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Lecture 8

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LAWS 2302
John Hale

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Lecture 8 Automatism - Common law, Defense, does not exist in the Criminal Code.Accused is acting involuntary, not choosing their actions. - Goes to actus reus, not mens rea - Defined in R.v. K. (see below) Automatism - R. v. K. (1970), (Ont. H.C.J.): "an unconscious, involuntary act where the mind does not go with what is being done.” • Actus reus is not present because it is not a “voluntary physical act” - R. v. Rabey (1977, OCA, p. 769; 1980, SCC, p. 776) • acquitted ofABH and Possession of Weapon at trial; new trial ordered by Ont. CA; ∆ appeals • Facts: Wayne Rabey assaulted a fellow student and friend  was a 20-yr-old 3rd year honours geology student at U of T  complainant was also a 3rd year science student  had crush on student; he and girl and 2 other students often ate lunch together  ∆ was shy, and developed strong but unreciprocated feelings for complainant  in early 1974, relationship began to deteriorate  Feb. 28, 1974, C asked ∆ to help with assignment  while she was absent a few minutes, he looked through her books to find an equation and found a letter she had written to a female friend  ∆ took letter home and read it, underlining certain parts  letter referred to sexual activity, both actual and wished for  referred to ∆ as a "nothing"  very upset  following morning, removed a rock sample from geology lab(not unusual)  bumped into C; had a strange feeling, "like a flash"  while walking with her, asked her what she thought of Gord  ∆ grabbed C by arms, stuck her twice on the head, knocking her unconscious  when C came to, ∆ was on his knees choking her. She asked him why she was doing this, and he kept saying, “You bitch, you bitch,” until she passed out again  as she said "just a friend," "the next thing I remember was choking her and I remember the face was a funny colour and I remember seeing a lot of blood and I stopped." He realized his hands were around her throat  after, ∆ was pale, glassy-eyed and frightened; professor described him as "out of it, bewildered"  C had 3 puncture wounds to head; fragments of rock embedded in them; she needed 20 stitches  no psychiatric illness  2 psychiatrists testified, conflicting  one said dissociated, one said not • Held (Dickson dissenting)  Apsychological blow can cause dissociation, but it has to be an external cause  "The ordinary stresses and disappointments of life do not constitute an external cause  (therefore internal, therefore insane) • Internal vs. external causes of automatism • Insane vs. non-insane automatism • Psychological blow  "The ordinary stresses and disappointments of life do not constitute an external cause”  First Landmark Case, Geology student who had a crush on a classmate at U of T, one evening they were doing homework, she left, and he read her diary and saw notes about sexual attractions and encounters with other people and a note saying that he was a dork. Next day he had a rock sample, and walked around campus. He then began attacking her with the rock, he kept beating her until people pulled him off. He was described as being pale, and out of it. It was said he suffered psychological drama which caused him to be in a state of automatism. Court said let’s look what caused his automatism, is it from external if so it would not be mental disorder. Causes are external there is no disease to the mind, it would temporary insanity. If it’s internal or organic it’s a disease of the mind. Court also talked about comparing insane and un-insane automatism. Insane automatism would be caused from a disease of the mind. Un-insane automatism would a defense. Can a psychological blow may cause a person to go in a state of shock, if that person in that state of shock create a crime they would have a complete defense. This is one of the common stresses of life that we all have to go through, if they acted out like this there is something wrong with them mentally, this is not the way a healthy person reacts. Rabey is known to have been in a state of automatism therefore would be not guilty by reason of insanity. Automatism - R. v. Parks (1992, SCC, p. 783) - ∆ charged with murdering his mother-in-law and attempting to murder his father-in-law; acquitted of both charges at separate trials; Ont. C.A. dismissed Crown appeal; Crown appeals to SCC - Facts: ∆ 23 years old • about a year earlier, ∆ was working 10 hours per day as project coordinator at Revere Electric • in the summer of 1986, ∆ had lost a lot of money betting on horses • ∆ stole $30,000 from employer to cover his debts • employer found out in March 1987, and dismissed him • court proceedings had begun, and personal life was affected • under a lot of stress, getting very little sleep • ∆’s in-laws were supportive, and were going to meet with ∆ and his wife for supper on May 24, 1987, the night of the incident • family had a history of sleep disorders • went to sleep in living room • got up in the middle of the night, drove 23 km to in-laws • tried to strangle father-in-law; stabbed him but didn’t kill him • stabbed mother-in-law several times, killing her • trial judge accepted that ∆ was sleepwalking at the time of the incident • sleepwalking is not a neurological, psychiatric or other illness, but is a sleep disorder • there is no medical treatment for sleepwalking, other than “sleep hygiene” - Held: In this case, trial Judge properly characterized it as automatism - approaches: - Issue: Is the “sleepwalking defense” a defense of insanity or a defense of automatism? • continuing danger theory: any condition likely to present a recurring danger to the public should be considered as insanity • internal cause theory: conditions stemming from psychological or emotional make-up of ∆, rather than some external factor, should be treated as insanity • both theories have in common a concern about recurrence (internal weakness is more likely to lead to recurring violence) • somnambulism is not well-suited to analysis under either theory, in this case (there are genetic factors which must be combined with external factors to produce sleepwalking) - Ratio: “Disease of the mind” is a legal concept, not a medical concept • therefore, trier of fact must determine whether medical evidence convinces that there is a disease of the mind • In order to determine whether a particular condition is a disease of the mind, there are two general - Ayoung man who had financial problems he was getting trouble with finances. His wife and he talked to his in-laws to talk about helping them out financially. He was having trouble sleeping due to his problems for a few weeks. In the middle of the night, he took his car, drove 23 kms, went to his in-laws bedroom stabbed his mother in law to death and stabbed his father in law and drove home, he looked at himself driving home and he came to realization that he did something wrong at his in laws place because of where he was. He drove to the police station, they went to the in-laws, and found his mother in law dead, and his father law suffering. In court he declared that he was sleepwalking, it ran in its family and he was known to sleep walk. The Crown did not deny that he was sleepwalking. The court needed to establish whether if he was insane or not insanity. The Trial court found him not guilty. It is proven that people can go through complex motions in their sleep. Is the sleepwalking defense and insanity defense or defense of automatism? Sleep walking is hard to characterize, if it’s internal or external. There were internal factors and external factors, they can ask does the condition that cause the state of automatism, does it pose a continuing danger, than it should be considered insane automatism. If the cause of the automatism stems from the psychological or emotional make-up of the accused, In this case, the court said that this should be non-insane, all he had to do to stop being a danger was to go to a regular sleep schedule. He is not a continuing danger, the acquittal was appropriate; they had to put Parks on a peace bond, with conditions for a year. Sleep walking is not always a defense of external automatism. - Court relaxes Rabey restrictions somewhat: it is now possible to rely on automatism defence even where cause of automatism is internal, not external Automatism - R. v. McDowall (1980, Ont. C.A.) • ∆ acquitted of dangerous driving; Crown appeals • Facts: ∆ was a police officer with Ottawa Police; quiet and well-respected  at time of offence, ∆ was on strong medication for damaged nerve in elbow  was only getting 2 hours of sleep per day; in extreme pain  ∆ was on midnight shift  picked up a couple of young girls and drove them to their place at Bayshore Apartments  had 5 beers  went to get some gas after 6AM, then returned to apartment at high rate of speed  saw several police officers at BayshoreApts., so took off  high speed chase; went over 100 mph  eventually ∆ crashed into 2 police cruisers that set up road-block  ∆ was irrational and disoriented when he got out; didn’t recognize familiar officers  Medical evidence: “toxic confusional state” caused by alcohol, exhaustion, distress over recent death of friend  ∆ was not in a state of automatism, according to Dr. • Issue: Is defence of automatism here? • Held: No: ∆ was negligent in getting himself into the state of automatism, therefore can’t rely on the defence; absolute discharge • ∆ was negligent in getting himself into the state of automatism, therefore can’t rely on the defense • Accused was a police officer, got drunk and mixed alcohol and medication, he raised the defense of automatism. Was it internal or external? Court said that if the person got himself in the state of automatism, there is no defense. Drinking and drugs were self induced. R. v. Stone (1999, SCC, p. 801) - In R. v. Luedecke (2008, OCA), the court said that, in Stone, the SCC “rewrote the law” on automatism - ∆ charged with murder of his wife; convicted of manslaughter and sentenced to 7 years; BCCAupheld conviction, and dismissed Crown’s sentence appeal; both appealed to SCC - Facts: • ∆ admitted stabbing his wife 47 times on a lengthy car ride • ∆ says his wife was nagging and insulting him; he felt a “whoosh” sensation wash over him • when his eyes focused again, ∆ found that he was holding a 6” hunting knife; he looked over and saw his wife slumped in the passenger seat • ∆ disposed of the body in the truck tool box, cleaned up, went home, left a note for his step-daughter, and checked into a hotel • ∆ then collected a debt, sold his car and flew to Mexico • ∆ had a dream in Mexico which caused him to remember stabbing his wife • ∆ returned to Canada 6 weeks later, got a lawyer, and turned himself in • defences raised at trial: (1) automatism (insane and non-insane), lack of intent, and provocation • trial judge felt that there was a proper evidentiary foundation for insane automatism, but not non-insane - Held (5:4): appeals dismissed - Stone was on a lengthy drive with his wife, he was annoyed with her nagging and talking he stabbed her 47 times. He was said to have been driven crazy to have stabbed her R. v. Stone - 2-step approach must apply to all claims of automatism (insane and non-insane): • (1) defense must establish proper foundation for automatism, i.e., ∆ must show that there is evidence upon which a properly instructed jury could find on a balance of probabilities that his actions were involuntary; this will always require psychiatric evidence  Judge is assessing if there is an air of reality to the defense of automatism. Accused has to prove a defense on the balance of probabilities in automatism cases. - Once it has been established that ∆ acted involuntarily… • (2) Judge must determine whether automatism is mental disorder or not; the presumption should be that the condition is a disease of the mind, and then determine whether the evidence in the particular case takes it out of that category  Once the defense is in play, the jury or the judge have to find that the accused was found to have been in a state of automatism, once the accused was found guilty other than automatism, is it insane or non insane automatism - Internal cause theory: use an objective test: compare ∆’s automatistic reaction to the reaction we would expect of a normal person • We have to use the “reasonable person test” - Continuing danger theory: any condition which is likely to present a recurring danger to the community should be treated as a disease of the mind. However, a finding of “no continuing danger” does not preclude a finding of “disease of the mind” • If the accused is not a continuing danger they can still be found to have a disease of the mind. - “Rather, a holistic approach should be adopted under which either or both of these approaches to the inquiry may be considered by trial judges. It is therefore more appropriate to refer to the internal cause factor and the continuing danger factor. In addition to these two factors, policy factors may also be considered in determining whether the condition the accused claims to have suffered from is a disease of the mind.” R. v. Fontaine (2004, SCC, p. 809) - ∆ convicted of 1 degree murder; Que. C.A. quashed conviction and ordered new trial; Crown appeals - Facts: ∆ worked “under the table” as a garage mechanic • February 10, 1999: got call from disgruntled former employee, Jules Renaud, saying “We’re coming to get you, pigs” • 2 days later, Robert Dompierre (V) came to the garage and told Benoit Randall (who worked with ∆) that he had been hired to murder Randall and ∆; he told Randall that there was a contract out on their heads • February 14/99: ∆ took his girlfriend to a meeting. They saw 4 men watching them; 2 of them followed ∆ to the washroom, where he had gone to smoke marijuana • When ∆ left the meeting, he used his remote starter to start the car, fearing that the car had been rigged with a bomb • ∆ told Randall about the events, and they went to buy a gun together the same night • the same night, ∆ thought he saw Renaud lurking outside his house; he called Randall, who came by and saw nothing • the same night, ∆ smoked some more marijuana and, while in bed, thought he heard intruders; he fired his gun through doors and windows • the next morning, Dompierre (V) came by the garage to pay a debt. When ∆ saw Dompierre, he grabbed his gun and shot him twice. Dompierre tried to get away, but ∆ followed him outside and shot him 5 more times, killing him • At trial, ∆ testified that he was in a state of automatism. He acted involuntarily, had “frozen”, and only partially recalled the incident • Dr. Richard Laliberté (psychiatrist) testified: ∆ had smoked excessive marijuana in the weeks leading up to the killing • Dr. Bruno Laplante (psychiatrist) testified: ∆ suffered from chronic antisocial personality disorder and acute paranoid delusions, but did not fall within s. 16 • Dr. Jacques Talbot (psychiatrist, main defence witness): ∆ had a psychological condition characterized by delusions, which could be triggered by chemicals including marijuana. At the time of the shooting, ∆ was in a psychotic state triggered by substance abuse. The episode started several days before the shooting and ended several days after. • Dr. Sylvain Faucher (psychiatrist) testified for the Crown: ∆ was not psychotic at any time in 1999 • At jury trial, Judge refused to put the defence of automatism to the jury, citing the following reasons: • The only psychiatrist who supported the defence based his conclusions on information provided by ∆ • Dr. Talbot’s conclusions were contradicted by the other experts • ∆ was not a credible witness, and contradicted himself on several points • the triggering event was not a traumatic psychological blow, given ∆’s own testimony that he was not afraid and that his stress was partly due to being on social assistance • ∆ had no history of automatistic-like dissociative states that would corroborate his claim • bystanders who saw ∆ described him as extremely nervous, but he did not seem to be impaired by marijuana • ∆ had a motive to kill, and the trigger for the alleged automatism was the victim himself • the alleged automatism, either mental disorder or not, is not supported by the evidence • therefore there are no grounds to instruct the jury - Issue: What is the threshold test for putting the defence of automatism to the jury? In other words, what is the evidential burden? - Held: there must be some evidence upon which a properly instructed jury could reasonably decide the issue. In this case, there was such evidence, and the defence should have been put to the jury - (RATIO): - Evidential burden: a question of law: should the issue be left to the trier of fact • Burden of the party putting forward a certain defense - Compare to “persuasive burden”, which is a question of fact: has the party proven a fact BRD or BoP? • Question of fact. Who has to prove the defense. - 3 situations: 1. Issue of guilt: Crown has both burdens 2. Affirmative defenses: Defense has evidential burden, Crown has persuasive burden (i.e., burdens are divided) 3. Reverse onus defenses: Defense has both burdens - Evidential burden • Judge does not evaluate the quality, weight or reliability of the evidence • Following Cinous, test is whether there is some evidence upon which a properly instructed jury could reasonably decide the issue • The test in Stone must be modified in light of Cinous: the trial judge does not decide the merits of the defense - In applying the air of reality test, the judge assumes (for the sake of argument) that the evidence ∆ is relying on is true; the question is, if the evidence is true, does it support the defence? - [89] Where mental disorder automatism is raised as a defense, an assertion of involuntariness on the part of the accused, supported by the logically probative opinion of a qualified expert, will normally provide -- as it did in this case -- a sufficient evidentiary foundation for putting the defense to the jury. • Has to have a psychiatrist that backs up that he was out of his mind, he was not acting voluntary. Burden is on the accused on a balance of probabilities that he was in a state of automatism - … By "logically probative", I simply mean relevant -- that is, evidence which, if accepted by the jury, would tend to support the defense of mental disorder automatism. Accompanying instructions in law will make it clear to the jury that the burden remains on the accused to establish the defense to the required degree of probability. “Sleepwalking woman had sex with strangers” (2004, New Scientist) - The behavior had disrupted the lives of the woman and her partner.At night while asleep, the middle-aged sleepwalker - who lives inAustralia and cannot be identified for reasons of confidentiality - left her house and had sexual intercourse with strangers. The behavior continued for several months and the woman had no memory of her nocturnal activities. - Circumstantial evidence, such as condoms found scattered around the house, alerted the couple to the problem. On one occasion, her partner awoke to find her missing, went searching for her and found her engaged in the sex act. R. v. Jan Luedecke (2005, OCJ) - Facts: Complainant, L.O., went to a croquet party • 50-60 people present • LO drank through the evening and played croquet • Around 2 PM, LO got tired and fell asleep on the couch in the living room while waiting for her friends • She woke up to find a man having intercourse with her; her underwear had been removed and her skirt lifted up • ∆, a “hard-working owner-operator of a landscaping company”, was also at the croquet party, defending his championship • the night before, he had con summed alcohol and magic mushrooms at a friend’s place at Georgian Bay • he got up at dawn, went for a swim, then drove to Toronto for the croquet party, arriving around 7 PM • by 4 AM, ∆ had been awake for almost 22 hours; he went to the living room and fell asleep on the same couch that LO was on • ∆’s next recollection is being pushed off the couch onto the floor • ∆ testified he was dazed and in shock • when LO left, ∆ went back to his parents’a few blocks away and went to sleep • when he woke up to go to the washroom he found that he was wearing a condom • ∆ went back to bed, then woke up having a vague feeling that something had happened • ∆ called his friend who hosted the party, saying that he wanted to come over • the friend said that it was not a good time to come over, as the police were there arresting someone • ∆ spoke to the police, said he thought that he was the perpetrator • ∆ then went to the police station to surrender and give a statement - [5] This is one of those rare criminal cases where the defendant advances the defence of non-insane automatism, asserting that the he was in the state of automatism at the time of the incident. His conduct was non-volitional and not the exercise of his conscious will. Therefore, no criminal act has been made out. The defence asserts that the defendant’s state of mind is not a mental disorder or a disease of the mind. In law, the defendant must convince the trier of fact on a balance of probabilities that the defence of non-insane automatism prevails and thereby entitles the defendant to an acquittal. • 4 times previously, ∆ had had sleep sex; as a result, he saw a forensic psychiatrist who referred him to a sleep disorders expert - [43] Mental disorder is a legal term defined by the Criminal Code as “a disease of the mind.” It is a mixed condition of law and fact. The trial judge must start from the proposition that the condition is a disease of the mind and determine whether the evidence in this case takes the condition out of the disease of the mind category. The first step requires addressing the internal cause theory. The trial judge must compare the accused’s automatistic reaction to that of a normal person and must consider the nature of the alleged trigger of automatism to determine whether a normal person might have reacted to it by entering into an automatistic state. The comparison is a contextually objective one. R. v. Jan Luedecke (2005, OCJ) - Court simplified sleep disorders. Case of sexual assault that “apparently” happened in his sleep 1. people who sleep too much 2. people who sleep too little 3. people who sleep at the wrong time 4. things that go bump in the night - Overturns trial decision. Trial judge acquitted. Court ofAppeal overturned that decision R. v. Luedecke - Were the respondent's actions involuntary? • Culpability - If the respondent's actions were involuntary, were they the product of a mental disorder, thereby rendering him NCR-MD? • Proper disposition - NCR-MD verdict is not a medical diagnosis. - “The criminal law uses the concept of mental disorder very differently from the medical profession.” - In criminal law, focus is on “dangerousness” rather than on the medical condition. - 56 The automatism "defense" is not a defense in the true sense but is a denial of the commission of the actus reus of the crime.Absent the commission of the prohibited act, there can be no crime and hence no criminal liability. Aperson who is unable to decide whether to perform an act and unable to control the performance of the act cannot be said, in any meaningful sense, to have committed the act. Nor can it be appropriate in a criminal justice system in which liability is predicated on personal responsibility to convict persons based on conduct which those persons have no ability to control… - 90 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. - 91 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. Commenting on this refinement of the continuing danger inquiry Professor Paciocco observes in "Death by Stone-ing: The Demise of the Defence of SimpleAutomatism" at p. 281: - (Paciocco) This part of the judgment effectively reverses Parks. The triggers for Parks' somnambulism or sleep-walking included stress, fatigue, insomnia and exercise. There is no point in speaking of the likelihood of such triggers being present in the future. It is a veritable certainty that they will be. It is clear that had Parks been tried using the Stone test, the only defence that would have been left to the jury would be "mental disorder automatism". [Emphasis added.] - 103 I am satisfied 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. - Luedecke was overturned because the trial judge ignored that there was an internal basis to his sleep walking disability. It is more likely to do it again, they found that he was mentally ill. Intoxication - Not in the Criminal Code, but contemplated as a defense under s.8 new provision: s.33.1 Intoxication - D.P.P. v. Beard (1920, HL) • It is no defense to
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