.R.(5th) 314 (Sup. Ct.), refd to. [para. 92].

R. v. Balenko, [2000] Q.J. No. 717 (C.Q.), refd to. [para. 92].

R. v. Romas (2002), 6 M.V.R.(5th) 101 (B.C. Prov. Ct.), refd to. [para. 92].

Romas, Re, [2001] B.C.R.B.D. No. 66 (B.C. Rev. Bd.), refd to. [para. 102].

R. v. Cassidy (1989), 100 N.R. 321; 36 O.A.C. 1; 50 C.C.C.(3d) 193 (S.C.C.), refd to. [para. 120].

R. v. Thomas (A.F.) (1998), 233 N.R. 266; 115 B.C.A.C. 161; 189 W.A.C. 161; 130 C.C.C.(3d) 225 (S.C.C.), consd. [para. 122].

R. v. Wells (T.A.) (2004), 361 A.R. 256; 339 W.A.C. 256; 193 C.C.C.(3d) 43 (C.A.), refd to. [para. 122].

R. v. Warsing (K.L.) (1998), 233 N.R. 319; 115 B.C.A.C. 214; 189 W.A.C. 214; 130 C.C.C.(3d) 259 (S.C.C.), consd. [para. 125].

R. v. Yelle (J.) et al. (2006), 397 A.R. 287; 384 W.A.C. 287; 213 C.C.C.(3d) 20; 2006 ABCA 276, consd. [para. 127].

R. v. Provo (1989), 97 N.R. 209; 59 Man.R.(2d) 1; 49 C.C.C.(3d) 417 (S.C.C.), refd to. [para. 131].

R. v. D.W.P. - see R. v. Provo.

R. v. Pearson (E.) (1998), 233 N.R. 367; 130 C.C.C.(3d) 293 (S.C.C.), refd to. [para. 131].

R. v. Gorecki (No. 2) (1976), 32 C.C.C.(2d) 135 (Ont. C.A.), consd. [para. 132].

R. v. Wade (W.) (1994), 69 O.A.C. 321; 89 C.C.C.(3d) 39 (C.A.), revd. (1995), 182 N.R. 387; 82 O.A.C. 182; 98 C.C.C.(3d) 97 (S.C.C.), consd. [para. 132].

R. v. MacKay (J.D.) (2005), 343 N.R. 218; 293 N.B.R.(2d) 1; 762 A.P.R. 1; 203 C.C.C.(3d) 289; 2005 SCC 79, refd to. [para. 135].

R. v. Druken (J.K.) (2002), 211 Nfld. & P.E.I.R. 219; 633 A.P.R. 219; 164 C.C.C.(3d) 115 (N.L.C.A.), refd to. [para. 138].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 672.54 [para. 59]; sect. 676(1)(a) [para. 122]; sect. 686(1)(d) [para. 125]; sect. 686(4) [para. 123]; sect. 686(8) [para. 130].

Authors and Works Noticed:

Ashworth, Andrew, Principles of Criminal Law (5th Ed. 2006), pp. 98, 99, 100 [para. 56].

Brudner, Alan, Insane Automatism: A Proposal for Reform (2000), 45 McGill L.J. 65, pp. 68 [para. 62, footnote 4]; 84 [para. 63, footnote 5].

Cowley, David, Sleepwalking and Insanity under the McNaghten Rules (1991), 55 J. Crim. L. 435, generally [para. 67, footnote 8].

Ebrahim, Irshaad, Wilson, William, Marks, Richard, Peacock, Kevin W., and Fenwick, Peter, Violence, Sleepwalking and the Criminal Law: (1) The Medical Aspects (2005), Crim. L.R. 601, generally [para. 69, footnote 9]; p. 612 [para. 117].

Grant, Isabel, and Spitz, Laura, R. v. Parks: Case Comment (1993), 72 C.B.R. 224, generally [para. 88, footnote 11]; p. 237 [para. 66, footnote 7].

Grant, Isabel, Developments in Substantive Criminal Law: The 1998-99 Term (2000), 11 S.C.L.R.(2d) 282, pp. 295 [para. 88, footnote 11]; 299 [para. 63, footnote 5].

Healy, Patrick, Automatism Confined (2000), 45 McGill L.J. 87, p. 92 [para. 63, footnote 5].

MacKay, Irene, The Sleepwalker is Not Insane (1992), 55 Mod. L. Rev. 714, generally [para. 67, footnote 8]; pp. 715, 716 [para. 65].

MacKay, Ronald D., and Mitchell, Barry J., Sleepwalking Automatism and Insanity (2006), Crim. L. Rev. 901, p. 903 [para. 32, footnote 1].

Morris, Norval, Somnambulistic Homicide: Ghosts, Spiders and North Koreans (1951), 5 Res. Jud. 29, generally [para. 66, footnote 6].

Paciocco, David, Death by Stone-ing: The Demise of the Defence of Simple Automatism (1999), 26 C.R.(5th) 273, pp. 281 [para. 91]; 284 [para. 63, footnote 5].

Ridgway, Peter, Sleepwalking - Insanity or Automatism (1996), 3 Murdoch U.E.J.L. 4, generally [para. 69, footnote 9]; para. 4 [para. 65].

Smith, John Cyril, and Hogan, Brian, Criminal Law (11th Ed. 2005), pp. 44, 45, 46 [para. 56].

Stuart, Donald, Canadian Criminal Law: A Treatise (5th Ed. 2007), pp. 107 to 110 [para. 56]; 127 [para. 63, footnote 5].

Virgo, Graham, Sanitizing Insanity - Sleepwalking and Statutory Reform (1991), 50 Cambridge L.J. 386, p. 387 [para. 66, footnote 6].

Williams, Glanville, Textbook of Criminal Law (2nd Ed. 1983), p. 665 [para. 65].

Wilson, William, and Fenwick, P.B., Violence, Sleepwalking and the Criminal Law: (2) The Legal Aspects (2005), Crim. L.R. 614, pp. 615, 616 [para. 54].

Yeo, Stanley, Putting Voluntariness Back Into Automatism (2001), 32 V.U.W.L.R. 15, generally [para. 56].

Counsel:

Kim Crosbie, for the appellant;

Frank Addario and Jonathon Dawe, for the respondent.

This appeal was heard on February 7, 2008, by Doherty, Borins and Lang, JJ.A., of the Ontario Court of Appeal. Doherty, J.A., delivered the following decision for the court on October 17, 2008.