Automatism: Difference between revisions
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{{LevelZero}}{{HeaderDefences}} | {{LevelZero}}{{HeaderDefences}} | ||
==General Principles== | ==General Principles== | ||
The defence of "non-insane automatism" is a defence available at common law. | The defence of "non-insane automatism" is a defence available at common law. | ||
The law treats "almost all automatisms as the product of a mental disorder leading…to an NCR-MD verdict."<ref> | The law treats "almost all automatisms as the product of a mental disorder leading…to an NCR-MD verdict."<ref> | ||
R v Luedecke, [http://canlii.ca/t/217d9 2008 ONCA 716] (CanLII) - overturning a verdict of non-insane automatism | R v Luedecke, [http://canlii.ca/t/217d9 2008 ONCA 716] (CanLII){{perONCA|Doherty JA}} - overturning a verdict of non-insane automatism | ||
</ref> | </ref> | ||
'''Automatism Defined'''<Br> | '''Automatism Defined'''<Br> | ||
Automatism is "a state of impaired consciousness". This is in contrast with "unconsciousness, in which an individual, though capable of action, has no voluntary control over that action".<ref> | Automatism is "a state of impaired consciousness". This is in contrast with "unconsciousness, in which an individual, though capable of action, has no voluntary control over that action".<ref> | ||
R v Stone, [http://canlii.ca/t/1fqn2 1999 CanLII 688] (SCC), [1999] 2 SCR 290 | R v Stone, [http://canlii.ca/t/1fqn2 1999 CanLII 688] (SCC), [1999] 2 SCR 290{{perSCC| Bastarache J}} at para 156</ref> | ||
The person engages in "involuntary behaviour" such that "a person who, though capable of action, is not conscious of what he is doing. It means an unconscious involuntary act where the mind does not go with what is being done." | The person engages in "involuntary behaviour" such that "a person who, though capable of action, is not conscious of what he is doing. It means an unconscious involuntary act where the mind does not go with what is being done." | ||
<ref> | <ref> | ||
R v Rabey, [http://canlii.ca/t/1vlp1 1977 CanLII 48] (ON CA), (1977) 37 CCC 2d 461 at 155 | R v Rabey, [http://canlii.ca/t/1vlp1 1977 CanLII 48] (ON CA), (1977) 37 CCC 2d 461 at 155{{perONCA|Martin JA}} at 156 </ref> | ||
The term "automatism" refers to the involuntary conduct that is the "product of a mental state in which the conscious mind is disassociated from the part of the mind that controls action".<ref> | The term "automatism" refers to the involuntary conduct that is the "product of a mental state in which the conscious mind is disassociated from the part of the mind that controls action".<ref> | ||
R v SH, [http://canlii.ca/t/g6l0k 2014 ONCA 303] (CanLII) | R v SH, [http://canlii.ca/t/g6l0k 2014 ONCA 303] (CanLII){{perONCA|Watt JA}} at para 63<Br> | ||
Luedecke, [http://canlii.ca/t/217d9 2008 ONCA 716] (CanLII) at para 54<br> | R v Luedecke, [http://canlii.ca/t/217d9 2008 ONCA 716] (CanLII){{perONCA|Doherty JA}} at para 54<br> | ||
</ref> Accordingly, automatism relates only to the ''actus reus'' of the offence as it affects the voluntariness of the accused's actions.<ref> | </ref> Accordingly, automatism relates only to the ''actus reus'' of the offence as it affects the voluntariness of the accused's actions.<ref> | ||
SH{{supra}} at para 63<Br> | SH{{supra}} at para 63<Br> | ||
R v Alexander, [http://canlii.ca/t/gm91s 2015 BCCA 484] (CanLII) at para 28 ("A defence of automatism amounts to a denial of the voluntariness component of the ''actus reus'' of the offence. A person who is unable to control whether to perform an act, or how to perform an act, cannot be said to have committed the act voluntarily. Conduct which is not voluntary cannot be criminal.") </ref> | R v Alexander, [http://canlii.ca/t/gm91s 2015 BCCA 484] (CanLII){{perBCCA| Stromberg-Stein JA}} at para 28 ("A defence of automatism amounts to a denial of the voluntariness component of the ''actus reus'' of the offence. A person who is unable to control whether to perform an act, or how to perform an act, cannot be said to have committed the act voluntarily. Conduct which is not voluntary cannot be criminal.") </ref> | ||
'''Effect of Finding'''<br> | '''Effect of Finding'''<br> | ||
There are two types of automatism. There is mental disorder automatism and there is non-mental disorder automatism. The finding of the former leads to an [[Not Criminally Responsible]] finding. The latter leads to an acquittal.<REf> | There are two types of automatism. There is mental disorder automatism and there is non-mental disorder automatism. The finding of the former leads to an [[Not Criminally Responsible Due to Mental Disorder|Not Criminally Responsible]] finding. The latter leads to an acquittal.<REf> | ||
Alexander{{ibid}} at para 29<Br> | Alexander{{ibid}} at para 29<Br> | ||
Luedecke{{supra}}<br> | Luedecke{{supra}}<br> | ||
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{{reflist|2}} | {{reflist|2}} | ||
===Burden and Standard of Proof=== | ===Burden and Standard of Proof=== | ||
The burden is on the accused to prove involuntariness on a balance of probabilities.<Ref>R v Stone, [http://canlii.ca/t/1fqn2 1999 CanLII 688] (SCC), [1999] 2 SCR 290 at para 171, 179 (“The foregoing leads me to the conclusion that the legal burden in cases involving claims of automatism must be on the defence to prove involuntariness on a balance of probabilities to the trier of fact.”)</ref> | The burden is on the accused to prove involuntariness on a balance of probabilities.<Ref>R v Stone, [http://canlii.ca/t/1fqn2 1999 CanLII 688] (SCC), [1999] 2 SCR 290{{perSCC| Bastarache J}} at para 171, 179 (“The foregoing leads me to the conclusion that the legal burden in cases involving claims of automatism must be on the defence to prove involuntariness on a balance of probabilities to the trier of fact.”)</ref> | ||
The accused has the evidentary burden to adduce evidence to raise the issue for the court and the legal burden of proving the fact alleged.<ref> | The accused has the evidentary burden to adduce evidence to raise the issue for the court and the legal burden of proving the fact alleged.<ref> | ||
R v | R v SH, [http://canlii.ca/t/g6l0k 2014 ONCA 303] (CanLII){{perONCA|Watt JA}}, at para 65<br> | ||
Stone at paras 173, 182</ref> | Stone{{supra}} at paras 173, 182</ref> | ||
The defence must provide confirming psychiatric evidence. It must establish more than the claim that involuntariness is "plausible".<ref> | The defence must provide confirming psychiatric evidence. It must establish more than the claim that involuntariness is "plausible".<ref> | ||
Stone at p. 187<br> | Stone at p. 187<br> | ||
R v Enns, [http://CanLII.ca/t/gp32d 2016 ONSC 2229] (CanLII) at para 20<br> | R v Enns, [http://CanLII.ca/t/gp32d 2016 ONSC 2229] (CanLII){{perONSC| Fregeau J}} at para 20<br> | ||
</ref> | </ref> | ||
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==Requirement== | ==Requirement== | ||
In order to establish automatism it is necessary for the defence to 1) claim that he acted involunarty and 2) adduce expert evidence to support the involuntariness claim.<ref> | In order to establish automatism it is necessary for the defence to 1) claim that he acted involunarty and 2) adduce expert evidence to support the involuntariness claim.<ref> | ||
R v S.H., [http://canlii.ca/t/g6l0k 2014 ONCA 303] (CanLII), at para 69<br> | R v S.H., [http://canlii.ca/t/g6l0k 2014 ONCA 303] (CanLII){{perONCA|Watt JA}}, at para 69<br> | ||
R v Stone, [http://canlii.ca/t/1fqn2 1999 CanLII 688] (SCC), [1999] 2 SCR 290, at paras 183 to 184<Br> | R v Stone, [http://canlii.ca/t/1fqn2 1999 CanLII 688] (SCC), [1999] 2 SCR 290{{perSCC| Bastarache J}}, at paras 183 to 184<Br> | ||
</ref> | </ref> | ||
The judge must then take a two step inquiry. First, the judge must "determine whether the accused person has established a proper evidentiary foundation for a defence of automatism".<ref> | The judge must then take a two-step inquiry. First, the judge must "determine whether the accused person has established a proper evidentiary foundation for a defence of automatism".<ref> | ||
Alexander at para 30<Br> | Alexander{{supra}} at para 30<Br> | ||
</ref>Second, the judge must determine which form of automatism should be left with the trier of fact".<ref> | </ref>Second, the judge must determine which form of automatism should be left with the trier of fact".<ref> | ||
Alexander at para 30<Br> | Alexander{{supra}} at para 30<Br> | ||
</ref> | </ref> | ||
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===Evidentiary Burden=== | ===Evidentiary Burden=== | ||
The evidentiary burden requires the admission of expert evidence that should be in the form of "psychiatric or psychological evidence".<ref> | The evidentiary burden requires the admission of expert evidence that should be in the form of "psychiatric or psychological evidence".<ref>R v SH, [http://canlii.ca/t/g6l0k 2014 ONCA 303] (CanLII){{perONCA|Watt JA}} at para 70<br> | ||
Stone at para 192</ref> It should establish:<ref> | R v Stone [http://canlii.ca/t/1fqn2 1999 CanLII 688] (SCC), [1999] 2 SCR 290{{perSCC| Bastarache J}} at para 192</ref> It should establish:<ref> | ||
SH{{supra}} at para 71</ref> | |||
# evidence of a documented medical history of automatistic-like dissociative states; | # evidence of a documented medical history of automatistic-like dissociative states; | ||
# evidence of a bystander about the appearance of the accused before, during and after the alleged involuntary conduct (para 190); and | # evidence of a bystander about the appearance of the accused before, during and after the alleged involuntary conduct (para 190); and | ||
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{{seealso|Not Criminally Responsible Due to Mental Disorder}} | {{seealso|Not Criminally Responsible Due to Mental Disorder}} | ||
Where the evidentiary burden has been made out to the satisfaction of the trier of fact, the judge must make a determination of the legal characterization of automatism.<ref> | Where the evidentiary burden has been made out to the satisfaction of the trier of fact, the judge must make a determination of the legal characterization of automatism.<ref> | ||
R v SH, [http://canlii.ca/t/g6l0k 2014 ONCA 303] (CanLII){{perONCA|Watt JA}} at para 72</ref> | |||
That is, the judge must then determine "whether mental disorder or non-mental disorder automatism should be left with the trier-of-fact".<ref> | That is, the judge must then determine "whether mental disorder or non-mental disorder automatism should be left with the trier-of-fact".<ref> | ||
R v Enns, [http://CanLII.ca/t/gp32d 2016 ONSC 2229] (CanLII) at para 21<br> | R v Enns, [http://CanLII.ca/t/gp32d 2016 ONSC 2229] (CanLII){{perONSC| Fregeau J}} at para 21<br> | ||
Stone at p. 193<Br> | Stone at p. 193<Br> | ||
</ref> | </ref> | ||
In a jury trial, the judge must decide whether automatism should be put to the jury.<ref> | In a jury trial, the judge must decide whether automatism should be put to the jury.<ref> | ||
SH{{supra}} at para 72</ref> | |||
The law recognizes two classes of automatism. There is mental disorder automatism and non-mental disorder automatism.<ref> | The law recognizes two classes of automatism. There is mental disorder automatism and non-mental disorder automatism.<ref> | ||
SH{{supra}}, at para 73</ref> The former requires a "mental disorder" and the latter does not.<ref> | |||
SH{{supra}} at para 73</ref> | |||
The analysis should begin from the premise that automatism originates from a mental disorder..<ref> | |||
SH{{supra}} at para 74</ref> | |||
The courts should adopt a "holistic approach" to determine if the condition amounts to a disease of the mind.<Ref> | The courts should adopt a "holistic approach" to determine if the condition amounts to a disease of the mind.<Ref> | ||
R v Alexander, [http://canlii.ca/t/gm91s 2015 BCCA 484] (CanLII) at para 36 to 38<Br> | R v Alexander, [http://canlii.ca/t/gm91s 2015 BCCA 484] (CanLII){{perBCCA| Stromberg-Stein JA}} at para 36 to 38<Br> | ||
</ref> This will involve consideration of three factors:<ref>Alexander at para 38<Br> | </ref> This will involve consideration of three factors:<ref>Alexander{{supra}} at para 38<Br> | ||
Stone at para 203 | Stone{{supra}} at para 203 | ||
</ref> | </ref> | ||
# internal cause factor; | # internal cause factor; | ||
| Line 100: | Line 99: | ||
It is only in the "rare" cases that the form of automatism will be a non-mental disorder in nature.<Ref> | It is only in the "rare" cases that the form of automatism will be a non-mental disorder in nature.<Ref> | ||
Stone at para 199<Br> | Stone{{supra}} at para 199<Br> | ||
Alexander at para 36<Br> | Alexander{{supra}} at para 36<Br> | ||
</ref> The form of non-mental disorder automatism will usually occur when all the following are true:<ref> | </ref> The form of non-mental disorder automatism will usually occur when all the following are true:<ref> Alexander{{supra}} at para 37<Br>Luedecke{{supra}} at para 63<Br> | ||
</ref> | </ref> | ||
# the accused suffered a single incident of automatism; | # the accused suffered a single incident of automatism; | ||
| Line 110: | Line 109: | ||
The question of which form of automatism is available is a question of law and so can only be decided by the judge.<REf> | The question of which form of automatism is available is a question of law and so can only be decided by the judge.<REf> | ||
Alexander at para 32 to 33<Br> | Alexander{{supra}} at para 32 to 33<Br> | ||
</ref> | </ref> | ||
{{reflist|2}} | {{reflist|2}} | ||
Revision as of 20:00, 28 November 2018
- < Criminal Law
- < Defences
General Principles
The defence of "non-insane automatism" is a defence available at common law.
The law treats "almost all automatisms as the product of a mental disorder leading…to an NCR-MD verdict."[1]
Automatism Defined
Automatism is "a state of impaired consciousness". This is in contrast with "unconsciousness, in which an individual, though capable of action, has no voluntary control over that action".[2]
The person engages in "involuntary behaviour" such that "a person who, though capable of action, is not conscious of what he is doing. It means an unconscious involuntary act where the mind does not go with what is being done."
[3]
The term "automatism" refers to the involuntary conduct that is the "product of a mental state in which the conscious mind is disassociated from the part of the mind that controls action".[4] Accordingly, automatism relates only to the actus reus of the offence as it affects the voluntariness of the accused's actions.[5]
Effect of Finding
There are two types of automatism. There is mental disorder automatism and there is non-mental disorder automatism. The finding of the former leads to an Not Criminally Responsible finding. The latter leads to an acquittal.[6]
An NCR verdict permits a "post-verdict dangerousness assessment of the accused" that allows the court to tailor disposition to the specifics of the case.[7]
- ↑ R v Luedecke, 2008 ONCA 716 (CanLII), per Doherty JA - overturning a verdict of non-insane automatism
- ↑ R v Stone, 1999 CanLII 688 (SCC), [1999] 2 SCR 290, per Bastarache J at para 156
- ↑ R v Rabey, 1977 CanLII 48 (ON CA), (1977) 37 CCC 2d 461 at 155, per Martin JA at 156
- ↑
R v SH, 2014 ONCA 303 (CanLII), per Watt JA at para 63
R v Luedecke, 2008 ONCA 716 (CanLII), per Doherty JA at para 54
- ↑
SH, supra at para 63
R v Alexander, 2015 BCCA 484 (CanLII), per Stromberg-Stein JA at para 28 ("A defence of automatism amounts to a denial of the voluntariness component of the actus reus of the offence. A person who is unable to control whether to perform an act, or how to perform an act, cannot be said to have committed the act voluntarily. Conduct which is not voluntary cannot be criminal.") - ↑
Alexander, ibid. at para 29
Luedecke, supra
- ↑ Luedecke, supra
Burden and Standard of Proof
The burden is on the accused to prove involuntariness on a balance of probabilities.[1]
The accused has the evidentary burden to adduce evidence to raise the issue for the court and the legal burden of proving the fact alleged.[2]
The defence must provide confirming psychiatric evidence. It must establish more than the claim that involuntariness is "plausible".[3]
- ↑ R v Stone, 1999 CanLII 688 (SCC), [1999] 2 SCR 290, per Bastarache J at para 171, 179 (“The foregoing leads me to the conclusion that the legal burden in cases involving claims of automatism must be on the defence to prove involuntariness on a balance of probabilities to the trier of fact.”)
- ↑
R v SH, 2014 ONCA 303 (CanLII), per Watt JA, at para 65
Stone, supra at paras 173, 182 - ↑
Stone at p. 187
R v Enns, 2016 ONSC 2229 (CanLII), per Fregeau J at para 20
Requirement
In order to establish automatism it is necessary for the defence to 1) claim that he acted involunarty and 2) adduce expert evidence to support the involuntariness claim.[1]
The judge must then take a two-step inquiry. First, the judge must "determine whether the accused person has established a proper evidentiary foundation for a defence of automatism".[2]Second, the judge must determine which form of automatism should be left with the trier of fact".[3]
- ↑
R v S.H., 2014 ONCA 303 (CanLII), per Watt JA, at para 69
R v Stone, 1999 CanLII 688 (SCC), [1999] 2 SCR 290, per Bastarache J, at paras 183 to 184
- ↑
Alexander, supra at para 30
- ↑
Alexander, supra at para 30
Evidentiary Burden
The evidentiary burden requires the admission of expert evidence that should be in the form of "psychiatric or psychological evidence".[1] It should establish:[2]
- evidence of a documented medical history of automatistic-like dissociative states;
- evidence of a bystander about the appearance of the accused before, during and after the alleged involuntary conduct (para 190); and
- evidence of motive or absence of motive
- ↑ R v SH, 2014 ONCA 303 (CanLII), per Watt JA at para 70
R v Stone 1999 CanLII 688 (SCC), [1999] 2 SCR 290, per Bastarache J at para 192 - ↑ SH, supra at para 71
Legal Character of Automatism (Mental Disorder vs Non-Mental Disorder)
Where the evidentiary burden has been made out to the satisfaction of the trier of fact, the judge must make a determination of the legal characterization of automatism.[1] That is, the judge must then determine "whether mental disorder or non-mental disorder automatism should be left with the trier-of-fact".[2]
In a jury trial, the judge must decide whether automatism should be put to the jury.[3]
The law recognizes two classes of automatism. There is mental disorder automatism and non-mental disorder automatism.[4] The former requires a "mental disorder" and the latter does not.[5]
The analysis should begin from the premise that automatism originates from a mental disorder..[6]
The courts should adopt a "holistic approach" to determine if the condition amounts to a disease of the mind.[7] This will involve consideration of three factors:[8]
- internal cause factor;
- continuing danger factor; and
- other policy concerns.
It is only in the "rare" cases that the form of automatism will be a non-mental disorder in nature.[9] The form of non-mental disorder automatism will usually occur when all the following are true:[10]
- the accused suffered a single incident of automatism;
- it was triggered by a specific external event;
- the trigger is unlikely to reoccur; and
- the vent could have caused a dissociative state in a normal person.
The question of which form of automatism is available is a question of law and so can only be decided by the judge.[11]
- ↑ R v SH, 2014 ONCA 303 (CanLII), per Watt JA at para 72
- ↑
R v Enns, 2016 ONSC 2229 (CanLII), per Fregeau J at para 21
Stone at p. 193
- ↑ SH, supra at para 72
- ↑ SH, supra, at para 73
- ↑ SH, supra at para 73
- ↑ SH, supra at para 74
- ↑
R v Alexander, 2015 BCCA 484 (CanLII), per Stromberg-Stein JA at para 36 to 38
- ↑ Alexander, supra at para 38
Stone, supra at para 203 - ↑
Stone, supra at para 199
Alexander, supra at para 36
- ↑ Alexander, supra at para 37
Luedecke, supra at para 63
- ↑
Alexander, supra at para 32 to 33