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by / par  ©François Lareau, Ottawa, 2002-
First posted officially on the internet: 2 August 2002

Selected Bibliography on Automatism
                   - - - - - - - - - - -
Bibliographie choisie sur l'automatisme
 

I- Canadian Law / Droit canadien

-----------
See also the following bibliographies / voir aussi les bibliographies suivantes :

• II- Automatism: Comparative Law

• Diminished Responsibility or Capacity / Responsabilité atténuée
               • Canadian Criminal Law/ Droit pénal canadien
               • Comparative Law / Droit comparé

• Mental Disorder and Fitness to Stand Trial in Canadian Law
    Authors:   • A-C---• D-K---• L-R---• S-Z
-----------
 

"With respect to automatism, the law historically has been influenced by the Cartesian mind-body dichotomy. ... The distinction between sane and insane automatism has come only to be meaningful in a legal sense.  Behaviours classified in law as sane and insane automatism are both the result of identifiable mental disorders. ... [T]his concept of automatism has no place in law.  It's the wish of the Canadian Psychiatric Association that it be abolished"
(Testimony of Dr. MacKay, Canadian Psychiatrict Association, before the House of Commons, Sub-Committee on the Recodification of the General Part of the Criminal Code, infra)

ADDICTION RESEARCH FOUNDATION OF ONTARIO, "Response to Consultation Paper on Options to Reform The Criminal Code of Canada", January 10, 1995, 15 p. with an Appendix of 5 p. in questions and answers format, dated "Revised Jan. 9, 1994"; copy obtained under an Access to Information Act request made to the Department of Justice Canada, reply 17 November 1998, their file A98-00147, documents numbers 000596-000620; note: the paper deals with automatism and the defence of intoxication only; important contribution;
 

AKHTAR, Syed,  testimony before Parliament, House of Commons, Standing Committee on Justice and Human Rights, Review of the Mental Disorder Provisions of the Criminal Code also published in French  / aussi publié en français:  témoignage devant, Parlement, Chambre des communes, Comité permanent de la justice et des droits de la personne, Examen des dispositions du Code criminel relatives aux troubles mentaux :

• 30 April 2002 (E /F): Dr. Syed Akhtar:  English / Français

___________"A Brief Submitted to the Standing Committee on Justice and Human Rights on Review of the Mental Disorder Provisions of the Criminal Code of Canada", April 30, 2002, 3 p.;

"Automatism

This defense, although rarely used, is difficult to grasp for lawyers and psychiatrist as well as the general public.  Recent cases in Canada have provoked worldwide interest but have shed little light on the necessary conditions which should be satisfied before it can be successfully invoked in psychological cases.

There is a great need to study this phenomenon in a systematic and a comprehensive manner, by both the legal and the psychiatric profession.

I recommend that the Government of Canada establish a Commission of Inquiry to look into this time-honoured defense Automatism and clarify its conceptual and legal boundaries. I am thinking of the McRuer commission, which was established in the 1950s to study the Insanity Defense.  Its findings were very constructive and instructive.  I am sure that a Commission on Automatism would prove to be equally productive." (p. 3)

ARBOLEDA-FLOREZ, Julio, 1939-, and Christine Deynaka, Forensic Psychiatric Evidence, Toronto: Butterworths, 1999,  xx, 304 p., see "Automatism" at pp. 129-150 and "Automatism Due to Intoxication" at pp. 153-154, ISBN:  0433408561;
 

ARBOLEDA-FLOREZ, Julio, 1939-,  House of Commons, Standing Committee on Justice and Human Rights; Review of the Mental Disorder Provisions of the Criminal Code also published in French  / aussi publié en français:  CANADA, Parlement, Chambre des communes, Comité permanent de la justice et des droits de la personne, Examen des dispositions relatives aux troubles mentaux : 14 March 2002 (E/F): testimony of Dr. Julio Arboleda-Florez, Professor and Head, Department of Psychiatry, Queen's University: English / Français

    "[Dr. Julio Arboleda-Florez]  The material sent to us asks about the question of automatism. I clearly say there is no psychological, psychiatric, or neurological basis for a defence of automatism.  Say no to automatism. There are automatisms; they all pertain to issues of mental conditions--personality disorders, etc.--affecting the way a person functions, and in  particular moment there is a disintegration of behaviour. But that is mental illness, and those issues therefore fall under insane automatism."

___________"Forensic Psychiatry: Success an Failure of the Mental Health System in Canada -- A Brief to the Standing Committee on Justice and Human Rights Review of the Mental Disorder Provisions of the Criminal Code]", 2 January 2002, 6 p.; document obtained by François Lareau, pursuant to a request under the Access to Information Act to the Department of Justice Canada, their file number: A-2002-0084/mfa, their reply dated 29 July 2002, documents 000204-000209;   also available in French / aussi disponible en français:

"Automatism.  This legal term is used to mean complex purposeful and, almost exclusively, serious criminal behaviours accompanied by a 'claimed' loss of memory in the absence of complete mental or emotional pathology.  So defined, automatism is no more than a fiction with no real equivalent in Psychiatry or Neurology.  Lawyers seeking fancy defences and eager expert witnesses would like to have an easy way out with fancies of rhetoric but with no scientific substance.  Close examination of cases of automatism usually end up in insane automatism once the neurological and personality pathology are revealed.  There is no need, therefore, to codify such an unscientific concept." (p. 5)

___________"Editorial Review: On automatism", (2002) 15 Current Opinion in Psychiatry 569-576; available at http://post.queensu.ca/~ja9/My_Homepage_Files/Download/On%20Automatism.pdf (accessed on 13 April 2008);

ARCHIBALD, Bruce P., "Actus Reus, Voluntariness and Automatism: A Commentary on Federal Government Proposals to Amend the Canadian Criminal Code", [S.l. : s.n.], 1994, 15 p.; available at http://web.archive.org/web/20010311113802/http://129.128.19.162/docs/actusdoj.html and at my Digital Library (accessed on 7 July 2008); also published in English/ aussi publié en anglais: L'actus reus, le fait volontaire et l'automatisme : observation sur la proposition de modification du Code criminel élaborée par le gouvernement fédéral, [Ottawa] : Division de la réforme du droit, Ministère de la justice du Canada, 1994, 11 p. ; 28 cm., copie à Bibliothèque nationale du Canada, Ottawa Preserv Copy - COP.CA.2.1997-1640 - NO ILL;  la version française est disponible à ma Bibliothèque numérique; (vérifiés le 7 juillet 2008);

BARRETT, Joan, and Riun Shandler, Mental Disorder in Canadian Criminal Law, Toronto: Thomson -- Carswell, c2006, ISBN: 0459276050 , looseleaf supplemented book; (not consulted yet, 13 December 2006);

BAYNE, Donald B., "Automatism and Provocation in Canadian Case Law", (1975) 31 Criminal Reports (New Series) 257-271;
 

BARREAU DU QUÉBEC, et Francis Gervais, bâtionnier du Québec, lettre au Chambre des communes, Comité permanent de la justice et des droits de la personne, Examen des dispositions du Code criminel relatives aux troubles mentaux, "Objet: Document de discussion -- Examen des dispositions du Code criminel concernant les troubles mentaux", 8 avril 2002, 4 p; also available in English/ aussi disponible en anglais: should be available from the House of Commons, Standing Committee on Justice and Human Rights, Review of the Mental Disorder Provisions of the Criminal Code, 2002;

    "Dans le contexte où l'automatisme continue d'être régi par la common law bien que le ministre de la Justice ait fait circuler en 1993 des propositions de modifications qui auraient codifié cette défense, la question est de savoir si l'automatisme devrait être défini dans le Code criminel.  Le Barreau du Québec n'est pas en faveur d'une modification au Code criminel afin d'insérer une telle définition considérant qu'actuellement la question est davantage théorique puisqu'en pratique cela ne pose aucun problème réel.  Bien qu'à l'heure actuelle un verdict d'automatisme sans aliénation mentale entraîne un acquittement complet, le Barreau du Québec n'opine pas en faveur d'octroyer aux tribunaux le pouvoir d'imposer des ordonnances de surveillance dans les cas d'automatisme sans aliénation mentale." (p. 2)

BECK, S.M., "Voluntary Conduct: Automatism, Insanity and Drunkenness", (1966-67) 9 The Criminal Law Quarterly 315-322; copy at Ottawa University, KE 8802 .C534  Location: FTX Periodicals;

BENEDET, Janine, "Annotation: R. v. Chaulk, (2007) 49(1) C.R. (6th) 1 (Nova Scotia Court of Appeal", (2007) 49(1) Criminal Reports (6th) 173-174;  see R. v. Chaulk, 2007 NSCA 84 (CanLII) — 2007-July-10;

____________"Annotation: R. v. Luedecke, (2006) 35 C.R. (6th) 205 (Ontario Court of Justice)", (2006) 35 Criminal Reports (6th) 206-207; case available at of 2005 ONCJ 294,  http://www.canlii.org/on/cas/oncj/2005/2005oncj294.html (accessed on 21 June 2006);

BLACKWELL, Richard, "Top court to clarify automatism defence.  Appeals of two murder cases hinge on issue", Monday, 13 March 2006; about the appeals of Rita Graveline and Jocelyn Hotte; available at http://www.theglobeandmail.com/servlet/ArticleNews/freeheadlines/LAC/20060313/MURDER13/national/National (accessed on 25 March 2006);

BLAIR, Annice, 1948-, Kathleen Ryan Elliott, Bonnie Manning and Marcus Mossuto, lead authors, Canadian and International Law, DonMills (Ontario): Oxford University Press, 2004, ix, 551 p., and see in Chapter 11, "Defences and Sentencing", the part "Automatism", at pp. 336-337, ISBN: 0195420470; note: there is also a "Teacher's Resource", ISBN: 0195420489; copy at the Library of Parliament, Ottawa, Br. B KE444 B53;
 

BLOOM, Hy, and Richard D. Schneider, Mental disorder and the law: a primer for legal and mental health professionals, Toronto: Irwin Law, 2006, xvi, 302 p., ISBN: 1552211215;
 

BONDU, Susan J. "Editor's Introduction - Self-induced intoxication as a defence in the Criminal code of Canada: issues and discussion around Daviault v. R.", (winter 1996) 23 Contemporary Drug Problems 571-582; on  R. v. Daviault, [1994] 3 S.C.R. 63-132;
 

___________"A summary of public consultation on reform of  the Criminal Code of Canada as related to a defense of self-induced intoxication  resulting in automatism", (1996) 23 Contemporary Drug Problems 583-593;
 

BOURGET, Dominique, see, infra, under Canadian Academy of Psychiatry and the Law;
 

BOURQUE, Sophie, "Les moyens de défense" dans Droit pénal (Infractions, moyens de défense et sentence) volume 11, Cowansville: Éditions Yvon Blais, 2000, aux pp. 163-188, voir sur l'automatisme, les pp. 168-170, (Collection; Collection de droit 1999-2000, vol. 11), ISBN: 289451333X;  nouvelles éditions sont publiées régulièrement;
 

___________"Les moyens de défense" dans Claude Leblond, responsable du secteur Droit pénal, École du Barreau du Québec, Droit pénal: infractions, moyens de défense et sentence, Cowansville (Québec): Les Éditions Yvon Blais, 2001, 264 p., aux pp. 161-188, et plus particulièrement, "L'automatisme" aux pp. 166-169 (Collection; Collection de droit 2000-2001; volume 11), ISBN: 2894513976; copie à la Bibliothèque de la Cour suprême du Canada, KF385 ZB5 C681 v. 11 2000-01 c. 01 (23 février 2003);
 

BRAITHWAITE, W.J., "Developments in Criminal Law and Procedure: The 1979-80 Term", (1981) 2 Supreme Court Law Review 177-234, see "Automatism" at pp. 197-204;
 

BREWER, Carol A., "Automatism" in National Criminal Law program (1998: Victoria, B.C.), [ed.],  National Criminal Law Program, The Federation of Law Societies of Canada, Victoria : Federation of Law Societies, 1998, 2 volumes, in vol. 1, section 2.6,  9 p.; copy at the Library of the Supreme Court of Canada, Ottawa, KF9220 ZA2 N38 1998 v. 1 c. 01;
 

BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION, "Executive Summary of Recommendations of the BCCLA [to House of Commons, Standing Committee on Justice and Human Rights; Review of the Mental Disorder Provisions of the Criminal Code], [2002], 3 p.; document obtained by François Lareau, pursuant to a request under the Access to Information Act to the Department of Justice Canada, their file number: A-2002-0084/mfa, their reply dated 29 July 2002, documents 000195-000197;
 

___________"Submission to the Standing Committee on Justice and Human Rights Regarding the Review of the Mental Disorder Provisions of the Criminal Code", February 26, 2002, available at  http://www.bccla.org/othercontent/02CCmentalhealth.html accessed on 30 July 2002;

"The BCCLA also believes that the automatism "defence" needs to be statutorily clarified in order to ensure that persons incapable of acting voluntarily, and thus incapable of being held responsible for their actions, are not unjustly convicted and imprisoned.
......

AUTOMATISM

Summary

In summary with respect to the "defence" of automatism, the BCCLA calls upon this Committee to recommend the statutory codification of the defence of automatism. That codification should make it clear that while the accused must satisfy the evidentiary burden of adducing sufficient evidence to put the voluntariness of his or her actions into question, the burden remains on the Crown throughout to prove that an accused's actions are voluntary.

It should also eliminate any presumption of mental disorder in cases of automatism, leaving it to the finder of fact to make the determination on the basis of the evidence as to whether the accused has a mental disorder or not. The continuing danger criterion should be eliminated in view of the fact that it has nothing to do with whether a person was suffering from a mental disorder or not.  Further, it should be permissible for both mentally disordered and non-mentally disordered automatism to be left with the jury in the appropriate case.

These clarifications are necessary in order to ensure that the crucial criminal law principle that persons are held criminally responsible only for acts voluntarily committed by them is not trampled in response to an unwarranted fear of the floodgates being opened to feigned cases of automatism. Our courts, judicial processes, judges and juries are more than competent for the task of recognizing the rare case of non-mentally disordered automatism without artificial and dangerous limitations on the elements of the defence. As Binnie J. said for the dissent in Stone (at para. 89):

                         The common sense of members of the jury is a fundamental and vital part of our criminal justice
                         system....

                         [Referring to the evidence in that case] The jury in this case, for example, had before it the
                         testimony of the Crown psychiatrist that the appellant's violent response to his wife's verbal
                         attack was entirely too purposeful and the loss of memory entirely too convenient to be
                         considered "involuntary".  The members of the jury could, I think, have been counted on to exhibit
                         powerful scepticism about such evidence. Anyone who thinks a jury of bus drivers, office workers
                         and other practical people will be less sceptical than members of the bench or professors of law
                         that perhaps spent insufficient time in buses or around office coffee machines.

Similarly, the principles of fundamental justice require that persons found not guilty on the basis of non mentally disordered automatism be acquitted.  In the absence of a voluntary act such persons are not criminally responsible for "their" acts, with the result that the state cannot be justified in imposing penal or other consequences on them."
 

• 9 April 2002 (E/F): From the B.C. Forensic Psychiatric Services Commission: Barbara Fisher, Legal Counsel; Dr. Mark Riley, Psychiatrist.  English / Français

___________"Review of the Mental Disorder Provisions of the Criminal Code of Canada -- Submission of the Forensic Psychiatric Services Commission of British Columbia to the Standing Committee on Justice and Human Rights", 23 January 2002, 6 p.;  document obtained by François Lareau, pursuant to a request under the Access to Information Act to the Department of Justice Canada, their file number: A-2002-0084/mfa, their reply dated 29 July 2002, documents 000110-000116;  also available in French / aussi disponible en français;

"Question 3a: Should automatism be defined in the Criminal Code?

Response: The codification of the defence of automatism is problematic.

Rationale: The legal concept of automatism has no clinical diagnostic equivalent.  The behavioral manifestation of the psychiatric symptom of dissociation would be a close comparison.  In law, the finding of automatism is based usually on a lack of memory of the offence.  The scientific validity of the concept of automatism in a court context is questionable.

The further division of of automatism into insane and non-insane is artificial.  Certainly there are no treatment protocols or practice guidelines for the treatment of non-insane automatism.

Placing court generated automatism cases in psychiatric care simply frustrates mental health systems, which are devoted to the treatment of persons with mental disorders.  The ethical psychiatrist, receiving such a referral from the court, would be obliged to do a diagnostic work-up and conclude that there is no mental disorder.  We would, therefore, strongly discourage them sent to the mental health system.

Question 3b: At present, a finding of non-insane automatism requires a complete acquittal, even on the most serious charges.  Is this appropriate or should the courts have the power to impose supervisory orders in some cases of non-insane automatism?

Response:  The courts should not have the power to impose supervisory orders in cases of non-insane automatism.

Rationale: There is no justification for requiring mental health personnel to supervise a non-mentally ill person." (pp. 2-3)

BROUGHTON, R., R. Billings, R. Cartwright, D. Doucette, J. Edmeads, M.  Edwardh, F. Ervin,  B. Orchard, R.  Hill, and G. Turrell, "Homicidal  somnambulism: a case report" (1994) 17(3) Sleep 253-264; copy at Ottawa University, QP 425 .S37, Location: RGN Periodicals; discusses in part  R. v. Parks, [1992] 2 S.C.R. 871;

"Summary:  A case of homicide and an attempted homicide during presumed sleepwalking is reported in which somnambulism was the legal defense and led to an acquittal.  Other possible explanations including complex partial seizures, dissociative state, rapid eye movement sleep behavior disorder and volitional walking behavior are discussed.  The evidence supporting the probability that this act occurred during an episode of somnambulism and sleep-related confusional arousal is reviewed and weighed.  This evidence includes personal and family history of somnambulism and related disorders; neurological, psychiatric and psychological assessments; presence of possible precipitating factors; and polysomnographic date.  Key words: Somnambulism -- Homicide -- Agression." (p. 253)

BRUDNER, Alan, "Insane Automatism: A Proposal for Reform", (2000) 45 McGill Law Journal 65-85;

Summary
"Courts have confined the common-law defence of sane automatism by defining disease of the mind, a requisite component of insane automatism, so broadly as to ensnare anyone whose automatism might recur and lead to violence. This definition of insane automatism in terms of dangerousness means that persons found innocent of wrongdoing are detained and possibly confined for their own good (as others see it) or for what they might do in the future, in the absence of the only justification for giving force to these reasons consistent with respect for their autonomy. That justification is that the person acquitted is suffering from a mental disorder that severely impairs his capacity for autonomous action, justifying diminished respect.  The Criminal Code definition of legal insanity honours this justification, but the common-law definition of insane automatism does not.  Accordingly, a disease of the mind should be redefined as any mental disorder that renders the person generally incapable of appreciating the reasonably foreseeable consequences of his actions or of understanding information relevant to executing his conception of well-being. While this definition would channel fewer acquittees into the post-trial disposition hearing, it provides as much protection from dangerous  persons as a free society permits. If impaired autonomy rather than dangerousness were the criterion of insane automatism, there would be no need to make the pleas of sane and insane automatism mutually exclusive or to place the burden of proving involuntariness on the accused." (source: http://journal.law.mcgill.ca/abs/451brudn.htm; accessed on 1 July 2002; version française du résumé est aussi disponible à ce site)

CAIRNS-WAY, Rosemary, Renate Mohr, Toni Pickard and Phil Goldman: Dimensions of Criminal Law, 2nd ed., Toronto: Emond Montgomery, 1996, xxvi, 999 p., see "Automatism", at pp. 517-546, ISBN: 0920722822;
 

CAIRNS-WAY, Rosemary, 1956-, Dimensions of Criminal Law -- Toni Pickard, Phil Goldman, Renate M. Mohr, 3rd ed., Toronto: Emond Montgomery Publications, 2002, xxvi, 1004 p., on automatism, see  pp. 623-674, ISBN: 155239050; copy at Ottawa University, location: FTX general, KE 8808.5 .P528 2002;
 

CALLWOOD, June, The Sleepwalker, Toronto, Lester & Orpen Dennys, 1990, 349 p., ISBN: 0886193540; copy at Ottawa University, MRT General, HV 6535 .C33 S38 1990; deals with the case of  R. v. Parks, [1992] 2 S.C.R. 871;
 

CAMERON, Jamie, "Dickson's Law: 'Manifestly One of the Humanities'", (2004) 53 University of New Brunswick Law Journal 93-127,
 

CAMPBELL, Kenneth L., "Psychological Blow Automatism: A Narrow Defence", (1980-81) 23 The Criminal Law Quarterly 342-368; copy at Ottawa University, KE 8802 .C534  Location: FTX Periodicals;
 

CANADA, Department of Justice Canada, Criminal Law Review,  Mental Disorder Project: Discussion Paper, [Ottawa: Department of Justice Canada], September 1983, xii, 421 p., see "Chapter 5 - Automatism and Criminal Responsibility" at pp. 145-161, available at my Digital Library  http://www.lareau-law.ca/DigitalLibrary.html; also published in French / aussi publié en français: Ministère de la Justice Canada, Révision du droit pénal, Projet sur le désordre mental - Document de Travail, {Ottawa: Ministère de la Justice Canada], Septembre 1983, xiii, 456 p., voir "Chapitre 5 -- Automatisme et responsabilté pénale" aux pp. 160-178;

"[p. 147]
AUTOMATISM AND CRIMINAL RESPONSIBILITY

INTRODUCTION

The defence of automatism is related to but separate from the defence of insanity.  Ritchie J., in delivering the majority judgment of the Supreme Court of Canada in Rabey v. The Queen defined it as follows:

'Automatism is a term used to describe unconscious, involuntary behaviour, the state of 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.'

Canadian decisions have recognized that a state of non-insane automatism may follow from the following circumstances: a physical blow, physical ailments such as a stroke, hypoglycaemia, sleepwalking, involuntary intoxication or psychological factors such as a severe psychological blow.

In Rabey, the majority restricted the instances in which unconscious, involuntary conduct induced by psychological factors or blows will constitute a defence of automatism rather than insanity.  The court broadly defined the term 'disease of the mind' and restricted any unconscious, involuntary behaviour induced by a disease of the mind to the defence of insanity.  Any malfunctioning of the mind which results in unconscious, involuntary conduct will be classified as a disease of the mind if its source is primarily some internal, subjective condition or weakness in the accused's psychological or emotional make-up and is not the transient effect of some specific external factor such as concussion or drugs.

The court held that the common emotional stresses of  life do not constitute an external cause of an accused's 'dissociative state' such as to give rise to the defence of automatism.  Dissociative states arising from emotional shocks will, at best, constitute automatism only when the event giving rise to the emotional shock is so extraordinary that it might reasonably be assumed that an average, normal person would be similarly affected.

In Rabey, the court held that the accused's dissociative state, if proven, constituted a disease of the mind and thus the proper defence was insanity, not automatism.  Likewise, in the cases of MacLeod, Rafuse, and Revelle, the courts

[p. 148]
have held that 'dissociative states', arising from psychological factors such as grief and mourning, anxiety and insults as to sexual capabilities, constitute diseases of the mind and thereby give rise to the defence of insanity.

CANADA, Department of Justice Canada, Brian Jarvis and Darren Littlejohn,  Reforming the General Part of the Criminal Code: A Summary and Analysis of the Responses to the Consultation Paper, [Ottawa]: Department of  Justice Canada, Communications and Consultation Branch, 1995, 123 p., and see "Question 8 -- Acting as an automaton", at pp. 58-63; document obtained by François Lareau with letter from Department of Justice Canada, Access to Information and Privacy Office, dated 22 February 1999, Request file A98-00147, released pages 000731-000853; this document is available at my Digital Library on Canadian criminal law at, http://www.lareau-law.ca/DigitalLibrary.html; there are also two shorter versions of that document also available at my Digital Library: Reforming the General Part of the Criminal Code: Analysis of the Responses to the Consultation Paper, 51 p., and Analysis of Responses to the Consultation Paper on Reforming the General Part of the Criminal Code -- Executive Summary, 15 p; on these three documents,  see Background Document;

CANADA, Department of Justice Canada, Brian Jarvis, and Darren Littlejohn, Communications and Consultation Branch, Reforming the General Part of the Criminal Code - Analysis of Responses to the Consultation Paper, [Ottawa]: [Department of Justice Canada], August 1995, 51 p., see "Acting as an Automaton" at pp. 24-26; document obtained by François Lareau, further to an Access to Information Act request of 21 August 1998 to the Department of Justice Canada, request number A98-00147, documents number 000894-000896 (for the complete document ask for pages number: 000871-000921); this document is available at my Digital Library on Canadian criminal law at, http://www.lareau-law.ca/DigitalLibrary.html;

"[p. 24]
ACTING AS AN AUTOMATON

Questions posed:
Should the General Part codify the case law to permit an acquittal where the automatism is not caused by mental disorder and to permit a verdict of not criminally responsible on account of mental disorder where that is the cause of the automatism?

Should the General Part include a special verdict of not criminally responsible on account of automatism which would allow the court to make such an order (e.g. discharge or custody)?

RESPONSES:
Responses to these questions were received from 20 members of the general public, 2 members of the medical community, 1 community service group, 1 women's group, 2 other federal government departments, 1 legal academic, and 1 police organization.

GENERAL PUBLIC:
Respondents from among the general public agreed unanimously that the General Part should not codify the existing case law to permit an acquittal based on automatism.  While some agreed a defence of 'insane automatism' should be allowed, most felt that mentally incapacited individuals should not be completely exonerated of crimes.  For 'sane automatism', it was widely felt that no defence should be available.  The most favoured option was the inclusion in the Code of a special verdict of not criminally responsible on account of automatism, which would allow the court to make such an order.  Most felt this option provided the courts with the necessary flexibility to deal with specific cases.  The suggestions for possible court orders included punitive measures such as confinement of offenders as well as rehabilitation and medical treatment.

Several respondents questioned the entire notion of 'sane automatism.'  It was hard for many to accept that sane individuals could commit crimes without any conscious direction of their actions.

The legal issue of mens rea aside, the general public felt that individuals who choose to impair their abilities must take responsibility for their actions.

[p. 25]
MEDICAL COMMUNITY
The Canadian Nurses Association recommended that the concept of automatism be abolished.  In their view, behaviour and the function of the body are governed by the mind, whether normal or disordered.  The distinction between sane and insane automatism is arbitrary and is not supported by medical evidence.  If court orders call for treatment and health care, the Association believes court orders must be monitored closely in order to measure their effectiveness and therapeutic value.

This position is also supported by the Manotoba Association of Registered Nurses and the Canadian Psychiatric Association.

COMMUNITY SERVICE GROUPS
The Church Council on Justice and Corrections argued that the issue of automatism should be addressed as part of a larger category dealing with mental states.  In their view, the real problem is with the credibility of the evidence adduced to demonstrate automatism rather than with the formulation of a specific 'defence.'

WOMEN'S GROUPS
The Catholic Women's League said it would be preferable to have the courts make the order regarding the disposition of the person found not criminally responsible on account of automatism.  They fear that any kind of defence could become an excuse for regular substance abusers.  For any defence to have validity, the League believes there would have to be stringent regulations concerning the medical evidence which is adduced to demonstrate either sane or insane automatism.

The League also raised the following questions: 'Where would persons judged insane automatons be placed in view of the closure of psychiatric hospitals and wards across the country?  Who is going to determine that this insanity is no longer present and how would the accused eventually attain freedom?'

FEDERAL/PROVINCIAL GOVERNMENTS
[part of the document exempted under s. 21(1)(a) & (b) of the Access to Information Act]
The Canadian Heritage Department supported the option of giving courts the discretion to provide orders through a special verdict of 'not criminally responsible on account of automatism.'  The department certainly feels that a distinction should be drawn between voluntarily and non-voluntarily induced automatism.

[p. 26]
POLICE ORGANIZATIONS
The RCMP response favoured the creation of a new verdict which would allow the courts to make special orders.  In their view, this would give the courts a necessary degree of flexibility and allow judges to safeguard the interests of the accused while also providing for public safety concerns.

LEGAL ACADEMICS
One Legal academic responded to this question.  Her main concern was that the paper did not deal with 'automatism proceded by prior fault ie. the epileptic who drives in disregard of physicians instructions and causes an accident.'  In her view, the law should continue to impose liability in such cases -- 'there is sufficient blameworthiness arising from the decision to disregard a foreseeable risk (assuming the offence is not one which requires higher mens rea than recklessness).'

The professor was also concerned that the proposal of creating a new special verdict would be subject to detention, and could therefore elicit a Charter challenge.

Finally,  the professor suggested that the revised General Part define the border between sane and insane automatism.  For example, are certain health conditions like diabetes going to be included within sane or insane automatism?"

CANADA, Department of Justice (Criminal Law Review), Gilbert Sharpe and Judi Richter, Mental Disorder Project, Criminal Law Draft Report, [Ottawa: Department of Justice], May 1984, iv, 95 p., see "Automatism and Criminal Responsibility" at p. 30; also published in French/aussi publié en français: Ministère de la Justice Canada, Gilbert Sharpe et Judi Richter, Projet sur le désordre mental, Revision du droit pénal - Projet de Rapport, [Ottawa: Ministère de la Justice Canada], mai 1984, iii, 110 p., voir "Automatisme et Responsabilité pénale" aux pp. 33-34;
 

CANADA, Department of Justice (Criminal Law Review) and Gilbert Sharpe, Mental Disorder Project, Criminal Law Review, Final Report, [Ottawa: Department of Justice Canada], September 1985, iv, 106 p., see "Automatism and Criminal Responsability" at pp. 31-32; available at my Digital Library http://www.lareau-law.ca/DigitalLibrary.html; note that the "Summary of Recommendations", pp. 71-80 is also found in Gilbert Sharpe, The Law & Medicine in Canada, 2nd ed., Toronto and Vancouver: Butterworths, 1987, xxxiii, 642 p. at Appendix K, pp. 617-622, ISBN: 0409865907; also published in French/aussi publié en français: CANADA, Ministère de la Justice Canada (Revision du droit pénal) et Gilbert Sharpe, Le désordre mental - Rapport final, [Ottawa: Ministère de Justice Canada], Septembre 1985, iv, 117 p., voir "Automatisme et responsabilité pénale" aux pp. 34-35; disponible à ma bibliothèque digitale, voir, http://www.lareau-law.ca/DigitalLibrary.html;
 

"AUTOMATISM AND CRIMINAL RESPONSIBILITY
Discussion
The defence of automatism is related to but separate from the defence of insanity.  Ritchie J., in delivering the majority judgment of the Supreme Court of Canada in Rabey v. The Queen, defined it as follows:

'Automatim is a term used to describe unconscious, involuntary behaviour, the state of 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.'

Canadian decisions have recognized that a state of non-insane automatism may follow from the following circumstances: a physical blow, physical ailments such as a stroke, hypoglycaemia, sleepwalking, involuntary intoxication, or psychological factors such as a severe psychological blow.

The significant distinction between automatism and insanity lies in their different consequences: automatism results in an outright acquittal, while insanity results in a special verdict, followed by the possibility of indefinite confinement.

Some have suggested that the gradation of consciousness offered by psychiatrists is as arbitrary as the law's simplistic conscious/unconscious distinction.

The courts have expressed concern about their ability to test the veracity of an automatism defence.  As Dickson J. stated in the Rabey case:

'Automatism as a defence is easily feigned.  It is said the credibility of our criminal justice system will be severely strained if a person who has committed a violent act is allowed an absolute acquittal on a plea of automatism arising from a psychological blow.'

Other criticisms have resulted in a careful delineation by the courts of the kind and manner in which expert evidence is presented on this issue.

Although issues pertaining to Automatism and Criminal Responsibility were considered as part of the review and were comprehensively presented in the Discussion Paper, this area did not emerge as a significant one and thus was not discussed to any great extent throughout the consultations.

25.  IT IS RECOMMENDED THAT THE STATUS QUO BE MAINTAINED WITH RESPECT TO AUTOMATISM." (pp. 31-32)

CANADA, Department of Justice Canada and James W. O'Reilly, Toward a New General Part of the Criminal Code of Canada - Details on Reform Options-, [Ottawa]: [Department of Justice Canada], [December 1994], ii, 50 p., see "Automatism" at pp. 34-37; available at my Digital Library http://www.lareau-law.ca/DigitalLibrary.html; also published in French/aussi publié en français: CANADA, Ministère de la Justice Canada et James W. O'Reilly, Pour une nouvelle codification de la Partie générale du Code criminel du Canada - Options de réforme-, [Ottawa]: [Ministère de la Justice Canada], [décembre 1994], ii, 51 p., voir "L'automatisme" aux pp. 34-37; disponible à ma bibliothèque digitale, voir, http://www.lareau-law.ca/DigitalLibrary.html;
 

"Discussion and Options
The White Paper proposes that the defence of automatism be expressly recognized in the General Part as a defence of incapacity which results in an exemption from criminal responsibility, and be treated similarly to the defence of mental disorder.  The Criminal Code defines mental disorder as 'a disease of the mind'.  Under the current law, automatism that is the product of mental disorder is dealt with under the mental disorder provisions of the Criminal Code.  Accused persons who act in an automatistic state caused by mental disorder are subjects to the kinds of dispositions that apply to those found not criminally responsible on account of mental disorder.  On the other hand, automatism that derives from an external source, such as a blow to the head that causes unconsciousness, results in a complete acquittal.

Thus the White Paper departs from the current law by recognizing automatism as fundamentally an issue of capacity for criminal responsibility rather than an issue of guilt or innocence.  As in the case of mental disorder, once the accused is found incapable, the issue of guilt or innocence does not arise.  In the case of automatism caused by an external source, the result would be a finding of not criminally responsible on account of automatism and an exemption from criminal responsibility.

The White Paper in s. 7 proposes enactment of a new s. 16.1 that would create the defence of automatism and define it as 'a state of unconsciousness or partial consciousness that renders a person incapable of consciously controlling their behaviour'.  This definition is based on the view that forms of automatistic behaviour such as sleepwalking, which may involve a complex series of acts, are not involuntary, but are directed by the unconscious or partly conscious mind.  The requirement that the state of unconsciousness or partial partial consciousness must be the cause of the incapacity would distinguish automatism from those situations where a person suffers from muscle spasms or reflex actions, of which the person is conscious, but which the person cannot control.  As such, uncontrollable muscle spasms and reflex actions would continue to be dealt with on the basis of an absence of voluntariness.  An accused who suffered from one of these rare disorders would be acquitted under the White Paper's approach.

As with the defence of mental disorder, the burden would be on the accused to prove automatism on the balance of probabilities.  An alternative to the White Paper's approach would be to recognize and codify the defence of automatism as a defence of incapacity, which results in an exemption from criminal responsibility, but not place the burden of proof on the accused.

In addition, the White Paper provides for the enactment of procedures for dealing with those found to have committed acts that formed the bases of offences while in a state of automatism.  Section 14 of the White Paper would establish a set of procedures analagous to those that now apply to the defence of mental disorder, which would permit the court or review board to make a variety of dispositions in relation to the accused.  These dispositions are set out in the proposed s. 772.98 and include absolute discharge, conditional discharge or detention in hospital.

The effect of the White Paper's approach would be to treat cases of automatism similarly to mental disorder.  However, the distinction between automatism deriving from mental disorder and other causes of automatism would be preserved.  In the former case, the result would be a finding of not criminally responsible on account of mental disorder (see White Paper s. 672.97(2)).  Where the automatic state was not the product of mental disorder, the result would be a finding of not criminally responsible on account of automatism (see White Paper s. 672.97(1)).

Alternatively, mental disorder could be defined to include automatism, which was the proposal that the Canadian Psychiatric Association presented to the Parliamentary Sub-Committee.  The later approach would mean that all persons who acted in an automatistic state would be labelled as mentally disordered, which could stigmatize persons whose automatism was not due to a mental disorder.

The reason for creating procedures similar to those for mental disorder, in order to permit different dispositions of the accused, is that even in cases where the source of the automatism is not due to mental disorder, the person may be a danger to the public and should not necessarily be released without conditions into the community.  Under the White Paper's approach, there would be an opportunity to consider the risk the accused presents to the community and make an order for release, discharge under conditions, or detention in hospital.

An alternative to the White Paper's approach would be, in cases of automatism not due to mental disorder, to empower judges to acquit the accused and notify the appropriate provincial authorities, who would consider whether the accused should receive treatment.

A final alternative, would be simply to preserve the current law under which an accused is acquitted where there is evidence of automatism not resulting from mental disorder.

Options in Relation to Automatism

Option 1: The General Part could provide a regime for automatism not due to mental disorder that paralleled the treatment of mentally disordered persons by placing the burden of proof on the accused and, where the defence was made out, empowering courts and review boards to make dispositions in relation to the person (White Paper approach).

Option 2: The definition of mental disorder in the Criminal Code could be amended to include automatism.

Option 3: The General Part could provide that, in the case of automatism not resulting from mental disorder, courts could acquit the accused and, where there was a concern about the recurrence of automatism, would be empowered to notify appropriate provincial authorities of the case.

Option 4: The General Part could provide that accused persons who suffered from automatism not due to mental disorder receive an acquittal.

Option 5: The General Part: could recognize and define the defence of automatism without placing the burden of proof on the accused to establish the defence." (pp. 34-37)

CANADA, Department of Justice Canada, Reforming the General Part of the Criminal Code: A Consultation Paper, [Ottawa]; [Department of Justice Canada], [November 1994], v, 35 p., see "Acting as an automaton" at pp. 15-16; available at my Digital Library http://www.lareau-law.ca/DigitalLibrary.html; also published in French/aussi publié en français: Ministère de la Justice Canada, Projet de réforme de la Partie générale du Code criminel : Document de consultation, [Ottawa], [Ministère de la Justice Canada], [Novembre 1994], v, 39 p., voir "L'automatisme" aux pp. 18-19;

"Acting as an automaton
[Is a person responsible for criminal actions when in a state of automatism?]

'Automatism' means a condition in which a person acts without being completely aware of what he or she is doing.  For example, a sleepwalker might get out of bed, go to the kitchen and prepare a snack  The sleepwalker has no memory of doing this, although the snack was eaten.  The sleepwalker is an 'automaton' or in a state of 'automatism' when preparing the snack, because the actions were not guided by a conscious mind.

There are many situations where a person may act in a state of unconsciousness or partial consciousness.  For example, a person who is hit on the head or a person who takes the wrong medication may become an automatom.

While the actions of an automaton who prepares a snack may be harmless, the actions of an automaton who picks up a knife and stabs someone are not.  How should the law deal with a person who does some act which is a criminal offence while in a state of automatism?

At present, the Criminal Code does not deal with automatism; however, judges have had to decide what to do in cases raising the issue.  Current case law recognizes two types of automatism: 'insane automatism' and 'sane automatism.'

• 'insane automatism' describes the automatism that is caused by a mental disorder, which is defined in the Criminal Code as a disease of the mind.  It will result in a finding of not criminally responsible on account of mental disorder.  The Criminal Code currently allows for a range of results, including being sent to a hospital.

• "Sane automatism' is automatism that is caused not by a mental disorder but rather by some external factor.  It will result in a verdict of not guilty.

Medical evidence is usually necessary to help the judge or jury decide whether a person was in a state of automatism and the cause of automatism.

Some people feel that the Criminal Code should define automatism and that leaving the law to the courts without any legislation is too uncertain.  They worry that a finding of sane automatism results in a not-guilty verdict even though there may be public safety concerns about allowing the accused to go free.

The White Paper suggests creating a new verdict of 'not criminally responsible on account of automatism,' which woul allow the court to make an order ranging from discharge to custody in a hospital, as appropriate.

QUESTION (8)
Should the General Part codify the case law to permit an acquittal where the automatism is not caused by mental disorder and to permit a verdict of not criminally responsible on account of mental disorder where that is the cause of the automatism?
    -or-
Should the General Part include a special verdict of not criminally responsible on account of automatism which would allow the court to make such an order (e.g. discharge or custody)?" (pp. 15-16)

CANADA, Government of Canada, Response to the 14th Report of the Standing Committee on Justice and Human Rights : Review of the Mental Disorder Provisions of the Criminal Code, [Ottawa]: [Department of Justice Canada], November 2002, 36 p., available at  http://canada.justice.gc.ca/en/dept/pub/tm_md/index.html (accessed on 8 November 2002); also published in French/aussi publié en français: CANADA, Gouvernement du Canada, Réponse au 14e rapport du Comité permanent de la justice et des droits de la personne: Examen des dispositions du Code criminel relatives aux troubles mentaux, [Ottawa]: [Ministère de la Justice Canada], Novembre 2002, 41 p., disponible à  http://canada.justice.gc.ca/fr/dept/pub/tm_md/index.html (visionné le 8 novembre 2002);

AUTOMATISM (S. 2)

RECOMMENDATION 2

The Committee recommends that the definition and application of the law relating to "automatism," both sane and insane, be left to the courts.

COMMENTS

The Government agrees that the Criminal Code should not be amended at the present time to codify a verdict of automatism. Any reforms regarding automatism should be considered only as part of a comprehensive review of the General Part of the Criminal Code to ensure a principled and consistent approach to defences.

As the Committee noted, in 1993 the Department of Justice released a Consultation Paper on the Reform of the General Part of the Criminal Code which raised the issue of whether the General Part should codify a verdict of  not criminally responsible on account of automatism or codify the case law to permit acquittal for non-insane automatism. Draft amendments were proposed in a White Paper in 1993 to provide for the verdict of not criminally responsible on account of automatism. Automatism was defined as "a state of unconsciousness that renders a person incapable of consciously controlling their behaviour while in that state."

Although the amendments were not pursued, the case law has provided further guidance.

In R v. Stone [1999] 2 SCR 290, the Supreme Court of Canada clearly established the law governing the defence of automatism, noting that two forms of automatism are recognized at law. "Non insane automatism" refers to an involuntary action that does not arise from a disease of the mind; such a finding results in an acquittal. "Insane automatism" refers to involuntary action that results from a disease of the mind. Insane automatism triggers a section 16 verdict of not criminally responsible on account of mental disorder.

The Supreme Court set out a two-stage approach where claims of automatism are made. First, the trial judge must conclude that there is evidence upon which a properly instructed jury could find that the accused acted involuntarily, on a balance of probabilities. Confirming psychiatric evidence is essential. Several factors must be considered, including the severity of the       triggering stimulus, corroborating evidence and any history of automatistic behaviour. Second, the trial judge must determine if the condition is a mental disorder (insane) or non-mental disorder (sane) automatism.

If the judge concludes that the condition asserted is not a disease of the mind, only the defence of non-mental disorder (or non-insane) automatism will be available. The question for the trier of fact is whether the defence has proven on a balance of probabilities that the accused acted involuntarily. If so, he or she will be acquitted.

If the judge concludes that the condition is a disease of the mind, only the defence of mental disorder automatism is available. The case proceeds in same manner as any other section 16 – case the defence must prove, on a balance of probabilities, that the accused suffered from a mental disorder that rendered him or her incapable of appreciating the nature and quality of the act.

R v. Stone clearly states the law and has been consistently applied by courts. Sane automatism has been established in very few cases. Automatism remains a rare and unusual event, and given the Supreme Court of Canada decision in Stone there is no pressing need for codification." (pp. 3-4)
 

    "[p. 6 : 4]
    Dr. MacKay [Member, Board of Directors, and Chair-Elect, Section on Women's Issues, Canadian Psychiatrict Association]   Perhaps what I can do is review the brief that we have submitted.  The Canadian Psychiatric Association on behalf of its 2,400 members, welcomes the opportunity to discuss the draft document towards a general part of the Criminal Code of Canada.  The CPA is pleased to offer comment on the revision of those parts of the Criminal Code that govern the arrangements our society provides for persons both mentally ill and in conflict with the law, specifically today those that pertain to the concept of automatism.

    The CPA wishes to address the concept of automatism as outlined in the document, and we offer a list of our concerns and the recommendations that arise out of these concerns.  Our recommendations below incorporate the following assumptions.

    With respect to automatism, the law historically has been influenced by the Cartesian mind-body dichotomy.  In this model, functional illness roughly correlates with diseases of the mind and organic illnesses with diseases of the brain or the body.  Organic mental disorders are defined as those disorders causally related to demonstrable pathology.  Functional mental disorders are those disorders in which there is no demonstrable pathology.

    [p. 6 : 5]
    However, with modern technology this distinction is disappearing.  The ability to produce scans that reflect cellular function allowing visualization of anatomical features of the living brain of smaller and smaller dimensions makes it possible to identify abnormalities in brain structure and function and illnesses that were previously identified as functional.  One example is that CT scans of the brain show an increase in ventricular size in schizophrenia.  PET scans identify patterns of glucose utilizations that differ in schizophrenia, depression, and the normal brain.  Sophisticated biochemical markers offer the promise to identify illnesses previously considered functional as organic.  As this continues, the brain-mind dichotomy and the functional-organic distinction becomes less useful and less correct.

    The recent amendments use the term 'mental disorder'.  This is meant to replace what was defined in law as disease of the mind.   Mental disorder includes broad categories in current psychiatric classification systems, one of which is organic mental disorder.

    Mind, when defined in the metaphysical sense or on the basis of where it resides or what it looks like, appears to be an abstract concept.  However, when the mind is defined functionally, that is from the perspective of what it does, then it becomes clear the mind is a physical, practical, and demonstrable entity.  The mind thinks, has feelings, has memory, has judgment, creates gestures, directs behaviour, and has an awareness of the function of the human person and surroundings.  Therefore, when the mind is conceptualized in terms of what it does, it becomes at once a practical, demonstrable, and a biological system of the human person.  This system is intimately tied with other systems in the human body, such as the endocrine, cardiovascular, respiratory, and indeed all systems of the body.

    Hypoglycemia, hypo or hyperthyroidism, which are disturbances of the endocrine system, can cause disturbances of the function of the brain which can lead to mental disorders and abnormal behaviours that may be against the law.  Such mental disorders are termed organic mental disorders in the modern psychiatric classification of disorders.  The fact that the original dysfunction, such as hypoglycemia, is outside of the brain only points to the cause of the mental disorder.  It nevertheless is an organic mental disorder caused by a disturbance in the body of enough severity to affect the function of the mind.  There are of course conditions of hypoglycemia of a mild form that are not sufficient to cause a disturbance of mental function.

    Temporal lobe epilepsy, sometimes known as a partial complex seizure, is another example.  During an epileptic seizure, called the ictal state, or during the period immediately following the seizure, called the post-ictal state, a person may behave in an abnormal or illegal way.  This behaviour is not independent of the person's mind.  It is a result of an organic disorder of the mind affected by electrical disturbances in the brain which can be demonstrated on EEG.  The body therefore is functioning with a disordered brain and mind in command, and not independently of the brain and the mind.

    In dementia, such as Alzheimer's disease, memory and judgment are affected, as they are in somebody suffering from a stroke, as they may be in somebody who has pneumonia.  The infection of the pneumonia can lead to an organic mental disorder in a susceptible person.

    Sleepwalking and somnambulism is also a disorder demonstrable by EEG.  In the illnesses cited above, they are physical illnesses causing organic mental disorders, and they may recur or they may be permanent.  All require careful psychiatric and medical monitoring.

    The next point we would like to make is that automatism, the concept itself, assumes a dichotomy of the mind and body.  When it is said the accused functions as an automaton, it is meant that the body is acting independently and separately from the mind.  Such an assumption is erroneous.  The behaviour and the function of the body is always governed by the mind, whether it is normal or disordered.

    The concept of automatism of automatism based on a factor external and affecting the mind can't be supported.  The difficulties with the concept of automatism are many, but they include the following.  First, we currently understand that disturbances in behaviour, emotion, and cognition reflect altered brain function, whether the cause is a blow to the head, carbon monoxide poisoning, brain tumours, stroke, schizophrenia, whatever.  In that sense, all are mental disorders.

    The second point is that some behavioural disturbances included in automatism -- for example, somnambulism -- have been demystified by medical science.  The sleep laboratory EEG is abnormal in somnambulists, hence the behaviour becomes the result of altered brain physiology and not a mystical experience.

    Third, some causes of disturbance in behaviour, emotion, and cognition, which by law have been included in automatism, have the potential for recurrence.

    The distinction between sane and insane automatism has come only to be meaningful in a legal sense.  Behaviours classified in law as sane and insane automatism are both the result of identifiable mental disorders.

    The last point we would like to make about this is that the use of the term 'dissociative state' in law differs significantly from current psychiatric nomenclature.  Dissociative states in current psychiatric nomenclature include: one, highway hypnosis; two, multiple personality disorders; three, psychogenic fugue; and four, somnambulism.  In these states the body does not function independently of the brain but operates as a result of mental disorder.  The dissociative states caused by an external factor such as hypoglycemia are mental disorders, and such disorders may be discreet and short lived but may have the potential for recurrence.

    [p. 6 : 7]
    Out of these concerns we would like to make two recommendations.  The first is that illnesses that are thought to cause automatism are mental disorders and as such they should fall under the present legal definition of mental disorder and be dealt with under the new law governing mentally disordered offender.  This law allows the flexibility of the disposition of the accused as appropriate under section 672.54.

    The second, which really falls out of the first, is that this concept of automatism has no place in law.  It's the wish of the Canadian Psychiatric Association that it be abolished.  Given that that may not be practical, at least we would ask that it not be codified.
......

    The Chairman:  Could you put that in laymen's language?

    Dr. MacKay:  That's really a very difficult issue, because of the problems we repeatedly come up against is that a legal definition of a phrase such as 'disease of the mind' and the usual common, vernacular medical use of the word are different.  Again, we see this with 'dissociative state', which I attempted to define specifically in number E, because in the document the use of the term 'dissociative state' is used in a way to describe entities that we in modern medical language would call 'organic mental disorders' not 'dissociate states'.

    It's very difficult, in the courtroom setting, where you have lawyers and sometimes judges who don't work in this area taking evidence from physicians who are asked a question, not understanding what the legal definition of 'disease of the mind' implies, and who will answer that question assuming a medical perspective on what a disease is.  It's not an easy area.  I think the legislation has to make it as user-friendly as possible.

    Mr. Rideout [member of the Sub-Committee] I don't know where to begin.  You indicated that there's a dichotomy of mind and body, and automatism assumes that dichotomy.  While I may accept that, what I'm grappling with is whether it is conceivable that a person may do some things that he or she can't control because of maybe an organic mental disorder or whatever.  When the law looks at the criminal law side of things and talks about mens rea and actus reus and forming all of that intent, how can we deal with that situation?  I gather what you're going to tell me is just to put that down as a mental disorder and throw that all into that one category and leave automatism out?

    Dr. Nizar Ladha (Provincial Director, Newfoundland, and Chair, Section on Forensic Psychiatry, Canadian Psychiatric Association):  I think the new amendments have given us a very good opportunity.  You see, as I understand some of the

    [p. 6 : 8]
legal decisions and the reasoning behind the verdict of non-insane automatism -- and that's what we're really concerned about, because the insane automatism is considered a mental disorder anyway -- if a person is perceived to have committed an offence and he is perceived in law to be acting without a mind, then how can you punish him?  If we do find him mentally ill, why should we lock him up.  After all, he's not responsible and he's not mentally disordered?

    Somebody who gets a blow on the head is a very concrete example.  The new amendments allow the judge to send that person home.  He can be found not criminally responsible as a result of mental disorder, which is exactly what a blow on the head is if the resulting behaviour is uncharacteristic, dangerous, and illegal.  The judge can send him home, but it then allows society to be protected from the unlikely event that this person might act dangerously again.

    The judge can  send him home with conditions.  That person may develop epilepsy a year from now; he may become more impulsive of certain scarring of the brain as a result of that single blow.  It then allows us, as agents of society, if you like, to monitor that person, with his liberty intact, except for this slight infraction of being followed up by a doctor.  I think, that's a very samll price for a person to pay if he has taken somebody's life as a result of a blow on the head.  The same thing applies to a psychological blow.

    Mr. Rideout:  So if I understand where you're coming from, is your concern more in relation to putting some kind of protection, or the judge having some right to keep hold of this person in some way, or the medical profession, in some fashion?

    Dr. MacKay:  No, I don't think that's really what we're saying.  That's a possibility, but what we're saying is that with the new amendments, because at the time of the finding of not criminally responsible due to mental disorder the judge can make a disposition right at the time of the finding of this verdict.  The disposition can include an absolute discharge if that seems appropriate with the evidence before him.  It can include a discharge with conditions, and a condition can be really anything the judge so wishes, be it as simple as being asked to see a doctor once in a month, or as extensive as remaining in hospital until the board of review reviews the case.

    The judge really has those discretionary powers under the new legislation.  Because that is there all the way from being detained in safe custody to an absolute discharge and anything in between, there's no longer the need to exclude people from this group of NGRIs in the old system, which had a very onerous implication if you were found NGRI.

    On the other side, we're saying that with modern medicine we're beginning to understand that all of these things ultimately come down to a disorder of brain function.  A blow to the head -- a concussion, as it would be called

[p. 6 :9]
medically rather than legally -- can lead to some behaviour that could be or may be illegal and get the person into this situation.  We are saying there is no longer the need to make that distinction because the judge has the discretion to let the patient go home, if that is appropriate, from the courtroom.  Medically, scientifically, in our terms of our modern understanding, the old dichotomy doesn't make sense.

    Dr. Ladha:  There are two reasons.  One is a practical reason that we've mentioned, but there is a more fundamental reason.  That's the conceptual reason.  Conceptually, automatism is not correct any longer because the verdict of sane automatism assumes that the body acts independently of the mind.  It does not obtain any longer with what we know today about the mind and body.

    I think the Cartesian theory has really led us up the garden path.

    Mr. Rideout: So you would like to see more purity.

    Dr. MacKay: Simplicity.

    Dr. Ladha:  I think the law must have a separate verdict for people who have a blow on the head or receive psychological injury.  I think temporary insanity or temporary mentally disordered would be a more realistic, more conceptually correct verdict than the concept of automatism.

    Mr. Rideout:  If we were to exclude automatism, would we have to change any of our definitions in order to accomodate that type of situation?  Do you feel that the existing legislation is broad enough without any amendment at all?

    Dr. Ladha:  Absolutely.  I don't think anything would have to be changed in terms of definition because the definition of mental disorder in the amendments, as I understand case law -- and forgive me, I am not a lawyer -- is really broad enough.

    Mr. Rideout: Accepting that we have sufficient, but looking at it just to have a full understanding of where you folks are coming from, if we choose not to go along with your request is there a middle ground, or are there some things you would like to see included?  It may be that we will take your recommendation and that will be the end of it, but if we don't, are there some things that you should see us doing to improve the bad situation?

    Dr. Ladha:  It would be highly sensible to take our recommendation and go with it, of course.

    Mr. Rideout: I appreciate that.

    Dr. Ladha: The middle ground would be some kind of a concept of temporary insanity.

    Mr. Rideout:  From a layman's point of view, I have some difficulty.  I realize what you are saying, and I accept that.  But somebody who gets a blow on the head and does something without any control and somebody who commits a murder while sleepwalking -- that creates two different problems for me.  The likelihood of the first event reoccurring compared to somebody who is a sleepwalker who may sleepwalk tomorrow and murder somebody else -- how you

    [p. 6 : 10]
 deal with those two different things is of some concern.  I am sure you are going to tell me that cannot happen.

    Dr. MacKay: This does raise a kind of difficulty.  If you look at somnambulism, you are right, they may sleepwalk again.  But if you look at the cases in law and the cases in the medical literature, the reoccurrence of a violent or criminal act, particularly murder while sleepwalking, is almost unheard of, which is why somnambulists are acquitted.  In the Parks case, this person murdered somebody while in a state of somnambulism.  But because the medical evidence and the legal cases before the judge were such that there was no recidivism with this particular problem in terms of sleepwalking and committing a violent crime again, that hasn't presented a concern.

    Now, in a way, that's similar to shizophrenia.  Schizophrenia is an illness that relapses, remits, and leaves a person quite ill.  Very rarely do they commit a violent act such as murder. But the recidivism of murder with schizophrenics is very, very low.  It is as low as recidivism with somnambulism.  The marvellous thing about the new amendments is that the judge could look at the evidence before him as to what the likelihood is of reoccurence and make the conditions appropriate to the evidence before him about the recurrence.

    The difficulty you raise with the public perception that somnambulism, a concussion from a blow to the head, is a mental disorder and therefore should be found not criminally responsible due to mental disorder is, I think, the real stumbling block.  It is unfortunate, but I think that's the real stumbling block.  It is hard for people in the public to accept that a blow to the head that gives you a concussion and causes you to drive onto the road and hit someone is the same before the law as somebody who is schizophrenic and murders someone.

    Dr. Ladha:  But, you see, that is what the reality is.  Somebody who gets a blow on the head and behaves in a completely uncharacteristic fashion is not himself or herself.  He is obviously disordered, and that is why he is behaving in a disorderly fashion.  And if you are going to call a spade a spade, he is mentally disordered at the time.

    Rarely in life are we provided with an opportunity of having our cake and eating it too, and I think the new amendments allow us to do that.  We can call that person mentally disordered, acquit him, as it were, and send him home under the new amendments.  The advantage is that we can now follow him up under the new amendments while he is at home, while he carries on with his job, or whatever, because it is possible that his ability to control his impulses

    [p. 6 : 11]
may drop.  It is possible that he may develop epilepsy a year from now.  It is possible that he is more susceptible to having a brain disorder as a result of some other disorder in the body because he has received a very difficult blow to his head in the past.  In a legal sense he walks away scot-free, if you like, but in a medical sense he definitely may not.

    The new amendments allow us to do that.  And if we keep the defence of automatism, we lose this opportunity the new amendments allow us.

    Mr. Rideout: I can see where you are coming from in that sense.  Even professor Gerry Ferguson recommends that there be some supervisory order capability in dealing with that situation, which roughly falls into where you are coming from.

    ......

    The Chairman: Would you tell me how a psychological blow, or the dissociative state of mind around the time of a divorce -- as a lawyer, I often found people were very upset around the time of a divorce -- would qualify as a mental disorder?

    I am trying to make a connection between a psychological blow, which is part of the definition of automatism, and that falling within a mental disorder.  I am thinking of the situation of people at the time of divorce.  They often behave peculiarly, simply because of the strain of day after day going through the divorce and that mental withdrawal from a relationship.  Would that genuinely qualify as a mental disorder?

    Dr. Ladha:  All of us in this room have received some kind of psychological blow during our life, or a disappointment in life or something like that.  If a person who receives a blow like that, say a girlfriend shunning him -- and there was a case, the Rabey case, where the man was shunned by his girlfriend.  She had written a letter talking about the sexual attraction of another man, or something like that, and he hit her with a rock he had picked up from a geology lab and he killed her.  That was a case of automatism.

    It certainly demonstrates one thing.  This person is susceptible to becoming totally disordered as a result of this kind of psychological stress or psychological blow.  It demonstrate that there is something internal to him, a susceptibility that makes him be affected this way and then behave in a dangerous and illegal fashion.

    [p. 6 : 12]
    What the lawyers talk about is the internal factor as opposed to the external factor.  In my view, a person like that, who shows a susceptibility to becoming disordered to such an extent that he kills somebody, has a propensity to become mentally disordered.  Such a person should be found mentally disordered.

    The middle ground we talk about, temporary insanity, would be one way to go.  The other way to go would be to find him mentally disordered, have him discharged home and then be followed up.

    The Chairman: Ideally, then you would like to see us abandon automatism, as you say, but make some changes to the wording of the former Bill C-30 that will provide for temporary insanity.  I think there would have to be amendments to the bill, would there not?  As I recall your evidence, you were unhappy with the drafting of the McNaghten rules, too, the codification of them.

    Dr. Ladha:  I think Bill C-30, as it stands right now, would take care of the instance of psychological blow to the head.  Would you agree, Maralyn?

    Dr. MacKay:  I am not able to pull out the section, but there is one reference in the bill to automatism.

    In our presentation last time, we requested that it not be in the bill, for the very reasons we are speaking of today.  But it is in the bill; that word does appear in the bill.  Whether the lawyers would look at it and say that if we are not having it in the general part it has to be removed, I am not sure.  But that is one thing that would certainly have to be looked at.

    It is not clear to me where or in what form there would have to be this provision for the middle ground of temporary mental disorder in order that the public could agreeably accept the concept that a concussion of this sort of situation you are describing in the Rabey case is mental disorder as opposed to automatism the way it was before.  I am not sure what would have to happen in terms of drafting.  But those are the two questions that I think come out of it.

    The Chairman: I can sure tell you that the Parks decision isn't washing very well out there in the streets, certainly with my uncles and aunts, and certainly not with my mother-in-law.

    Dr. MacKay:  I think this speaks to the whole concept of automatism and the difficulty with it.  And had this been understood as a mental disorder, I think the judge would have been able to put some conditions on this person that would make the decision more agreeable to the public and yet not unreasonably restrictive for the individual.  I think the legislation now offers that opportunity.

    The Chairman:  Mr. Rosen has a question. We have asked our experts to ask questions, if they wish, throughout these hearings, because they understand this so much better than some of the rest of us.

    [p. 6 : 13]
    Mr. Philip Rosen (Committee Researcher):  Both my questions relate to the Parks decision, which you have just mentioned, Mr. Chairman.  I hope the question about somnambulism doesn't represent my state of mind, but I will try anyway.

    Can you explain  to us how you see somnambulism falling into a mental disordered defence?  I am specifically thinking about the circumstances in the Parks case.  There was a history of sleepwalking in his family.  He had not been sleeping well for the weeks previously, had not been eating properly, and was under considerable financial difficulty.  Apparently he had been defrauding his employer and was about to be charged criminally.  It was under those circumstances that the terrible events occurred while he was sleepwalking.  How would you fit those kinds of circumstances within the mental disordered defence as it exists now?

    Dr. Ladha:  If you look at somnambulism, by definition it occurs during sleep.  It is not a normal part of sleep, as the Parks decision says.  The Parks decision says there is a disorder of sleep.  It occurred during a normal state, sleep.  Sleep is a normal state, and it occurred during sleep.  It did not occur during normal sleep.  It is not a normal part of sleep; it is a disorder of sleep.  In every textbook it is defined as a disorder of sleep.

    Now, why is it called disorder?  During somnambulism there is normal behaviour.  There is walking while the person is asleep;  there is talking.  Sometimes this talk is incoherent.  There is uncharacteristic behaviour.  Parks was an example of that.  The man liked his mother-in-law.  He got along well with them.  It was definitely uncharacteristic behaviour!

    There is abnormal or distinct EEG pattern during somnambulism.  It occurs during a specific part of sleep, stages 3 and 4, the deepest part of sleep.  During what is called the non-REM part of sleep, non-rapid eye movement part of sleep, muscular movement can occur.  During the REM part of sleep muscular movements can't occur because the person is paralysed.

    It may be associated with other disorders, such as anuresis, bed-wetting, night terrors, sleep talking.  The very fact that it runs in families suggest that there is some kind of familiar pattern to this, a genetic pattern, something inherent.

    The fact that he was stressed -- and there are various kinds of stress -- well, that just adds to the argument that it is a disorder, because it does not matter what kind of illness or disorder you look at.  In physical disorders, myocardial infarct occurs more during stressful times.  Depression can be precipitaded by stress, schizophrenia.  So the fact that he was under stress just adds to the thesis that it is a disorder.

    [p. 6 : 14]
    Mr. Rosen: Let's talk about the Parks situation for a moment.  Let's assume that the committee in its wisdom decides that it appreciates your submission but does not accept your recommendation that the defence of automatism should be eliminated.

    Yesterday the committee had presented to it a position by Professor Ferguson, who suggested that the defence be retained but that the minority comments by the judges in the Supreme Court of Canada be followed; that sentencing judges be empowered in some way, where the offence is successfully invoked, to impose some kind of supervisory or treatment order in appropriate cases.  Would you accept that kind of solution to the automatism defence?

    Dr. MacKay: I think that really makes things more difficult.  What is the argument, then, for having automatism?  Historically, automatism has resulted in acquittal.  People were not held to be responsible in any way, for any reason, because it was understood that their body was acting without a guilty mind or a guilty act.

    If that's the assumption, then I don't quite understand how a justice system allows you to dish out some restrictions that, it seems to me, have to be perceived in some way as punishment for an offence committed with a guilty intent or act.  That seems to me very contradictory, so that's one reason that I find it a little bit confusing.

    Second, I don't quite understand why we would make two systems in parallel like this and what would be the distinction between the two.  One of the difficulties you get into with the Parks case is again the difficulty of what I would call a kind of user unfriendly system.  The question would be asked, is somnambulism a disease, by a lawyer who wants to know if this is a disease of the mind, because then that has certain implications in terms of legal decisions and the law.

    If that question is asked of a doctor, who may not have great familiarity with this particular area of the law and the interface between law and medicine, he will think of disease, and they use that word the way doctors use the word 'disease'.  Doctors usually use the word 'disease' where you have some pathology.  We think in terms of diabetes, pathology in the gland of the pancreas.  We think of this not in the same way as the lawyers asking for disease of the mind.  One has one definition in mind; one has another.  One says yes, and something happens; the doctor says no, and something happens.  So I think it adds to the complexity of the system in a way that can lead to problems.

    Dr. Ladha:  Judge Sopinka and others said in the Parks decision that you can't impose restrictions on somebody who has been given acquittal.  I think that imposition of restrictions on somebody who has been given an acquittal would go much more against the grain than abolishing the defence of automatism.  I think abolishing the defence of automatism would be much more practical.

    [p. 6 : 15]
    The Chairman:  Mr. O'Reilly, please.  Would you wind us down in five minutes?

    Mr. James W. O'Reilly (Legal Adviser to the Committee): I'll try.  I was a bit confused by your last remark, when you were suggesting that it would be unfair to impose conditions on someone who had been acquitted of an offence, and therefore you wouldn't favour that for someone acquitted on the basis of automatism.  I thought the outcome of your earlier remarks would be that automatism should be treated as a mental disorder, and then the person could possibly be subjected to conditions imposed by a judge.

    Dr. MacKay: Let me clarify.  My understanding of the reason we've had 'automatism' and, in the past, 'not guilty by reason of insanity' was that we accepted very severe restrictions on somebody who was found not guilty by reason of insanity.  If someone was acquitted on the basis of automatism, no restrictions applied.  That has been the historical distinction.  With the new legislation, people found not criminally responsible due to a mental disorder may be absolutely discharged and leave the courtroom with no restrictions.  On the other hand, they may be held on any number of increasingly restrictive conditions up to and including safe custody.

    So if you don't have the defence of automatism and somebody comes before the court and the evidence before the judge is such that they were temporarily mentally disordered and there's no chance of recurrence, the judge may very well absolutely discharge that person that day.  In effect, they are walking out with no restrictions.  On the other hand, they may have some restrictions, depending on what's appropriate.

    Historically, automatism has been a defence that, if found in your favour, led to an acquittal and no restrictions.  there would be a complete change in the reason for having this defence, it seems to me, if you were to restrict people.  It would no longer be an acquittal.  Can you acquit someone and then put restrictions on them?

    Mr. O'Reilly:  It would be treated precisely the same as acquittal by reason of mental disorder.  It's an acquittal.

    Dr. Ladha:  I thought there was a qualitative difference between an acquittal and a finding of 'not criminally responsible as a result of a mental disorder'.  Although the person is not held criminally responsible because of policy reasons, the person is restricted.

    The old law only allowed us to restrict them completely.  The new law, as Dr. MacKay says, allows us to have no restrictions or have an increasing degree of restrictions.  I think that flexibility is very good.  I understand it as being qualitatively different from acquittal.

    Mr. O'Reilly:  Can I perhaps ask a more specific question?   Under section 16 of the Criminal Code the term that's used is 'mental disorder', and that term is defined as a 'disease of the mind".  In effect, we incorporate the

    [p. 6 : 16]
pre-existing case law on 'disease of the mind' into the existing provision.  How would you define 'mental disorder', or would you define 'mental disorder' under the Criminal Code?  I take it that confining it to a 'disease of the mind' is not acceptable to you.

    Dr. Ladha:  As I understand case law, I think 'mental disorder' has been defined much more broadly than a medical concept of 'disease'.  Under the case law definition, I really wouldn't have any problem fitting the psychological blow scenario or the somnambulism case into 'mental disorder'.  I think they fit in.

    Mr. O'Reilly:  It is more of a technical question at the moment.  Mental disorder means disease of the mind.  So in effect, you would not want it defined as a disease of the mind but allowed to evolve as cases developed.

    Dr. Ladha:  As long as the broad definition within case law is followed, and I think it is there already.  But if you put automatism in the statute, then to a certain extent you apply a kind of strait-jacket."
 

___________Sub-Committee on the Recodification of the General Part of the Criminal Code of the Standing Committee on Justice and the Solicitor General House of Commons,  First Principles: Recodifying the General Part of the Criminal Code of Canada: Report of the Sub-Committee on the Recodification of the General part of the Criminal Code of the Standing Committee on Justice and the Sollicitor General, in Minutes of Proceedings and Evidence of the Sub-Committee on the recodification of the General Part of the Criminal Code of the Standing Committee on Justice and the Solicitor General, [Ottawa]: Queen's Printer for Canada, 1992-93,  issue number 11, of 10 December 1992 and  2, 4, and 16 February 1993 contains the report; in the report, see "Chapter IX   The Defence of Automatism" at pp. 39-43 (Chairperson: Blaine Thacker, M.P., Q.C.); also published in French/aussi publié en français: Chambre des Communes, Sous-comité sur la Recodification de la Partie générale du Code criminel du Comité permanent de la justice et du Solliciteur général, Principes de base: recodification de la Partie générale du Code criminel du Canada.  Rapport du Sous-comité sur la recodification de la Partie générale du Code criminel du Canada du Comité permanent de la justice et du Solliciteur général in Procès-verbaux et témoignages du Sous-comité sur la Recodification de la Partie générale du Code criminel du Comité permanent de la justice et du Solliciteur général,  [Ottawa]: I'Imprimeur de la Reine pour le Canada, 1992-1993, voir le fasicule numéro  11 du 10 décembre 1992 et 2,4,16 février 1993 contenant le rapport; dans le rapport, voir le "Chapitre IX Le moyen de défense d'automatisme" aux pp. 43-47 (Président: Blaine Thacker, député, c.r.);
 

"[p. 39]
CHAPTER IX
THE DEFENCE OF AUTOMATISM

(a) Current Situation

    Even more basic, perhaps, than the principle that the criminal sanction should be imposed only on those whose conduct is morally blameworthy is the idea that a person should be held responsible only for conduct over which he or she had control.  Canadian criminal law recognizes that where a person's conduct was involuntary, it should not give rise to criminal liability.  In effect, if the person's conduct was involuntary, the criminal law does not ascribe responsibility to the person for it.  For example, a person is not guilty of the crime os assault if, because of an involuntary muscle spasm, he or she strikes another person.

    Recognition of the defence of automatism is in keeping with the reasoning.  Automatism is a state uin which the accused can be said to have lost control over his or her conduct because of a mental disorder, a physical illness or condition, a blow to the head, or a psychological shock.  The defence is not, however, provided for in the Criminal Code.  It is one of the defences that has evolved from the common law and is recognized by way of subsection 8(2) of the Code.⁹⁵

    The law does not, however, treat all automatism cases the same.  The legal treatment of automatism cases varies with the source of the dissociative state.  The important question is whether the source of automatism lies in a mental disorder.  If the source of the automatism is a mental disorder (or 'disease of the mind'), the accused is treated the same as a person who pleads not guilty by reason of mental disorder under section 16 of the Code.  He or she may then be released or subject to detention under section 672.54 of the Code.  This is sometimes referred to as 'insane automatism'.  If the source is not a mental illness, the person will be entitled to a complete acquittal.  This is referred to as 'non-insane automatism' or 'sane automatism'.

    Given important distinction, much of the case law is taken up with discussions as to whether the source of the dissociative state lay in the accused's mental make-up or elsewhere.  For example, the case of R. v. Rabey⁹⁶ turned on the question whether the accused's violent unconscious reaction to a psychological blow evidenced a mental disorder.  A majority of the Supreme Court of Canada held that the accused's response manifested an internal weakness.  As such, his dissociative state could not be atributed solely to an external source.  Therefore, Rabey was a case of 'insane automatism'.
----
⁹⁵ See discussion of common law defences above in Chapter IV.
⁹⁶ [1980] 2 S.C.R. 513.
 

[p. 40]
(b) The Sub-Committee's View

    In the course of the Sub-Committee's hearings, a number of submissions were made on the defence of automatism.  Suggestions ranged from various draft codifications to a complete abolition of the concept.

    The Sub-Committee considered five options to address the issue of automatism:

• the recodified General Part of the Criminal Code should not codify automatism; or
• automatism should be codified in keeping with the current common law; or
• automatism should be codified by simply recognizing that involuntariness does not satisfy the physical element; or
• automatism should not result in a complete acquittal -- judges should be able to order a disposition in the same manner as for mentally disordered persons; or
• automatism should be included within the concept of mental disorder.

    The Sub-Committee believes that concerns about the nature and scope of the automatism defence can best be met in the drafting process, as opposed to excluding the defence from codification in the General Part.  In the words of the Quebec Bar:

'...it is imperative to proceed with codification and legislative rationalization of all the rules, because at present people on trial must rely on specific decisions by the Supreme Court in judgments that leave many questions unanswered.⁹⁸

    Thus, in the interests of certainty and consistency, the Sub-Committee does not favour leaving the defence of automatism to the common law.

    The fourth and fifth options would change the ultimate result for those who are successful in pleading the automatism defence.  Both seek to address the issue raised in a minority decision in the Parks⁹⁹ case concerning the acquittal of persons who may constitute a continuing threat to society.

    Professor Gerry Ferguson of the University of Victoria proposed the following special verdict and disposition for automatism, as additions to the CBA Task Force draft provisions:

'Where evidence of automatism is given at trial and the accused is acquitted, the judge or jury shall declare whether the accused was acquitted by reason of automatism.

----
⁹⁸ Issue 4:7.
⁹⁹ See above note 97.
 

[p. 41]

Where a person is found not responsible by reason of automatism, the court may deal with that person in the same manner as if that person had been found not guilty by reason of mental disorder, provided that person's automatism is likely to occur again in a manner which poses a substantial danger to the lives or safety of others;  and such persons shall be subject to the same safeguards, procedures and reviews as persons who are found not guilty due to mental disorder.¹⁰⁰

    The Sub-Committee is concerned that Professor Ferguson's suggestion appears to be inconsistent with the common law defence as it is currently defined.  The defence of non-insane automatism calls for an acquittal where otherwise criminal behaviour is, through no fault or special weakness of the accused, truly outside his or her power to control.  Placing restrictions upon someone so described would seem to be inconsistent with generally accepted limits of criminal responsibility.

    In another approach, the Canadian Psychiatric Association took the view that the concept of automatism should be abolished.  The Association argued that the concept is outdated, since the distinction between organic and functional mental disorders is disappearing as illnesses once thought to be functional are found to be related to pathological cause.¹⁰¹  Because illnesses like sleepwalking or hypoglycaemia are 'physical illnesses which cause organic mental disorders and are likely to recur or be permanent,' they may require careful monitoring.¹⁰²  As a result, the Association made the following submission:

'The illnesses that are thought to cause automatism are mental disorders.  They should fall under the present legal definition of mental disorder and be dealt with under the new law governing mentally disordered offenders.  This law allows the flexibility of disposition of the accused as appropriate.'¹⁰³

Like Professor Ferguson's suggestion, this also has the attraction of allowing some level of intervention, as required, for those who may pose an ongoing threat to society.  The Sub-Committee was attracted to this approach.  However, while one member would endorse the CPA's recommendation, a majority of the Sub-Committee was concerned that the current mental disorder provisions of the Criminal Code were not broad enough to accomodate automatism and that amendments could cause unforeseen complications. 'Mental disorder' is currently defined as a 'disease of the mind'.  This definition specifically excludes non-insane automatism.  If non-insane automatism were to be included within the meaning of mental disorder, the current definition would have to be repealed or expanded to include it.  Repealing the current definition of 'mental disorder' would disconnect it from the common law cases setting out what is a disease of the mind and render it completely open-ended.  To include non-insane automatism within the definition of 'mental disorder' would amount to codifying non-insane automatism along the lines proposed by the CBA Task Force, but within section 16 of the Code, rather than as a separate defence.  In the end, a majority
----
¹⁰⁰ Issue 5A: 221-2.
¹⁰¹ Issue 6A:2.
¹⁰² Issue 6A:3
¹⁰³ Issue 6A:4
 

[p. 42]

of the Sub-Committee was more favourably disposed toward addressing the defence of automatism within the concept of voluntariness.  Still, it belives that the approach of the Canadian Psychiatric Association has much merit and is worthy of future consideration.¹⁰⁴

    The CBA Task Force advocated the second option, that of codifying the common law defence of automatism as expressed by the Supreme Court of Canada in R. v. Rabey,¹⁰⁵  Their draft provision would excuse otherwise prohibited, unconscious, involuntary behaviour caused primarily by external factors; a psychological blow would qualify as an external factor if it might be expected to cause the same result in the average person.  As a result, psychological factors would be subjected to an objective test but physical ones would not. Thus, this is one area where the Task Force thought the Law Reform Commission's Report 31 drew the defence of automatism too narrowly by subjecting both psychological and physical factors to an objective test in a way that could remove the defence for a 'thin-skulled accused.'¹⁰⁶  The Task Force would bar the defence where the behaviour state had been voluntarily induced by the accused's own fault.¹⁰⁷  The Criminal Trial Lawyers' Association of Alberta adopted the Task Force's recommendations.¹⁰⁸

    In proposing the third option, the Law Reform Commission characterized automatism as simply an absence of the conduct necessary to establish criminal liability due to a lack of volition on the part of the accused, much like compulsion.¹⁰⁹  The Commission suggested codifying automatism as a defence where the lack of control arises from factors 'which would similarly affect an ordinary person in the circumstances'; the defence would exclude those who negligently bring about their autonomic state, by making them liable for crimes that could be committed by negligence.¹¹⁰

    The Criminal Law Teachers took a similar approach to the Law Reform Commission.  They would prefer to see a general provision recognizing that a person will not be liable for involuntary conduct.  This would not only be simpler, but would allow for a more flexible defence of automatism in keeping with the Supreme Court's recent ruling in the Parks case.  Professor Stuart doubted the necessity of distinguishing between unconscious and conscious involuntary conduct and was also concerned that the codification suggested by the CBA Task Force was more restrictive than the common law most recently expressed by the Supreme Court of Canada in the Parks decision.¹¹¹
-----
¹⁰⁴ The Sub-Committee notes that the English Law Commission recommended that automatism be included in the definition of 'mental disorder' in its Draft Criminal Code Bill: Law Commission, A Criminal Code for England and Wales (1989), Vol. 1, (Law Com. No. 177), s. 34, at 58.
¹⁰⁵ See above note 96.
¹⁰⁶ Issue 5A:37
¹⁰⁷ Issue 5A: 28
¹⁰⁸ Issue 10A: 17.
¹⁰⁹ Report 31, at 28.
¹¹⁰ Report 31, at 29.
¹¹¹ Issue 9A:51.
 

[p. 43]
    In the interests of simplicity, the Sub-Committee prefers the third option, as advocated by the Law Reform Commission and the Criminal Law Teachers.  However, the Sub-Committee accepts the improvements on the Law Reform Commission's proposal suggested by the Criminal Law Teachers and the CBA Task Force.  Thus, it believes that a provision on involuntariness should not be governed by an objective test and should be flexible to take account of a variety of causes of involuntary conduct.  The Sub-Committee notes that this is consistent with the approach adopted in the New Zealand Crimes Bill¹¹² and the Australian Model Criminal Code.¹¹³

Recommendation Thirteen
The Sub-Committee recommends that a recodified General part of the Criminal Code recognize the defence of automatism by providing that no one should be liable for conduct that is involuntary, whether the conduct is conscious or unconscious.

-----
¹¹² See s. 19.
¹¹³ See s. 202.2." (pp. 39-43)

CANADA, Officials of the Department of Justice Canada and Members of the Law Reform Commission of Canada, Toward a New General Part for the Criminal Code of Canada: A Framework Document on the Proposed New General Part of the Criminal Code for the Consideration of the House of Commons Standing Committee on Justice and the Solicitor General, [Ottawa]: [Department of Justice Canada], [1990], 137 p., see "automatism" at pp. 53-54; available at my Digital Library http://www.lareau-law.ca/DigitalLibrary.html; also published in French/aussi publié en français: Fonctionnaires du Ministère de la Justice Canada et des membres de la Commission de réforme du droit du Canada, Pour une nouvelle codification de la Partie générale du Code criminel du Canada : document cadre sur la nouvelle partie générale proposée du Code criminel présenté pour examen au comité permanent de la justice et du solliciteur général, [Ottawa]: [Ministère de la Justice], [1990], 144 p., voir "Automatisme" aux pp. 54-56; disponible à ma bibliothèque digitale, à http://www.lareau-law.ca/DigitalLibrary.html;;

"AUTOMATISM

THE PRINCIPLE
No one can be blamed for acts or omissions that are involuntary, since these are outside his or her control, except to the extent that the person is to blame for letting himself or herself get into a condition where he or she is likely to behave involuntarily.

THE PRESENT LAW
The Criminal Code has no provisions on automatism, but according to the case law an accused who commits the elements of an offence in an 'automatic' state is not criminally responsible but has a defence of automatism.  The defence is made out if the accused acted while in a dissociative state caused by external factors.  The courts have recognized that such external factors may include the following: a physical blow, carbon monoxide poisoning, stroke, pneumonia, hypoglycaemia, sleepwalking or involuntary intoxication.

   An accused will not be absolved of criminal responsibility, however, unless the external factor was such that an ordinary person would have reacted in the same way.  In other words, the dissociative state must not arise from some subjective weakness of the accused himself.  Not must it arise from voluntary consumption of alcohol or drugs or from a disease of the mind.  In these cases, the accused can only rely on a defence of either intoxication or insanity respectively.

CANADIAN RECOMMENDATIONS
The Law Reform Commission recommended that a provision be placed in the General part to the effect that no one is liable for conduct which is beyond his or her control by reason of factors, other than loss of temper or mental disorder, which would similarly affect an ordinary person in the circumstances but that this defence does not apply to a crime that can be committed by negligence where the lack of control is due to the defendant's negligence.

    Such a provision would make the Code more comprehensive by placing in it a defence found at common law.  The defence as proposed, however, is potentially a very broad one and it is uncertain what it includes.  Because it relies on an objective standard, it departs from the principle that no one should be liable for conduct beyond his or her own control.

    One possible alternative formulation would be to restrict the defence to conduct arising from external factors.  One advantage of this would be to exclude from the defence cases of automatism due to the accused's own fault, e.g. voluntary intoxication.  It would, however, be a further departure from the principle that lack of control exonerates an individual from liability.

    The Working Group on the General Part recommended that the defence of automatism be codified.  The Canadian Association of Chiefs of Police believed that the L.R.C. provision on automatism is too broad and may as a result allow an unaccepptably broad extension of the defence of provocation causing the accused to act in an automatic state.  The defence, it is feared, could be applicable to all offences - a situation which is considerably broader than that which exists today whereby a successful defence of provocation will, at best, reduce murder to manslaughter.

OTHER JURISDICTIONS
Both the New Zealand Crimes Bill (ss. 19(2)) and the English Law Commission's Draft Code (ss. 33(1)) provide that a person does an act involuntarily and is therefore not criminally responsible for it if the act is the result of a reflex, spasm, or convulsion or is done while that person is asleep or unconscious.

    The American Law Institute's Model Penal Code  § 2.01(2) provides for automatism under its general rule governing conduct.  A person acting in an automatic state is clearly not acting voluntarily and therefore cannot be guilty of the offence which he or she is charged.

    The Australian Draft Bill (ss. 3H(2)(b), (c)) provides that an act is involuntary if it was a result of a spasm or convulsion or the act was done while the person was in a condition (whether of sleep, unconsciousness, impaired consciousness or otherwise) that deprived the person of control of the act.

ISSUES FOR CONSIDERATION
1. Should there be a provision in the General Part that no one is liable for conduct which is beyond his or her control by reason of factors other than loss of temper or mental disorder which would similarly affect an ordinary person in the circumstances?

2. Should this defence apply to a crime committed by negligence where the lack of control is due to the defendant's negligence?" (pp. 53-54)
 

 
    "6. The said Act [Criminal Code] is further amended by adding thereto, immediately after section 12 thereof, the following sections:

    12.1...
(2) [Voluntariness] No person commits an offence unless that person commits the act, or makes the omission, voluntarily."

......

    "7.  The said Act is further amended by adding thereto, immediately after section 16 thereof, the following section:

    16.1 (1) [Defence of automatism] No person is criminally responsible for an act committed or an omission made while in a state of automatism.

(2) [Definition of 'automatism'] In this section, 'automatism' means a state of unconsciousness or partial consciousness that renders a person incapable of consciously controlling their behaviour while in that state.

(3) [Burden of proof] The burden of proof of showing automatism is on the party that raises the issue, on a balance of probabilities."

......

    "14.  The said Act is further amended by adding thereto, immediately after Part XX.1 thereof, the following Part:

            PART XX.2
            AUTOMATISM

    672.96 [Definitions]  In this Part.

'automatism' ['automatism' « automatisme »] has the meaning assigned by section 16.1(2);

'verdict of not criminally responsible on acount of automatism' [verdict of not criminally responsible on account of automatism'  « verdict... »] means a verdict that the accused committed the act or made the omission that formed the basis of the offence with which the accused is charged but is not criminally responsible on account of automatism.
 

    672.97 (1) [Verdict of not criminally responsible on account of automatism]  Where the  jury, or the judge or provincial court judge where there is no jury, finds that the accused committed the act or made the omission that formed the basis of the offence charged, but was at the time in a state of automatism so as to be exempt from criminal responsibility by virtue of subsection 16.1(1), the jury or judge shall, subject to subsection (2), render a verdict of not criminally responsible on account of automatism.

    (2) [Verdict of not criminally responsible on account of mental disorder]  Where the  jury, or the judge or provincial court judge where there is no jury, finds that the accused committed the act or made the omission that formed the basis of the offence charged, but at the time

(a) was in a state of automatism that was caused by mental disorder, or

(b) was suffering from a mental disorder that rendered the accused incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong,

the jury or judge shall render the verdict referred to in section 672.34.
 

   672.98 (1) [Disposition hearing]  Where a verdict of not criminally responsible on account of automatism is rendered, the court shall make a disposition under subsection (2) if it is satisfied that it can readily do so and that a disposition should be made without delay.

    (2) [Disposition that may be made]  Where a court makes a disposition pursuant to this section, or a Review Board makes a disposition pursuant to section 672.47 in its application to this Part, the court or Review Board shall, taking into consideration the likelihood of recurrence of a state of automatism, the danger to the public if a state of automatism were to recur, the reintegration of the accused into society and the other needs of the accused, make one of the following dispositions that is the least onerous and least restrictive to the accused:

(a) where, in the opinion of the court or Review Board, the accused is not a significant threat to the safety of the public, by order, direct that the accused be discharged absolutely;

(b) by order, direct that the accused be discharged to such conditions as the court or Review Board considers appropriate; or

(c) by order, direct that the accused be detained in custody in a hospital, subject to such conditions as the court or Review Board considers appropriate.
 

    672.99 (1) [Application of Part XX.1] Part XX.1, except sections 672.34, 672.45, 672.54, 672.65 and 672.66, applies, with such modifications as the circumstances require, to an accused found not criminally responsible on account of automatism, and any reference in Part XX.1 to section 672.45 or 672.54 shall be read, for the purposes of this Part, as a reference to subsection 672.98(1) or (2), respectively.

    (2)  [Idem] For greater certainty, the reference in subsection (1) to Part XX.1 shall be read as including a reference to section 672.64 only as of when that section comes into force."

    -----------------
 

"6. La même loi [le Code criminel] est modifiée par insertion, après l'article 12, de ce qui suit:

    12.1  ....
(2) [Fait volontaire]  Nul ne commet une infraction si son fait n'est pas volontaire."

......

"7. La même loi est modifiée par insertion, après l'article 16, de ce qui suit:

    16.1 (1) [Automatisme] La responsibilité criminelle d'une personne n'est pas engagée du fait d'un acte ou d'une omission commis par automatisme.

(2) [Définition de 'automatisme'] Pour l'application du présent article, on entend par 'automatisme'  l'état d'inconscience ou de conscience partielle qui rend alors la personne incapable de consciemment contrôler ses faits et gestes.

(3) [Preuve] Il incombe à la partie qui invoque l'application du paragraphe (1) de prouver, selon la prépondérance des probabilités, que l'acte ou l'omission a été commis par automatisme."

......

    "14.  La même loi est modifiée par insertion, après la partie XX.1, de ce qui suit:

          PARTIE XX.2
          AUTOMATISME

     672.96 [Définitions] Les définitions qui suivent s'appliquent à la présente partie.

'automatisme'  [« automatisme » 'automatism']  S'entend au sens du paragraphe 16.1(2).

'verdict de non-responsabilité criminelle pour automatisme' [« verdict de non-responsabilité criminelle pour automatisme » 'verdict ...']  Verdict voulant que l'accusé ait commis l'acte ou l'omission qui a donné lieu à l'accusation mais que sa responsabilité criminelle soit dégagée pour automatisme.
 

    672.97 (1) [Verdict de non-responsabilité criminelle pour automatisme]  Le jury ou, en l'absence de jury, le juge ou le juge de la cour provinciale qui détermine que l'accusé a commis l'acte ou l'omission qui a donné lieu à l'accusation mais l'a commis par automatisme, le dégageant de sa responsabilité criminelle par application du paragraphe 16.1(1), est tenu, sous réserve du paragraphe (2), de rendre un verdict de non-responsabilité criminelle pour automatisme.

    (2) [Verdict de non-responsabilité criminelle pour automatisme]  Le jury ou, en l'absence de jury, le juge ou le juge de la cour provinciale qui détermine que l'accusé a commis l'acte ou l'omission qui a donné lieu à l'accusation mais l'a commis par automatisme par suite de troubles mentaux ou l'a commis alors qu'il était atteint de troubles mentaux qui le rendaient incapable de juger de la nature et de la qualité de l'acte ou de l'omission ou de savoir qu'ils étaient mauvais, est tenu de rendre, en application de l'article 672.34, un verdict de non-responsabilité criminelle pour cause de troubles mentaux.
 

    672.98 (1) [Audition]   Lorsqu'un verdict de non-responsabilité criminelle pour automatisme est rendu à l'égard d'un accusé, le tribunal doit tenir une audition afin de déterminer la décision à rendre au titre du paragraphe (2), s'il est convaincu qu'il est en mesure de la rendre sans difficulté et qu'elle doit l'être sans délai.

    (2) [Décisions]  Le tribunal ou, pour l'application de l'article 672.47, la commission d'examen rend la décision la moins sévère et la moins privative de liberté parmi celles qui suivent, compte tenu de l'éventualité de la récurrence de l'automatisme, de la nécessité de protéger la société et des besoins de l'accusé, notamment de la nécessité de sa réinsertion sociale :

a) une décision portant libération inconditionnelle de celui-ci si le tribunal ou la commission est d'avis qu'il ne présente pas un risque important pour la société;

b) une décision portant libération de celui-ci sous réserve des modalités que le tribunal ou la commission juge indiquées;

c) une décision portant détention de celui-ci dans un hôpital sous réserve des modalités que le tribunal ou la commission juge indiquées.
 

    672.99 (1) [Application de la partie XX.1]  Les dispositions de la partie XX.1, à l'exception des articles 672.34, 672.45, 672.54, 672.65 et 672.66, s'appliquent, avec les adaptations nécessaires, à l'accusé à l'égard duquel un verdict de non-responsabilité criminelle pour automatisme a été rendu.  Par ailleurs, la mention, dans cette partie, des articles 672.45 ou 672.54 vaut mention des paragraphes 672.98(1) ou (2).

    (2) [Idem]  Il est entendu que les dispositions visées de la partie XX.1 ne comprennent l'article 672.64 qu'à compter de son entrée en vigueur."
 

 
Meetings, Issues Paper and Report/Réunions, Document de réflexion, et Rapport:

• 13 December 2001 (E/F), from the Department of Justice Canada: Catherine Kane, Senior Counsel, Policy Centre for Victims: English / Français

"[Catherine Kane]  The current common law is that where a person is suffering from automatism caused by a mental disorder, they're treated the same way as somebody who's not criminally responsible on account of mental disorder. Where their automatism isn't caused by a mental disorder—they're sane, but they have had a blow on the head or they've taken some medication that has caused them to act in an erratic matter—if they can establish that this is their defence, with not just an assertion but with evidence to establish that this condition was the result of some external cause, they would be acquitted. They would be found not criminally responsible on account of mental disorder.

So it would be a complete defence, but it's a fairly high burden to satisfy, and it's fairly rare."
 

• December 2001: Issues Paper of the Standing Committee on Justice and Human Rights (see Appendix A of the Report English) / Document de réflexion, du Comité permanent de la Justice et des droits de la personne, décembre 2001 (voir l'Annexe A du  Rapport  Français)

"Although the Minister of Justice circulated draft amendments in 1993 that would have codified automatism, the defence continues to be governed by the common law. Should automatism be defined in the Criminal Code? At present, a finding of non-insane automatism requires a complete acquittal, even on the most serious of charges. Is this appropriate or should courts have the power to impose supervisory orders in some cases of non-insane automatism?" (see pp. 34-35 of the report)

------

"Bien que le ministre de la Justice ait fait circuler en 1993 des propositions de modifications qui auraient codifié l’automatisme, la défense continue d’être régie par la common law. À votre avis, devrait-on définir l’automatisme dans le Code criminel? À   l’heure actuelle, un verdict d’automatisme sans aliénation mentale entraîne un acquittement complet, même pour les accusations
les plus graves. Selon vous, cela est-il approprié, ou les tribunaux devaient-ils avoir le pouvoir d’imposer des ordonnances de surveillance dans certains cas d’automatisme sans aliénation mentale?" (voir la  p. 39 du rapport)

• 12 March 2002 (E/F): Dr. John Bradford, Clinical Director, Forensic Program and Head of the Division of Forensic Psychiatry, Ottawa University:  English  / Français

    "[Dr. John Bradford]  I just got back from the Canadian Academy of Psychiatry and the Law meeting, and one of the issues we debated was psychological blow automatism. Psychological blow automatism, if it's successful, brings a complete acquittal, as you probably know, and it's going to be raised in murder. In fact, I was testifying yesterday in a case where that was one of the issues.

    Essentially, the way it works is that a person suffers a significant psychological blow. It's usually precipitated by the victim, and often the victim is a woman and it's a man who's the perpetrator. For example, a woman may make a remark about the person's sexual prowess or something else, and it should be a significant sychological blow. In theory, that then causes a blow that is similar to a blow in the head, the person's ability to act in a voluntary way is suspended, and they then commit the act of murder, let's say, or attempted murder. If that is successful, meaning that it's not on the basis of a mental disorder, that person is acquitted completely. The problem is that recently, as you know, in the Supreme Court of Canada under Stone, they've narrowed the application of it. I think that's positive, generally. Otherwise, I think what happens is that in a lot of cases where a homicide occurs there's some provocation. There are provocation defences that can reduce murder to manslaughter.

    At a personal level, I question whether psychological blow automatism is a real entity in psychiatric terms, because it's a legal issue, not a medical one.  But if it is, I think it should be very carefully applied. The science of it, from a medical standpoint, is quite weak, it's hard to support from a medical scientific point of view, and I wonder why we need it at all, because we already have, as I say, lack of specific intent, diminished criminal responsibility, from murder to manslaughter. I wonder why we need this at all. If it leads to a complete acquittal, I have some problems with it.

    I'm giving you a conservative forensic psychiatric review.  Not everybody would agree with that. But I helped to draft the brief for the Canadian Psychiatric Association, which I think was before a justice committee.  We narrowed it to say, if it has to apply, then the person has to have brain damage. We added a whole lot of other medical requirements to limit it even more. So from a forensic psychiatry point of view, we're skeptical about it, concerned about it, and I guess my question is, do we really need it?"

• 14 March 2002 (E/F): Dr. Julio Arboleda-Florez, Professor and Head, Department of Psychiatry, Queen's University: English / Français

    "[Dr. Julio Arboleda-Florez]  The material sent to us asks about the question of automatism. I clearly say there is no psychological, psychiatric, or neurological basis for a defence of automatism.  Say no to automatism. There are automatisms; they all pertain to issues of mental conditions--personality disorders, etc.--affecting the way a person functions, and in  particular moment there is a disintegration of behaviour. But that is mental illness, and those issues therefore fall under insane automatism."

• 20 March 2002 (E/F): Dr. Louis Morissette, psychiatrist, Institut Philippe Pinel de Montréal, Association des médecins psychiatres du Quebec: English /  Français

"[Dr. Louis Morissette]  Automatism refers to a truly remarkable occurrence. We see reports of it in the newspapers. For example, a person will get behind the wheel, drive for 40 kilometres and then stab his in-laws. Occasionally, the accused in such cases will invoke the defence of automatism. However, this type of defence rarely proves successful in court.

......

When I saw that one of the committee's questions concerned automatism, I was surprised because the question doesn't often arise. Automatism is rarely invoked as a defence. It's a rather extraordinary defence, one that raises many questions in
people's minds, but few people invoke it and in those cases, it's associated with a mental disorder such as epilepsy, a diabetic coma or some other illness."

• 21 March 2002 (E/F): Steve Sullivan, President and Executive Director, Canadian Resource for Victims of Crime; and Dr. Chris Webster, St. Joseph's Heathcare: English / Français

    "[Steve Sullivan]  The other issue that was raised was the defence of automatism.  It's our position that, if retained, it should be a defence that is defined by Parliament.

    I don't know if you've asked this individual to come before your committee, but there was an article in the Peterborough Examiner in March about Dr. Stanley Semrau. He is a forensic psychiatrist who has worked with a number of mentally disordered offenders.  He has written a book. I don't know much about it; I'm just suggesting that the committee might want to hear from this individual because he seems to have a lot of experience. He has raised serious concerns about the current
mental disorder provisions. He in fact says they should be dispensed with. He has raised concerns about automatism as a defence and says that's largely rejected by the psychiatric community.  I think his point of view is something this committee may want to become familiar with.

......

    I think it's just a broader philosophical view that Parliament should be defining those things in the Criminal Code; that, from my point of view, a part of democracy is that Parliament be the last voice on those things. I don't raise the issue because I know of cases or have had experience with victims where there's been a problem with automatism; it's more, as I said, a philosophical view.

    I would also go back to what Dr. Semrau has addressed in his book--and again, I haven't seen it, but the committee may want to hear from him.  According to him, the psychiatric community has rejected the automatism defence. This is a reference from a newspaper article; clearly it's not conclusive about what he said, but the committee may want to get more from him.

    Again, I don't raise the issue because there are necessarily problems with it; it's more a philosophical sense that these are the issues Parliament should be deciding on. The last word should not necessarily lie with the common law and judges making law."

-------------------

    "[Mr. Paul Harold Macklin -- Member of the Committee]  In your notes you appear to have thrown out a challenge to us and I would like to throw it back to you. That is: “We think automatism should be defined in the Criminal Code and we are of the view that courts should have power to impose supervisory orders in some cases of non-insane automatism”.

    First, could you tell us what you believe the definition ought to be, and second, what cases do you believe and what types of orders, should be applicable to the second part of that statement?

    [Dr. Chris Webster]  It's a really tough question, and if my colleague Steve Hucker were here--he testifies in all kinds of automatism-type trials and has been doing this for years--I would say he would give you a much firmer answer to that question. I think what I would do, if you require a proper answer to that.... I don't think I can really give it to you--
......
I'm merely trying to say that I think if you put a couple of well-known forensic psychiatrists or psychologists, one of each maybe, together with a couple of well-known lawyers in this area--and there are a number, as you well know, who have testified in things like the Parks case, for example--who have really come to grips with this issue, I think it would be possible to come up with a definition of non-insane automatism that might satisfy a committee such as this. But I don't think I should take a fly at it today."
......

    "[Mr. Paul Harold Macklin -- member of the Committee] Pursuing that a little bit with respect to automatism, you say you do risk predictions. Are you able to predict with any degree of certainty the recurrence of automatism incidents?

    [Dr. Chris Webster]  I couldn't answer the question. In the kinds of statistical databases I have helped set up with my colleagues and so on, such cases would be so rare that you wouldn't actually be able to do anything with it statistically.

    For example, my main database contains the names of 600 people who were assessed in 1978-79 at a place called the Metropolitan Toronto Forensic Service.  We've followed these people since. Out of that group of 600, I'd be surprised if there were two or three cases of non-insane automatism.

    So although I argued earlier for the importance of general statistics, with respect to these odd individual cases I don't think you're going to be able to do much with it statistically. We have to rely on the law then, you see."
 

• 9 April 2002 (E/F): From the B.C. Forensic Psychiatric Services Commission: Dr. Mark Riley, Psychiatrist.  As Individual: Edwin A.Tollefson, Q.C.  From the Community Legal Assistance Society: Diane Nielsen, Lawyer; Corey Bow, Lawyer, Mental Health Law Program: English / Français

    "[Dr. Mark Riley] Our view is that although the legal definition of mental disorder is obviously different from the clinical definition, that doesn't actually pose any major problems to us in terms of how it's interpreted through section 16.

    The only area in which we feel there is a major conflict between the legal and clinical definition of mental disorder is when we look at the issue of automatism. From a clinical point of view, I think it's important to emphasize that there is no diagnostic equivalent to this legal concept and its scientific validity is questionable. We also take the view, both as a service and I think I can speak on behalf of the psychiatric profession, that there's no logical clinical basis for dividing the concept of automatism into insane and non-insane. If there are sound legal reasons for retaining the defence of automatism, we would encourage that there just be a single defence of automatism, rather than it being divided into these two subcategories.
......
     It's almost impossible to get a consensus on the issue. It's just so controversial. I think it's largely because there's so little science that can be applied to the issue, so a lot of what you hear is just based on personal opinion. If I were to continue to talk for five or ten minutes, I think I'd have to qualify anything I have to say on that basis. There are a lot of strong feelings aroused about the whole issue, not just in the man on the street but within the profession. A lot of psychiatrists have great difficulty even accepting that such a condition exists, whereas obviously there are psychiatrists who feel very strongly that it is a recognized entity and should remain as a defence to people in court."

-----------

    "[Diane Nielsen] I think what we can agree on is that it's artificial to have insane and non-insane automatism. I think we can agree on that. To us, automatism is automatism. It's an involuntary act, and it's generally a singular involuntary act. So we agree with the hospital on the point that it's artificial to have the two separate definitions."

----------

    "[Edwin A. Tollefson]  Let me just add something to that. Back in 1993, I think it was, there was a bill prepared on the general part of the Criminal Code. It included provisions in relation to automatism. I don't know if you're acquainted with this bill or not. At that time, a committee of the Department of Justice worked on arriving at a, shall we say, sensible interpretation of the case law, and thinking of how you can protect society against these people who say they were acting as an automaton because of sleepwalking or a blow on the head, or whatever it might be.

    These people are not obviously suffering from one of the regular mental disorders. But you wouldn't want this to recur, and that's one of the things you have to be concerned about. The proposal made by the department at that time was that there be a similar sort of follow-up to them as in relation to people who were found to have acted in an automatistic state due to mental disorder. I would recommend to the committee that you perhaps look at that legislation once again."
 

• 10 April 2002 (E /F): Panel I: From the Canadian Psychiatric Association: Dr.Dominique Bourget, President, Canadian Academy on Psychiatry and the Law;  Panel II: From the Mood Disorders Society of Canada: Phil Upshall, President: English / Français
 

    "[Dr. Dominique Bourget]  In relation to the automatism defence, from a medical perspective, all cases of automatism referred to as non-insane automatism necessarily stem from a condition that affects the functioning of the brain, be it epilepsy, hypoglycemia, somnambulism, head trauma, and causes a transient altered state of mind. These could all be dealt with within the meaning of insane automatism or a mental disorder. It is recommended that all claims of automatism be classified as mental disorders and dealt with accordingly within the meaning of section 16."
----------

    "[Phil Upshall]  You asked about automatism, and our short response is, there is no purpose in trying to codify or define a defence not recognized by the mental health services community or the DSM-IV."
 

• 11 April 2002 (E/F): As an individual,  Dr. Derek Eaves, Vice-President, Medicine and Research, Riverview Hospital, Visiting Scholar, Simon Fraser University:  English / Français

"[Dr. Derek Eaves]  Lastly, and number ten, non-insane automatism is not a psychiatric issue and ought not to be defined in the Criminal Code, unless it's defined in such a way as to exclude it as a possibility."

• 16 April 2002 (E/F): Panel I: From the "Barreau du Québec": Me Julie Delaney, Lawyer. From the British Columbia Civil Liberties Association: Lindsay Lyster, Policy Director: English / Français

    "[Me Julie Delaney, Lawyer]  First of all, when the criminal law working committee of the Barreau du Québec considered whether section 16 of the Criminal Code caused any real problem, the answer was no. In the absence of any problem flowing from the test to determine whether an accused is fit to stand trial, we see no need to suggest any change to the test. The consultation document mentions the possibility of defining automatism in the Criminal Code. Once again, the Barreau is in favour of the status quo. Why change legislation that in practice causes no real problem?  The Barreau also sees no need to give the courts the power to issue supervision orders in cases of non-insane automatism."
............

    "[Lindsay Lyster] The third area I want to speak about briefly--and it was referred to in your issues paper--is the automatism defence. This is an extraordinarily rare defence. It's rarely brought into the criminal courts, and it's even more rarely successful. But there are cases, very rare cases, in which in our view and in the view of the Supreme Court of Canada it is the just and appropriate verdict to hold that a person is not actually responsible for their act because they didn't voluntarily engage in the act they engaged in, and as a result they ought to be acquitted.

    We are, however, concerned that the automatism defence has been unreasonably narrowed by the Supreme Court of Canada in the case of the Queen v. Stone, which is the current ruling case on the automatism defence. It was a five-four split in the Supreme Court of Canada. In our view, the majority there unnecessarily and unreasonably narrowed the automatism defence, such that if this committee is going to look at the automatism defence, we say the minority view in Stone, as opposed
to the majority, ought to be codified.

    Specifically, we say that it's essential, again, due to the importance of maintaining our basic criminal law principles, to ensure that the legal burden will remain on the crown throughout to prove all elements of an offence, including voluntariness.  So the accused will have the obligation of surmounting the evidentiary burden of putting the voluntariness of his or her act into question. Having done that, the crown continues to bear the burden of proving the act was a voluntary one.

    Secondly, we say it's vital that there be no presumption that where a person commits an automatistic act, they were mentally disordered. That's for the trier of fact, the jury, in those cases to determine.

    And thirdly, we say that in the proper case it ought to be open to the judge to leave with the trier of fact both mentally disordered and non-mentally-disordered automatism. It ought not to be the case that only one or the other of those possibilities would be left with the jury.

    Sometimes it's argued that the automatism defence ought to be narrowed, as the majority did in the case of Stone, because of a fear of floodgates being opened, that hundreds of people would be successfully feigning automatism, thus getting off scot-free after committing violent acts.

    We say that's an unjustifiable fear. As Mr. Justice Binney, for the minority in Stone, properly said:

    “We can trust the common sense of Canadian juries. Anyone who doubts we can trust the common sense of Canadian juries hasn't spent enough time by office coffee machines and in buses talking to bus drivers”

    Individual Canadians are going to be extremely skeptical where automatism defences are raised on behalf of accused persons. They will not lightly hold that persons should be acquitted on the basis of automatism. We can trust juries to deal appropriately with this defence. It must be retained. And we say if you're looking at that defence in terms of the possibility of codifying it, you ought to do so in line with the dissent rather than the majority in Stone."
 

• 17 April 2002 (E/F):  From the Quebec Defence Attorneys Association: Me Lucie Joncas, Lawyer: English / Français

    "[Me Lucie Joncas -- Translation]  Regarding the need to codify the defence of automatism, the Association sees no need to do so at this stage and concurs with the views expressed in the brief submitted to the committee by the Institut Philippe Pinel. A very clear definition has already been established in the Supreme Court ruling in Stone.

    Furthermore, the Association maintains that there is no cause for the courts to make an order in cases where the defence is non-insane automatism. The clinical comments of Dr. Morissette in this regard are especially relevant to the matter."
 

• 18 April 2002 (E/F): From the East Coast Forensic Psychiatric Hospital, Nova Scotia: Dr. Emmanuel Aquino. As Individual: Dr. Stanley Semrau. From the Canadian Bar Association: Heather E. Perkins-McVey, Chair, National Criminal Justice Section: English /  Français

    "[Dr. Emmanuel Aquino]  Next is the issue of automatism, sane and insane. The most widely quoted case in Canada was the case of R. v. Parks. The circumstances were bizarre. It was reported he got up in the middle of the night, got dressed, got into his car, drove 23 kilometres to his wife's parents', entered the dwelling, found a kitchen knife, used it to kill his mother-in-law, and nearly killed his father-in-law. Then he drove to the police station and turned himself in. He was reported to be under considerable stress at that time but reported to be on good terms with his parents-in-law. He entered the defence of sleep-walking, which is sane automatism. He was acquitted by a jury on a charge of murder and by the judge on a charge of attempted murder.

    It has been recognized that nobody seems to know what “automatism” really means. When Rogers and his colleagues conducted a survey of forensic experts, less than one-third of mental health experts shared an understanding of what was necessary to constitute automatism.

    Professor Ralph Slovenko, a lawyer well known for his expertise in law on mental disorders, states that as a rule the claim of automatism is met with skepticism.  Involuntary behaviour, often referred to as automatism, is not in law considered an act. Thus the contraction of a person's muscles purely as a reaction to some  outside force, or a convulsive movement of an epileptic, is not an act, nor is movement of the body during sleep. It is idiomatic, in other language, to call involuntary bodily movement “an act” or “action”. As Shakespeare described the Queen's somnambulistic behaviour in Macbeth, it's an accustomed action with her seeming to be washing her hands, but the law does not consider this type of behaviour an act within the meaning of criminal or tort law.

    The defence of automatism is used more frequently in England, Australia, and Canada than in the United States.  Dr. Tollefson and Dr. Starkman reported that both  the psychiatric and legal communities have problems with how to deal with automatism in the context of criminal law.  Medical opinions about automatism are likely to vary considerably because of a lack of expertise and substantive relation to classification.

    I wish to endorse the Canadian Psychiatric Association's brief to the House of Commons Standing Committee on Justice and the Solicitor General, dated  November 1992, which stated that the concept of automatism had no place in law and recommended that it be abolished. The nature of the psychiatric evidence given on an alleged case of automatism would depend on the particular school of psychiatric thought to which the expert witness belonged."

............

    "[Stanley Semrau]  Many of the principles in the law as they relate to mentally disordered offenders are very sound, but the overall structure of how psychiatry and the law relate to each other is very problematic. We often try to fit psychiatry's round peg into the law's square hole, and in part do so on the basis of psychiatric concepts that are now obsolete, one of the most prominent examples being the automatism defence Dr. Aquino has already referred to.
.......
    In order to produce a just verdict, one needs reasonably accurate information regarding the mental state of an accused. Unfortunately, that is often unavailable because the accused has a poor memory of what occurred themselves. That memory is often subsequently distorted for a number of reasons to do with memory processes and psychological repression. Sometimes there's intentional deceit on the part of the accused, and psychiatric assessments are often delayed by weeks or months, or not available at all in the case of prosecution-retained psychiatrists or psychologists.

    The bottom line on this is that experts, including myself, often engage in something not much better than speculative or educated guessing regarding the mental state of an accused at the time of an act. Nevertheless we are obliged to do our best for the courts. But given extremely soft information, no wonder we often wind up disagreeing about these things in court. Because we're working with such soft and subjective information, it's no wonder we would disagree. Yet out of that soft
information and somewhat speculative opinions we have to produce yes or no verdicts in court, that this person was or wasn't criminally responsible, that they were or were not subject to a non-insane automatism.
.......

    With respect to the non-insane automatism defence at page 8, I completely echo the comments of Dr. Aquino. This defence has no proper basis in psychiatry whatsoever. I believe the copies of the 1992 presentation of the Canadian Psychiatric Association to this committee are available. I think those comments are just as valid today, if not more so.

    Not only does that defence lack any kind of scientific merit, but it is so confusing in the law and so conceptually mired that I have heard frank comments, even from judges on the bench in the absence of the jury, to the effect that they did not understand the defence. Even if it were a valid concept, it is incapable of being understood well enough by juries to produce just decisions.

    It is, however, very popular as a defence because it results in a total acquittal. I have seen many cases in which defence lawyers would frankly admit in the hallway that they were using the defence as their only hope because—and we'll get to this—they have no other way of dealing with the case by way of any other kind of plea bargaining, particularly in the case of homicides.

    The only part of it that could arguably be preserved is in a case where there was very clear evidence that the offender, the accused, had a profound disruption of brain function from some event, such as a seizure, where there is completely clear-cut medical evidence that their brain was simply not operative. With those arguable rare exceptions, it should be completely eliminated."

-------------

    "[Heather E. Perkins-McVey]  First of all, the issues of provocation, self-defence, and even automatism, are a separate area, in my view, and should be dealt with separately. That is an area that  the Canadian Bar Association supports the justice department taking a good look at in terms of re-evaluating those provisions.  But that's not what we're here to deal
with."
 

• 23 April 2002 (E /F): From the Canadian Police Association: David Griffin, Executive Officer: English / Français; see also their written brief

    "[Mr. David Griffin] With respect to automatism, we submit that Parliament should define the scope of this defence within the Criminal Code, and provide the courts the authority to impose supervisory orders in cases of non-insane automatism.";

• 30 April 2002 (E /F): Dr. Syed Akhtar:  English / Français

"[Dr. Syed Akhtar] Automatism: this defence, though rarely used, is difficult to grasp for lawyers and psychiatrists as well as the general public. Recent cases in Canada have provoked world-wide interest but have shed little light on the necessary conditions that should be satisfied before it can be successfully invoked in psychological cases. There is a great need for study of this phenomenon, in a systematic and a comprehensive manner, by both the legal and the psychiatric professions. I am of the opinion it should be codified, but before it can be codified it should be studied exhaustively by a commission of inquiry.

    I recommend that the Government of Canada establish a commission to look into this time-honoured defence of automatism and clarify its conceptual and legal boundaries. I'm thinking of the McRuer commission, which was established in the 1950s to study the insanity defence, as it was then called. Their deliberations, I think, were very helpful to the psychiatric and legal professions."

• June 2002: Report English / Rapport  Français

"Automatism ...
    The Committee found a decided lack of consensus in response to questions about automatism raised in the Issues Paper that was circulated prior to the review process.  Among the minority of participants who argued that automatism should be defined in the Criminal Code, there was no agreement as to the desired outcome. For example, the Canadian Resource Centre for Victims of Crime wanted automatism defined so as to enable courts to impose supervisory orders. The Mental Health Law Program of the B.C. Community Legal Assistance Society, on the other hand, would define automatism to retain the possibility of a complete acquittal. In the end, a majority of participants either rejected codification outright or, like the Canadian Bar Association, expressed reservations based on the complexity of the legal and psychiatric questions that should be resolved beforehand.

     Although the Committee has no data on how often the defence of automatism is raised, it does appear to be given a relatively narrow application by the courts. Given that the Committee heard little support for codification and saw no agreement among participants as to the kinds of mental states that should be included in any definition, or the consequences that should flow from a finding of automatism, we are not prepared to recommend codification at this time.

    RECOMMENDATION 2
     The Committee recommends that the definition and application of the law relating to “automatism,” both sane and insane, be left to the courts. (see pp. 6-7 of the report)

-------------------------

"Défense d'automatisme  [...]
    Le Comité a constaté un manque indéniable de consensus dans les réponses aux questions relatives à l’automatisme posées dans le document de réflexion qu’il avait fait circuler avant d’entamer son étude. La minorité de participants qui soutenaient qu’il fallait définir l’automatisme dans le Code criminel ne s’entendaient pas sur le résultat à obtenir. Par exemple, le Centre canadien de ressources pour les victimes de crimes voulait que la définition permette aux tribunaux de rendre des ordonnances de surveillance, tandis que le Mental Health Law Program de la B.C. Community Legal Assistance Society aurait défini l’automatisme de manière à préserver la possibilité d’accorder un acquittement absolu. Finalement, les participants ont majoritairement rejeté la codification pure et simple de la défense d’automatisme ou, comme l’Association du Barreau canadien, ont formulé des réserves en raison de la complexité des questions juridiques et psychiatriques qu’elle impliquait et qu’il fallait d’abord tirer au clair.

    Le Comité ne possède pas de données sur la fréquence avec laquelle la défense d’automatisme est invoquée, mais il appert que les tribunaux en font une application relativement restrictive. Comme le Comité a senti peu d’appui à l’idée de la codifier et que les participants ne s’entendaient pas sur les types d’états mentaux que la définition de l’automatisme devrait englober ni sur ce qui devrait découler du verdict d’automatisme, il n’est pas disposé à recommander de codifier la défense d’automatisme maintenant.

    RECOMMANDATION 2
    Le Comité recommande de laisser les tribunaux baliser et appliquer le droit relatif à l’« automatisme », qu’il soit ou non causé par l’aliénation mentale."   (voir les pp. 7-8 du rapport)

 
"Automatism

    All members agree that clause 3(1)(a)(iii) is unsatisfactory: as drafted, it is over-inclusive.  It does not appear to exclude from its ambit intoxication, which is dealt with elsewhere in Report 30 (see clause 3(3)); and more generally, the clause is not restricted to external causes.  Moreover, the objective standard of the 'ordinary person' is incompatible with a principle of negating liability for conduct which is actually 'beyond the control' of a person.

    While the clause goes too far in the sense that it is over-inclusive, in another sense it does not go far enough, in that it does not address directly the issue of automatism, an issue which presents significant policy choices.  Among these are the issue of people who become automata through their own fault, and people who, though automata through no fault of their own, are nonetheless dangerous and in need of treatment.  In the former case, for example, the intent involved in entering the automatic state could meet the mens rea requirements; in the latter case, the legislation could provide stop-gap measures to hold and treat the accused until a provincial authority can invoke civil commitment procedures to the same ends.

...Codification

    ...The members are divided on the issue of whether automatism should be codified;  there is slightly more support for codification than for leaving automatism to the development of the common law.

    Those favouring codification would include a provision to remove the defence from persons who become automata through their own fault.  This is a broader principle than covered by clause 3(1)(b), which limits the application to offences which may be committed by negligence and only excludes automatism resulting from negligence, as opposed to other forms of fault.

...Recommendations

1.  Clause 3(1) should not be codified in its present form (unanimous).
...
3.  The defence of automatism should be codified (3 for, 2 against).
4.  There should be a legislated provision to catch persons who become automata through their own fault (2 for, 2 against, 1 abstention)." (pp. 5-7)
 

• 10 April 2002 (E /F): Panel I: From the Canadian Psychiatric Association: Dr.Dominique Bourget, President, Canadian Academy on Psychiatry and the Law;

___________"Review of the Mental Disorder Provisions of the Criminal Code of Canada -- Brief Presented to the Standing Committee on Justice and Human Rights", brief prepared by Dominique Bourget, April 2002, 10 p.; document obtained by François Lareau, pursuant to a request under the Access to Information Act to the Department of Justice Canada, their file number: A-2002-0084/mfa, their reply dated 29 July 2002, documents 000390-000399; also available in French / aussi disponible en français;

"Automatism Defence
The defence of automatism has raised speculative debates and controversies over the years.  The concepts of 'mens rea' and 'actus reus', mean very little in clinical terms.

From a medical perspective, all cases of automatism referred as non-insane automatism necessarily stem from a condition which affects the functioning of the brain (head trauma, epilepsy, hypoglycemia, somnambulism, ...) and causes a transient, altered state of mind or dissociative state.  These could all be dealt with within the meaning of insane automatism or a mental disorder.  It is recommended that all claims of automatism be classified as mental disorders and dealt with accordingly within the meaning of Section 16.

In any event, it would not seem appropriate or justifiable on clinical grounds to require a non-insane (non-mentally ill) person to be the subject of a supervisory order from the perspective of psychiatry.

    Recommendation
      That all cases of automatism be dealt with within the meaning of Section 16." (pp. 5-7)

CANADIAN ASSOCIATION OF POLICE CHIEFS, An Evaluation of Volume I of the Report 30 Published by the Law Reform Commission Canada and titled "Recodifying Criminal Law", [Ottawa?]: The Canadian Association of Police Chiefs, 1987, 112 p., see "Section 15: Lack of Control" at pp. 24-25;
 

___________"Submission and Brief by the Canadian Association of Chiefs of Police for the House of Commons Standing Committee on Justice and the Solicitor General concerning The Framework Document on the Proposed New General Part of the Criminal Code",  May 1991, published in Canada, House of Commons, Sub-Committee on the Recodification of the General Part of the Criminal Code of the Standing Committee on Justice and the Solicitor General, Minutes of Proceedings and Evidence of the Sub-Committee on the Recodification of the General Part of the Criminal Code of the Standing Committee on Justice and the Solicitor General, [Ottawa]: Queen's Printer for Canada, issue number 10, of 8 December 1992, pp. 10A: 1 to 10A: 12, and see "Defence of Lack of Control" at pp. 10A: 7; also published in French /aussi publié en français, "Présentation et mémoire de l'Association canadienne des chefs de police au Comité permanent de la Chambre des Communes de la Justice et du Solliciteur général au sujet du document cadre sur la nouvelle Partie générale du Code criminel", dans CANADA, Sous-comité sur la Recodification de la Partie générale du Code criminel du Comité permanent de la justice et du Solliciteur général, Procès-verbaux et témoignages du Sous-comité sur la Recodification de la Partie générale du Code criminel du Comité permanent de la justice et du Solliciteur général,  [Ottawa]: I'Imprimeur de la Reine pour le Canada, 1991, fasicule numéro 10, du 8 décembre 1992 aux pp. 10A : 24 à 10A :38, voir "Défense fondée sur l'absence de contrôle" aux pp. 10A : 31 - 10A : 32;
 

CANADIAN BAR ASSOCIATION,  CRIMINAL RECODIFICATION TASK FORCE, Principles of Criminal Liability: Proposals for a New General Part of the Criminal Code - Report of the Criminal Recodification Task Force, Ottawa: Canadian Bar Association, [1992],  x, 190 p., ISBN: 0920742335; Research note # 1: This book is also published in CANADA, House of Commons, Minutes of Proceedings and Evidence of the Sub-Committee on the Recodification of the General Part of the Criminal Code of the Standing Committee on Justice and the Solicitor General, Issue 5 of November 2 and 18, 1992 at pp. 5A:1-5A:194; also published in French / aussi publié en français: ASSOCIATION  DU BARREAU CANADIEN, GROUPE DE TRAVAIL SUR LA NOUVELLE CODIFICATION DU DROIT PÉNAL, Principes de responsabilité pénale: proposition de nouvelles dispositions générales du Code criminel du Canada: Rapport du Groupe de travail sur la nouvelle codification du droit pénal, Ottawa : Association du Barreau canadien, [1992], xiii, 206 p., ISBN: 0920742351; note: aussi publié dans CANADA, Chambre des Communes, Procès-verbaux et témoignages du Sous-comité sur la Recodification de la Partie générale du Code criminel du Comité permanent de la justice et du Solliciteur général, fasicule 5 des 2 et 18 novembre 1992 aux pp. 5A:224-5A:434;
 

"Conscious involuntary conduct

6. (1) No one is liable for prohibited conduct which, although conscious, is involuntary.

    (2) Prohibited conduct is involuntary if it was not within one's ability physically to control.  Without limiting the generality of the foregoing, this includes:

(a) a spasm, twitch or reflex action,
(b) an act or movement physically caused by an external force, and
(c) an omission or failure to act as legally required due to physical impossibility.

    (3) This section does not apply to conscious involuntary conduct due to provocation, rage, loss of temper, mental disorder, voluntary intoxication or automatism.

    (4) If the involuntary prohibited conduct occurred because of a person's prior, voluntary blameworthy conduct, then that person may be held liable for that prior blameworthy conduct." (pp. 18-19)
......
Subscrion (3) would not excuse from liability, at least on the basis of voluntariness, an accused who committed an offence while provoked, in a rage, through loss of temper or because of mental disorder, voluntary intoxication or automatism.  To some extent the law requires us to control our emotions, or in some cases expose ourselves to criminal liability if we allow these emotions to control us.  While such factors would not negate voluntariness, they may give rise to other defences or, at the very least, be relevant considerations in sentencing." (pp. 27-28)

------------------------

"Automatism

7.  (1) No one shall be convicted of an offence where the prohibited conduct occurred while that person was in a state of automatism.

    (2) For the purposes of this section, automatism means unconscious, involuntary behaviour whereby a person, though capable of action, is not conscious of what he or she is doing, and includes unconscious, involuntary behaviour of a transient nature caused by external factors such as:

(a) a physical blow,
(b) a psychological blow from an extraordinary external event which might reasonably be expected to cause a dissociative state in an average, normal person,
(c) inhalation of toxic fumes, accidental poisoning or involuntary intoxication,
(d) sleepwalking,
(e) a stroke,
(f) hypoglycaemia,
(g) a flu or virus, and
(h) other similar factors.

    (3) Subsection (1) does not apply to automatism which is caused by:

(a) mental disorder,
(b) voluntary intoxication, or
(c) fault as defined in subsection (5).

    (4) For the purposes of this section, automatism is caused by mental disorder when the unconscious, involuntary behaviour arises primarily from an internal, subjective condition or weakness in the accused's own psychological, emotional or organic make-up, including dissociative states caused by the ordinary stresses and disappointments of life.

    (5) Notwithstanding subsection (1), automatism is not a defence:

(a) to an intentional offence if a person voluntarily induces automatism with the intention of causing the prohibited conduct of that offence,

(b) to a knowledge offence if a person voluntarily induces automatism knowing that it is virtually certain that he or she will commit the prohibited conduct of that offence while in that state of automatism, or

(c) to a reckless offence if a person voluntarily induces automatism notwithstanding the fact that the person is aware of a risk that he or she will commit the prohibited conduct of that offence while in that state of automatism, and it is highly unreasonable to take that risk." (pp. 19-20)

......

"[p. 28]

Automatism

This draft codifies the present law as stated in Rabey v. The Queen,²⁹ in several respects.  First, it adopts the Supreme Court's definition of automatism.  Second, it distinguishes between insanity and automatism. Third, it excludes from automatism unconscious behaviour which is induced by insanity or voluntary intoxication.

This draft is new to the extent that it clarifies the situations in which automatism induced by the accused's own fault is a bar to its use as a defence.

Subsection (2) defines automatism as requiring that the prohibited conduct be both unconscious and involuntary.  This serves to emphasize that lack of volition is the rationale for the defence, and eliminates the possibility of relying on the defence of automatism in cases where consciousness was impaired but the conduct was voluntary.

The draft lists seven examples of unconscious involuntary conduct from an external cause which meet the test.  Subsection (2)(h) ('other similar factors'), leaves room for the courts to add to this list on a case by case basis.

'Psychological blow' automatism in subsection (2)(b) follows Rabey in adopting an objective standard.  The Task Force
----
²⁹  (1980) 54 CCC(2d) 1 (SCC).
 

[p. 29]

favours this approach as being consistent with automatism applying only to externally-caused behaviour.  If a psychological blow would not cause an average, normal person in circumstances similar to the accused's to go into a state of dissociation, then that fact suggests that there is some internal, subjective weakness in this particular accused's make-up.

Having said that, the Task Force considers that the Law Reform Commission has made the defence too restrictive, in making all factors, both physical and psychological, subject to an objective test.³⁰  Its proposal would have the effect of ruling out automatism for a thin-skulled accused, a diabetic accused or an accused with an unexpected metabolic reaction.

Subsection (3) codifies the present law to the effect that:

• when unconscious, involuntary behaviour is caused by insanity, the defence of insanity applies and the defence of automatism does not;³¹ and

• when unconscious, involuntary behaviour is caused by voluntary intoxication, the defence of intoxication applies and the defence of automatism does not.³²

Subsection (4), in distinguishing between automatism caused by insanity and automatism caused otherwise, adopts the test laid down by Mr. Justice Martin in R. v. Rabey,³³ and subsequently approved by a majority of the Supreme Court of Canada in that same case.³⁴
----
³⁰ See Working Paper 29 -- The General Part: Liability and Defences (Ottawa: Supply and Services, 1982), s. 7: 'Every one is excused from criminal liability for unconscious conduct due to temporary and unforeseeable disturbance of the mind resulting from external factors sufficient to affect an ordinary person similarly.'

³¹ See Revelle v. The Queen (1981) 21 CR (3d) 161 at 166 (SCC).

³² See Revelle, ibid., and R. v. Hartridge (1966) 48 CR 389 (Sask CA).

³³ (1977) 37 CCC (2d) 461 at 477-478 and 482-483 (Ont CA).

³⁴ Supra, note 29.
 

[p. 30]

Subsection (5) excludes the defence of automatism in cases where the state automatism arose through the accused's own fault.  As Mr. Justice Martin said in Rabey:

[A]utomatism not resulting from disease of the mind leads to an absolute acquittal, unless induced by voluntary intoxication due to the consumption of alcohol or drugs or unless foreseeability or foresight with respect to its occurence supplies the necessary element of fault, or mens rea, where negligence or recklessness constitutes a basis for liability.³⁵

This draft deals with automatism induced by fault on the basis of the general principles governing mens rea or fault.  An accused who is in a state of automatism is not liable for a particular crime unless the requisite fault element for that crime exsits.  Conversely, an accused is liable for a crime if, just prior to inducing the state of automatism, he or she had the requisite fault required for that crime.

Thus, A is guilty of assaulting B if A induced a state of automatism with the intention of assaulting B while in that state.  The fact that the actual blow occured while A was in an altered state of consciousness should not relieve A from liability for intentionally setting this chain of action in course.

However, if A was reckless or negligent in becoming automatic and committing an assault while in that state, that would not be a sufficient mens rea or fault to convict A of assault, which requires proof of the intentional application of force to another. A could, however, be liable for an offence such as criminal negligence causing bodily harm, if it is proved that A was aware of a risk that he or she would commit the prohibited conduct of that offence while in that state of automatism, and it was highly unreasonable to take that risk.
----
³⁵ Supra, note 33 at 472."
 
 

"Automatism
Whether to codify the automatism defence is a controversial and complex question in both law and psychiatry.  In our view, it should only be considered with a thorough review of the defence provisions of the Code, and not on a piecemeal basis.  However, we do note here that, when there is a finding of non-insane automatism, supervisory conditions should not be imposed given that there is no finding of mental disorder to trigger Part XX.1 of the Code." (pp. 7-8)

    "It is with regret that we were forced to cancel our testimony scheduled for April 18^th relative to the Mental Disorder Provisions of the Criminal Code.  While we did have significant discussions internally around a number of issues, we were not able to formulate a unanimous position which, in our view, would have assisted your Committee in its current review.

    Still we would like to comment on a few points around which we were able to develop a more substantial dialogue.

    [...]

    There is also general agreement that automatism be defined in the Criminal Code.  Such codification would allow persons suffering from mental disorders to access the mental health services they require to prevent further occurences of certain behaviours.  It is also felt that non-insane automatism should be codified as well." (pp. 1-2)
 

"Automatism

The common law definition of automatism is satisfactory and it would make little difference if that definition is included in the Criminal Code.

The courts make a distinction between 'mental disorder automatism' and 'non-mental disorder automatism'.  The former is treated as a defence under Section 16 while the latter results in a complete acquittal.

The rationale for acquitting in cases of 'non-mental disorder automatism' is simply that in the circumstances of the case, the court has made a determination that the accused lacked the necessary intent to commit the act for which he or she was charged.  Further, the medical evidence before the court would have been such as to indicate that the medical basis for the lack of intent would probably not repeat itself.  There was, in other words, a 'temporary mental disorder' which deprived the accused of forming the necessary intent.

The approach of the courts is therefore completely consistent with the approach that the courts and the law takes with respect to almost all criminal offences, that is to say the issue of guilt revolves around the question of intent.  Why should the law take any different approach simply because in these cases the inability to form the intent was caused by a temporary mental disorder unlikely to repeat itself as distinguished from repetitious mental disorder automatism which would be treated under section 16.  To do so, would be to treat persons suffering from mental disorder on a different basis than persons who lack the necessary intent for other reasons.

It is therefore very appropriate for a person suffering from 'non-mental disorder automatism' to receive a complete acquittal.  The court should not have the power to impose supervisory orders in those cases." (pp. 3-4)

CANADIAN POLICE ASSOCIATION, "Brief to the Standing Committe on Justice and Human Rights -- Regarding the Statutory Review of the mental disorder provisions of the Criminal Code", 23 April 2002, 12 p.; brief published in English at  http://www.cpa-acp.ca/legislation/briefs/BRIEF%20Mental%20Disorder%20Review_FINAL.pdf ; see the testimony of David Griffin of the Canadian Police Association, before the Committee on 23 April 2002: English / Français; the brief is also available in French/ le mémoire est ussi disponible en français "Mémoire de l'Association canadienne des policiers et policières concernant un examen prévu dans la loi des dispositions du Code criminel sur les troubles mentaux", 23 avril 2002; le mémoire est publié au site de l'Association à http://www.cpa-acp.ca/indexfr.htm; voir aussi le témoignage de David Griffin de l'Association canadienne des policiers et policières, devant le Comité, 23 avril 2002: English / Français;
 

CANADIAN PSYCHIATRIC ASSOCIATION (THE), Brief to the House of Commons Standing Committee on Justice and the Solicitor General, Re: Proposed Revisions for Automatism as Contained in the Draft "Toward a New General Part for the Criminal Code of Canada", in House of Commons, Minutes of Proceedings and Evidence of the Sub-Committee on the recodification of the General Part of the Criminal Code of the Standing Committee on Justice and the Solicitor General, Issue 6 of 19 November 1992 at pp. 6A:1-6A:4; important and influential contribution to the subject; also published in French /aussi publié en français: ASSOCIATION DES PSYCHIATRES DU CANADA, Mémoire au Comité permanent (Chambre des Communes) de la Justice et du Soliciteur général - Objet: Projet de révision du concept d'automatisme contenu dans la "Proposition de nouvelles dispositions générales du Code criminel du Canada", dans Chambre des Communes, Procès-verbaux et témoignages du Sous-comité sur la Recodification de la Partie générale du Code criminel du Comité permanent de la justice et du Solliciteur général, Fasicule 6 du 19 novembre 1992 aux  pp. 6A:5-6A:9; important and influential contribution to the subject;
 

___________"CPA Meets With Justice Committee", (February1993) 25(1) Canadian Psychiatric Association Bulletin 9, 11, 13 and 15; excerpts of testimony and brief of Doctors Maralyn MacKay and Nizar Ladha before Sub-Committee on the recodification of the General Part of the Criminal Code of the Standing Committee on Justice and the Solicitor General on 19 November 1999; also published in French /aussi publié en français: "L'APC rencontre le Comité permanent de la justice", (février 1993) 25(1) Bulletin de l'Association des psychiatres du Canada 8, 10, 12 et 14; extraits des témoignages et du mémoire des docteurs Maralyn MacKay et Nizar Ladha, devant Sous-comité sur la Recodification de la Partie générale du Code criminel du Comité permanent de la justice et du Solliciteur général, le 19 novembre 1992;
 

CANADIAN RESOURCE CENTRE FOR VICTIMS OF CRIME, "Brief to the Standing Committee on Justice and Human Rights on the Review of Mental Disorder Provisions of the Criminal Code", 24 January 2002, available at http://www.crcvc.ca/briefs/Mental%20Disorders.pdf; see also the testimony on  21 March 2002 (E/F) of Steve Sullivan, President and Executive Director, Canadian Resource for Victims of Crime English / Français; the brief is also available in French / le mémoire est aussi disponible en français; voir aussi le témoignage de Steve Sullivan, Président et Directeur exécutif,  Canadian Resource for Victims of Crime English / Français;
 

CARTER, Robert J. and MCCOMBS, J. David, "The 'defences' of Insanity, Automatism and Infancy" in Federation of Law Societies of Canada (ed.), National Criminal Law Program Substantive Criminal Law, vol. 3, St. John's, Newfoundland, 1986;
 

CARTER, Robert J., Annotation, "Unconscious Acts", (1966) 48 Criminal Reports 93-101;
 

___________"Practice Note [Insulin shock as a defence to theft]", (1966) 48 Criminal Reports 90 (one paragraph only); comment on R. v. Rogers (B.C. C.A.) reported at p. 90;
 

Case Notes and Comments, "Automatism", (1973) 21 Chitty's Law Journal 100 (1 column of a two columns page); copy at Ottawa University, KE 12 .C45  Location: FTX Periodicals;

CHERRY, Paul, "Montreal man who killed nun found not guilty by reason of insanity.  Martin Rouleau suffers from epilepsy and was in a state of dissociation when he killed 80-year-old Estelle Lauzon", The Gazette [The Montreal Gazette], 8 February 2010;  Quebec Superior Court Judge Guy Cournoyer; Crown Louis Bouthillier; available at http://www.montrealgazette.com/entertainment/theatre/Montreal+killed+found+guilty+reason+insanity/2537073/story.html?id=2537073 (accessed on 10 February 2010); 
 

CHRISTIE, Sarah (formerly Sarah Oliver), "Unconscious Acts, Guilty Minds?  Placing Limits on the Defence of Sommanbulism", [2001] The Juridical Review 147-163; see Scotland at pp. 150-151, England at pp. 151-152, Australia at p. 152 and Canada at pp. 152-153;
 

CLARIDGE, Thomas, "SCC warns against raising burden for automatism defence", (30 April 2004) 23(49) The Lawyers Weekly 3; note: SCC decision of Fontaine, 22 April 2004;
 

COHEN, Stanley A., "Automatism"  in Christopher Berry Gray, ed.,The Philosophy of Law: An Encyclopedia, New York Garland Publishing, 1999, 2 volumes ( xxxviii, 950 p.), in vol. 1, at pp. 69-72 (series; Garland reference library of the humanities ; vol. 1743), ISBN: 0815313446;
 

COLES,  E. M. (E. Michael), "Scientific support for the legal concept of automatism", (2000) 7(1)  Psychiatry, Psychology and Law 33-50;  see abstract at  http://www.sfu.ca/psychology/groups/faculty/coles/automtsm.htm;
 

COLES, E. M., S. Armstrong, and M. Hughlings, "Jackson on automatism as disinhibition" (1998) 6(1) Journal of Law and Medicine 73-82;  see the abstract at  http://www.sfu.ca/psychology/groups/faculty/coles/automtsm.htm; title noted in my research but article not consulted yet; no copy of this periodical in the Ottawa area libraries; copy at Laval and Sherbrooke Universities;

.
COLES, E. M. and  D. Jang, "A Psychologist Looks at Automatism" (1990) 48(2)  The Advocate 199-203; see  Summary and Conclusions at  http://www.sfu.ca/psychology/groups/faculty/coles/automtsm.htm;
 

___________"A psychological perspective on the legal concepts of 'volition' and 'intent'", (1996) 4(1) Journal of Law and Medicine 1-12; see abstract at  http://www.sfu.ca/psychology/groups/faculty/coles/automtsm.htm; title noted in my research but article not consulted yet; no copy of this periodical in the Ottawa area libraries; copy at Laval and Sherbrooke Universities;
 

COLES, E.M. & H.O.F. Veiel, "Expert testimony and pseudoscience: How mental health professionals are taking over the courtroom", (2001) 24 International Journal of Law and Psychiatry 607-625;
 

COLVIN, Eric, 1945-, Principles of Criminal Law, 2nd ed., [Scarborough]: Carswell, 1991, xxvi, 399 p., on automatism, see pp. 290-296 and 328-331, ISBN: 0459355619 (bound) and 0459355716 (pbk.);
 

COLVIN, Eric, 1945 and Sanjeev Anand, Principles of Criminal Law, 3rd ed., Toronto: Thomson/Carswell, 2007, li, 599 p., ISBN: 978 0779813247;  

COMMUNITY LEGAL ASSISTANCE SOCIETY, testimony before Parliament, House of Commons, Standing Committee on Justice and Human Rights, Review of the Mental Disorder Provisions of the Criminal Code also published in French  / aussi publié en français: témoignage devant, Parlement, Chambre des communes, Comité permanent de la justice et des droits de la personne, Examen des dispositions du Code criminel relatives aux troubles mentaux :

• 9 April 2002 (E/F): From the Community Legal Assistance Society: Diane Nielsen, Lawyer; Corey Bow, Lawyer, Mental Health Law Program:  English / Français

___________"Submissions of the Community Legal Assistance Society to the House of Commons Standing Committee on Justice and Human Rights in Review of the Mental Disorder Provisions of the Criminal Code of Canada" prepared by Diane Nielsen, Corey Bow and Heidi Currie, 20 March 2002, 18 p; document obtained by François Lareau, pursuant to a request under the Access to Information Act to the Department of Justice Canada, their file number: A-2002-0084/mfa, their reply dated 29 July 2002, documents 000172-000189;  also available in French / aussi disponible en français;

"Insane automatism
Medical experts have indicated that insane automatism is not a medical diagnosis.  It is a legal finding.  Two clients that we represented at Review Board hearings have been found NCR-MD on the basis of one occurrence each of insane automatism.  In both cases, alcohol and/or illcit drugs were seen by the experts as a contributing factor.  Neither one of these people had ongoing psychiatric disorders that required treatment nor were they on medication for any length of time.  Yoth spent a significant amount of time in a psychiatric hospital after their trial.
......

It is suggested that cases of insane automatism such as described above, are the result of a single involuntary act that is unlikely to occur again.  The evidence may show that a normal person may not have found the triggers to be extremely shocking, and there was something internal to the accused that caused the involuntary act.  However, it was not related to a continuing psychosis or mental disorder that requires treatment.  If the evidence is that the triggers would unlikely occur again, it is suggested that it ought to be considered in the same light as non-insane automatism resulting in an acquittal.  According to experts neither of these cases requires ongoing psychiatric treatment when there is no continuing disorder." (pp. 4-5)

CÔTÉ-HARPER, Gisèle, 1942-,  Pierre Rainville, 1964-,  et  Jean Turgeon, 1951-,  Traité de droit  pénal canadien, 4^e édition refondue et augmentée, Cowansville: Les Éditions Yvon Blais, 1998, lv, 1458 p., voir sur l'automatisme, les pp. 973-1008, ISBN: 2894512589; note de recherche: la première édition porte le tite: Principes de droit pénal général, 1981;  la deuxième édition en 1984 et la troisième édition en 1989 avec le supplément de 1994 portent le tite de Droit pénal canadien;
 

Criminal Code -- Annotated codes used by practioners/ codes annotés utilisés par les practiciens

    in English (published every year) /en anglais:

GOLD, Allan D., The Practioner's Criminal Code, Markham, Ont.: LexisNexis Canada, 2008;

GREENSPAN, Edward L. and Marc Rosenberg, annotations by, Martin's Annual Criminal Code 2008, Aurora: Canada Law Book Inc.;

WATT, David and Michelle Fuerst, annotations by, The 2008 Annotated Tremeear's Criminal Code, Toronto: Carswell, A Thomson Company;

COURNOYER, Guy et Gilles Ouimet, Code criminel annoté 2008, Cowansville: Éditions Yvon Blais, une société Thomson; note: législation bilingue/bilingual legislation;

Criminal Law Audio Series (C.L.A.S.)

"R. v. Bratty, [1963] A.C. 386", (1975) Sept. C.L.A.S. side 1;
 

"R. v. Hartridge, (1966) 48 C.R. 389", (1975) Sept. C.L.A.S. side 1;
 

"R. v. Haywood, [1971] V.R. 755", (1975) Sept. C.L.A.S. side 1;
 

"R. v. Keogh, [1964] V.R. 755", (1975) Sept. C.L.A.S. side 1;
 

"Rabey v. The Queen, S.C.C., July 18, 1980", (1980) July C.L.A.S.  part of side 1 and side 2 (Commentators: Clay M. Powell and David Watt); copy at the library of the Supreme Court of Canada;
 

CRIMINAL LAWYERS' ASSOCIATION, "Submissions of the Criminal Lawyers Association to the Standing Committee on Justice and Human Rights [Review of the Mental Disorder Provisions of the Criminal Code]", [2002], 12 p.; document obtained by François Lareau, pursuant to a request under the Access to Information Act to the Department of Justice Canada, their file number: A-2002-0084/mfa, their reply dated 29 July 2002, documents 000378-000389;

"Automatism
    Since most defences are not in fact 'codified', the question must be asked whether the impetus to codify 'automatism' is simply a reaction to a public concern or a legitimate need expressed by the judiciary or others in dealing with a difficult concept.  Further, the need for supervisory orders may also be more related to a perceived public safety issue and a lack of understanding of the nature of automatism.  Since the focus of our criminal law is to hold individuals accountable only for offences committed by an 'operating mind', to impose supervisory orders may result in some form of 'punishment' which may inadvertently result from a shortage of the available resources.  It would be helpful to have some imput from Statistics Canada as to the number of times this defence has been used across the country and in what circumstances, before determining whether codification is needed, and whether further consideration needs to be paid to the question of supervision orders.  Just how significant a problem is this?" (pp. 4-5)

"Crown applies to appeal 'sexsomnia' ruling", The Ottawa Sun, Thursday February 2, 2006; case of Jan Luedecke, acquitted on 29 November 2005 of sexual assault, Scarborough; defence counsel is Jonathan Dawe; Justice Russell Otter;

DelBIGIO, Gregory P., "Raising the Defence of Automatism", (June 1999) 12(2) Charter of Rights Newsletter 1-4; the article is signed "G.P.D."; Gregory P. DelBigio is the associate editior of the newsletter; discusses the case of  R. v. Stone, [1999] 2 S.C.R. 290-415;
 

DELISLE, R.J., "Stone: Judicial Activism Gone Awry to Presume Guilt", (1999) 24 Criminal Reports (5th) 91-96;

"The majority in Stone imposed a persuasive burden on the accused, with respect to an essential ingredient of the crime, with no evidence that it was necessary to do so." (p. 96)

DEMKIW,  E. W., Automatism as a defence, LL.B. thesis, University of Manitoba, 1961, iv, 2, 28 leaves; title noted in my research but document not consulted yet; no copy in the Ottawa area libaries;
 

DENNO, Deborah W., "A Mind to Blame: New Views on Involuntary Acts", (2003) 21(5) Behavioral Sciences & the Law 601-618; discusses Parks and Stone;
 

DREWRY, Richard, see CANADIAN MENTAL HEALTH ASSOCIATION, supra;
 

DUBBER, Markus Dirk,  "Commentary" in Don Stuart, 1943-,  R.J. Delisle and Allan Manson, eds., Towards a Clear and Just Criminal Law: A Criminal Reports Forum, Scarborough (Ontario): Carswell, Thomson Professional Publishing, 1999, v, 574 p., at pp. 156-182, see "Involuntary Conduct" at pp. 170-171, ISBN: 045927077X;  Research Note: commentary on Don Stuart's proposals on the General Part in his article "A Case for a General Part", see Stuart, Don, infra;
 

"Editorial: Rewritting Automatism", (1999) 4 Canadian Criminal Law Review /Revue canadienne de droit pénal 119-121; also publish in French / aussi publié en français : "Éditorial: L'automatisme refait", pp. 123-126;
 

EDWARDH, Maryls, "Sleepwalking as Non-Insane Automatism: R. v. Parks", in Edward L. Greenspan, ed., Counsel for the Defence: The Bernard Cohn Memorial Lectures in Criminal Law, Toronto: Irwin Law, 2005, xix, 267 p., at pp. 93-108, ISBN: 1552211029; copy at the University of Ottawa, FTX KE 8809.5 .C69 2005;
 

EDWARDS, J.Ll.J., "Automatism and Social Defence", (1965-66) 8 The Criminal Law Quarterly 258-289; also available, maybe differently, as Automatism and Social Defence: An Address Given at a Post-Graduate Medical Education of the Faculty of Medicine, University of Toronto, Mar. 13th, 1964, [Toronto], [s.n.], 1964, 32, 4 l., 28 cm., reproduced from typewritten script, call number at UWO: KF9240.E39 (not consulted);
 

EWASCHUK, Eugene G., Criminal Pleadings and Practice in Canada, 2nd ed., 3 volumes, Aurora (Ontario): Canada Law Book, 1987-, see vol. 2, part "21:1000 Automatism (Autonomic Conduct)", 10 p. (book consulted on 29 July 2002), ISBN: 888041438 (vol. 2); copy at the Library of the Supreme Court of Canada, KF9656 E93 1987;
 

FERGUSON, Frederick, "Automatism" in National Criminal Law Program: Substantive Criminal Law (1996: Winnipeg), [ed.],  National Criminal Law Program, The Federation of Law Societies of Canada, Winnipeg (Manitoba) : Federation of Law Societies, 1996, 2 volumes;  information from http://gate.library.ualberta.ca/ (The GATE:  NEOS Libraries' Catalogue), accessed on 11 November 2000; document not consulted; note: on automatism: see volume 2, section 15.2, 18 p;  Note: "University of Manitoba, Winnipeg, Manitoba, July 15 to 19, 1996"; copy at the Library of the Supreme Court of Canada;
 

FERGUSON, Gerry  A. and John C. Bouck, Canadian Criminal Jury Instructions (CRIMJI), 3rd edition, Vancouver (British Columbia) : Continuing Legal Education Society of British  Columbia, 1994-,  ISBN: 0865047715, see "Automatism" at vol. 2, CRIMJI 8.08, 34 p. (latest amendment 11/01; consulted on 29 July 2002); copy at the library of the Supreme Court of Canada, Ottawa, KF9682 F47 1994;
 

FERGUSON, Gerry, "Actus Reus and Automatism", February 1992, 36 p.; discussion paper prepared for the Canadian Bar Association, National Criminal Justice Section, Committee on Criminal Code reform, mentioned in The Canadian Bar Association Task Force REPORT, Principles of Criminal Liability: Proposals for a New General Part of the Criminal Code, Ottawa, [1992], x, 190 p., ISBN: 0920742335, at p. 189; copy  available from the Canadian Bar Association, Ottawa;
 

___________"Recent Developments in Canadian Criminal Law", (2000) 24(4) Criminal Law Journal 248-263, see "Automatism" at p. 259 (1 p. only);
 

___________Submission to the Parliamentary Subcommittee on Recodification of the Criminal Law: Mental Disorder, Diminished Responsibility and Automatism,  October 1992. in  House of Commons, Sub-Committee on the Recodification of the General Part of the Criminal Code of the Standing Committee on Justice and the Solicitor General, Minutes of Proceedings and Evidence of the Sub-Committee on the recodification of the General Part of the Criminal Code of the Standing Committee on Justice and the Solicitor General, Issue 5 of 2 et 18 November 1992, pp. 5A:195-5A:223; also published in French / aussi publié en français : Mémoire au sous-comité parlemantaire sur la nouvelle codification du droit pénal: troubles mentaux, responsabilité et automatisme, in CANADA, Chambre des Communes, Sous-comité sur la Recodification de la Partie générale du Code criminel du Comité permanent de la justice et du Solliciteur général, Procès-verbaux et témoignages du Sous-comité sur la Recodification de la Partie générale du Code criminel du Comité permanent de la justice et du Solliciteur général, octobre 1992, fasicule numéro 5 du 2 et 18 novembre 1992, aux  pp. 5A:435-5A:460;
 

FORENSIC PSYCHIATRIC SERVICES COMMISSION of BRITISH COLUMBIA, see supra, BRITISH COLUMBIA FORENSIC PSYCHIATRIC SERVICES COMMISSION
 

FORTIN, Jacques, 1937-1985, et Louise Viau, Traité de droit pénal général, Montréal: Éditions Thémis, 1982, xi, 457 p.; Table Analytique des Matières: ...2. L'automatisme...201 à 212:  Introduction. A. Notion...201 à 208: Notion médicale.  Notion juridque.  La cause de l'automatisme.  B. Conditions de recevabilité...208 à 209 : La preuve de l'automatisme.  Automatisme et fardeau de preuve.  La preuve médicale.  C. Automatisme et responsabilité...210 à 212:  Deux approches distinctes.  Automatisme et actus reus.  Automatisme et mens rea;
 

FUERTS, Michelle, "Automatism", in National Criminal Law Program (2004 : Halifax, N.S.), Dalhousie University, Faculty of Law, and Federation of Law Societies of Canada, Substantive criminal law : 2004 National Criminal Law Program, Dalhousie University, Halifax, Nova Scotia, July 12 to 16, 2004 / presented by the Federation of Law Societies of Canada in conjunction with the Faculty of Law, Dalhousie University, [s.l. : s.n.], 2004, 3 v., in volume 2, Tab 12.2, 22 p.; copy at the Library of the Supreme Court of Canada KF9220 ZA2 N38 2004;
 

GERVAIS, Francis, voir, supra, BARREAU DU QUÉBEC;

GOLD, Alan D., Criminal offences and defences, contributed by Alan D. Gold: contributing editor, Andrew James, contributor editor, Brendon Lounsbery, Markham (Ontario): LexisNexis Canada, 2007, 1034 p., and see "Automatism", at pp. 897-899 (series; Halsbury's Laws of Canada), ISBN: 9780433454267; 
 

GRANT, Isabel, 1957-, Dorothy Chunn and Christine Boyle, The Law of Homicide, Scarborough (Ontario): Carswell, Thomson Professional Publishing, 1994-, 1 volume looseleaf with yearly sipplements, see subchapter 6.10, "Involuntariness", ISBN: 0459552244; there was a hardcover copy published in 1994, various pagings, ISBN: 0459552562 (pbk.);
 

GRANT, Isabel and Laura Spitz, "Case Comments: Criminal Law - Defences - Automatism - Accused Killing While Sleepwalking - Acquittal or Not Guilty by Reason of Insanity: R. v. Parks", (1993) 72 The Canadian Bar Review 224-237; copy at Ottawa University, KE 365 .A2 C344  Location: FTX Periodicals; comments on  R. v. Parks, [1992] 2 S.C.R. 871;
 

GRANT, Isabel, "Developments in Substantive Criminal Law: The 1998-99 Term", (2000)  The Supreme Court Law Review (2nd series) 233-306, see "R. v. Stone" at pp. 283-304;  R. v. Stone, [1999] 2 S.C.R. 290-415;
 

___________ "Developments in Substantive Criminal Law: The 2003-2204 Term", (2004) 26 The Supreme Court Law Review (2nd series) 215-287; see R. v. Fontaine, at pp. 218-227;
 

GRANT, William J., see, infra, Nova Scotia Review Board;
 

HEALY, Patrick, "Another Round on Intoxication", (1995) 39 Criminal Reports (4th) 269-276; part of the "Criminal Reports Forum on Daviault: Extreme Intoxication Akin to Automatism Defence to Sexual Assault" at pp. 269-294;
 

___________"Automatism Confined", (2000) 45 McGill Law Journal  87-105;

"This article begins by briefly tracing the development of automatism in Canadian criminal jurisprudence. Most recently, R. v.Stone is remarkable not only for the pronouncements of the majority, but also for the differences between them and the reasons of the minority. The majority restates the substantive law of automatism and some of its evidentiary aspects. According to the majority, evidence of involuntariness that apparently arises from some form of automatism raises a presumption of mental disorder against the accused. To displace that presumption and benefit from a defence of                      non-insane automatism, the accused must, first, satisfy an unusually weighty evidential burden before the trial judge and, second, meet a legal burden by persuading the jury on the balance of probabilities. Also unusually, the majority requires that the trial judge instruct the jury as to factors to consider in weighing the evidence. The initial presumption that automatism results from mental disorder is far removed from medical understanding of the subject. The majority states that a defence of  non-insane automatism would be good only if the average person would have reacted to the external events in the same way. The chance of demonstrating this is, by definition, almost nil and so effectively eliminates the applicability of the defence. The reverse legal burden on the accused created in Stone violates the presumption of innocence as protected in the Canadian Charter of Rights and Freedoms. The majority then justifies its own Charter violation under section 1. This shows a bold understanding of the Court’s role in addressing problems it perceives. The article suggests that it seems that Canadian law cannot afford the full presumption of innocence. The Supreme Court of Canada in Stone adjudicated a constitutional question without notice and submissions. In effect, the Court used the Charter to legislate ordinary law. This article urges greater restraint by the Court in use of the Constitution." (source:  http://journal.law.mcgill.ca/abs/451healy.htm; résumé en français aussi disponible à ce site)

HOLLAND, Winifred H., "Automatism and Criminal Responsibility", (1982-83) 25 The Criminal Law Quarterly 95-128; copy at Ottawa University, KE 8802 .C534  Location: FTX Periodicals;
 

___________"Comments on the Consultation Paper", February 1995, 7 p., see "Automatism" at pp. 5-6; document obtained by François Lareau, further to an Access to Information Act request of 21 August 1998 to the Department of Justice Canada, request number A98-00147, documents page number 000232-000240 (includes covering page letter);

"Automatism:
    In light of what occurred in Parks some reforms are required.  I note that the intention is to maintain the distinction between insane and non insane automatism but to bring the latter closer to the former in terms of burden of proof and potential consequences.  However, there are some problems.  X kills Y and the court, following Parks, uses a combination of the external/internal and recurring danger tests.  The accused is acquitted rather than found N.C.R.  That must mean that there has been a finding that he is not a continuing danger to society.  However, if the new proposal is implemented he would fall within the new special verdict and would be subject to detention.  A Charter challenge could well be mounted on the ground that there is no basis for his detention since he is not a danger to society.  However, it's possible that s. 1 of the Charter might be invoked successfully here.

    I do think that we need to attempt to define the border line between sane and insane automatism.  Are conditions such as epilepsy; diabetes; brain tumours; arteriosclerosis; hyper and hypoglaecemia etc.  to be included within sane or insane automatism?  Option 2 would expand mental disorder to include all forms of automatism but if that is the preferred option it would be necessary to exclude concussion and also extreme forms of intoxication (Daviault) from the definition.

    The other issue, which I addressed above, is that of the effect of prior fault on automatism (e.g. epileptic driver who ignores medical advice).  Do we need a special provision which excludes this situation from automatism and treats the accused as responsible for his actions?  Of course this would depend on the level of mens rea required for the offence charged -- it would not be possible to use prior fault if the offence required proof of intention but is certainly appropriate in negligence offences and even those which require recklessness." (pp. 5-6)
 

___________"Murder and Related Issues: An Analysis of the Law in Canada -- Report to the Law Commission", July 2005, in The Law Commission, The Law of Murder: Overseas  Comparative Studies, [London: HMSO, 2005], at pp. 22-65;  available at http://www.lawcom.gov.uk/docs/comparative_studies.pdf (accessed on 27 December 2005); 

HORN, Mike, "A Rude Awakening: What to Do with the Sleepwalking Defense?", (2004) 46(1) Boston College Law Review 149-182; available at (accessed on 15 December 2005); discusses the Supreme Court of Canada decision of Parks;
 

HOYLES, N.W., "Criminal Law: The Essentials of Crime", (1910) 46 Canada Law Journal 393-416 [Contents: "I An Act of the Will: 1. Generally; 2. Somnambulism; 3. Hypnotism; II.  Malice - Criminal Intention; III. An Attempt, or Overt Act: 1.  Generally; 2. What amounts to an Attempt. 3. Some of the rules for determining whether a given act is an attempt; 4.  Acts done in contemplation of the Subject; IV.  The rule under the Criminal Code"];
 

Illico Inc., "[Fac. aff.] La défense d'intoxication et d'automatisme», recherche jurisprudentielle", FC-8317, août 1995; titre noté dans ma recherche mais article non consulté;
 

INSTITUT PHILIPPE PINEL DE MONTRÉAL, voir, infra, Morissette, Louis;
 

INSTITUTE OF LAW RESEARCH AND REFORM, Defences to Provincial Charges, Edmonton: The Institute of Law Research and Reform, March 1984, ii, 123 p., see on automatism  pp. 56-57 (series; Report; number 39);
 

JANG, Deborah and E.M. Coles , "The Evolution and Definition of the Concept of 'Automatism' in Canadian case law", (1995) 14(3/4) Medicine & Law  221-238; see abstract at  http://www.sfu.ca/psychology/groups/faculty/coles/automtsm.htm; copy at Ottawa University, RA 1001 .M423,  Location: FTX Periodicals;
 

JEFFCOCK, Malcolm S., see infra, NOVA SCOTIA LEGAL AID;
 

JENNINGS, John, "The Growth and Development of Automatism as a  Defence in Criminal Law" (1962) 2 Osgoode Hall Law Journal 370-382; copy at Ottawa University, KEO 5 .O574  Location: FTX Periodicals;
 

KALANT, Harold, "Intoxicated automatism: legal concept vs. scientific evidence", (1996) 23 Contemporary Drug Problems 631-648; the author's note at p. 631 reads in part as follows: "This paper was originally prepared as a submission to the House of Commons Standing Committee on Justice and Legal Affairs, and was presented before the Committee on June 13, 1995";
 

___________"A Submission to the Standing Committee on Justice and the Solicitor General, Concerning Reform of the Criminal Code of Canada with Special reference to the concept of intoxicated automatism", Department of Pharmacology, University of Toronto and Addiction Research Foundation of Ontario, March 31, 1995, 15 p.,  published in Canada, House of Commons, Standing Committee on Justice and Legal Affairs, Minutes of the Standing Committee on Justice and Legal Affairs, Issue 112 (meetings 158-164 - from 6-20 June 1995), Ottawa: Published under authority of the Speaker of the House of Commons by the Queen's Printer for Canada, available from Canada Communication Group Publishing, 1995, pp. 112A: 80 to112A:94; also published in French (translation) /aussi publié en français (traduction), "Mémoire présenté devant le Comité permanent de la justice et du Solliciteur général au sujet de la réforme du Code criminel du Canada en ce qui touche particulièrement le concept d'automatisme par intoxication", Départment de pharmacologie, Université de Toronto et Fondation de la recherche sur la toxicomie de l'Ontario, 31 mars 1995, 15 p., publié dans Canada, Chambre des communes, Comité permanent de la Justice et des questions juridiques, Procès-verbaux du Comité permanent de la Justice et des questions juridiques, numéro 112 (séances 158-164 - du 6-20 juin 1995), Ottawa: Publié en conformité de l'autorité du Président de la Chambre des communes par l'Imprimeur de la Reine pour le Canada, en vente: Groupe Canada, 1995,  aux pp.112A:158 à 112A:172;
 

KATES, Christine J.N., "The Osgoode Society Oral History Program - Mr. Justice G. Arthur Martin and the defence of Automatism", (1986) 5(3) The Advocates' Society Journal 42-46 and 49; contains excerpts of the Osgoode Society interview with Mr. Justice G. Arthur Martin on 7 August 1984; copy of this periodical at the National Library of Canada, Ottawa;
 

KLIMCHUK, Dennis, 1967-, Involuntariness, agency and the criminal law, Ph.D. thesis, University of Toronto, 1995. vii, 215 p.; copy at the National Library; available at http://www.collectionscanada.ca/obj/s4/f2/dsk3/ftp04/NQ28142.pdf (accessed on 16 May 2006);
 

KNOLL, Patrick J., 1950-, Criminal Law Defences: Textbook Edition of the title Criminal Law Defences Canadian Encyclopedic Digest Third Edition, 2nd ed.,  Scarborough: Carswell (Thomson Professional Publishing), 1994, 224 p., see "Automatism" at pp. 124-127, ISBN: 0459552392; there is now a 3rd edition; copy at the Library of the Supreme Court of Canada, KF9240 K66 1994; like the title indicates, also published in the Canadian Encyclopedic Digest;
 

LAW REFORM COMMISSION OF CANADA, The General Part - Liability and Defences, Ottawa: Minister of Supply and Services Canda, 1982, [10], 204 p., (series; Working Paper; number 29), see "Automatism" at pp. 63-69 with notes at p. 134,  ISBN: 0662514297; English version of the this working paper available in pdf format at my Digital Library -- Canadian Criminal Law; also published in French / aussi publié en français: Partie générale - responsabilité et moyens de défense, Ottawa: Ministère des Approvisionnements et Services Canada, 1982, [10], 239 p., voir les "Automatisme" aux pp. 71-78 avec les notes à la p. 154 (collection; Document de travail; numéro29),  ISBN: 0662514297;

"[p. 63]

2. Automatism

    The term 'automatism' comes from the word 'automaton' which denotes a body acting without a directing mind.  In principle a body so acting is not fit for criminal responsibility since it cannot help what it does.  This condition of automatism has been defined in terms of unconsciousness, involuntariness or a combination of the two.⁶⁹

    The difficulty faced by law in this regard is that of defining automatism with sufficient narrowness.  For it must carefully distinguished from three other situations: mental disorder,

[p. 64]
intoxication and mere loss of temper.  While automatism leads to an acquittal, none of the above situations should necessarily do so.  Unconscious behaviour resulting mental disorder is, as argued earlier, symptomatic of a dangerous condition and should obviously be governed by the insanity defence.  Unconscious conduct resulting from voluntary intoxication is the accused's own fault and should clearly fall under the rules relatig to intoxication.  And unconscious or involuntary acts resulting from mere loss of temper should not be free from liability since tempers must be kept.⁷⁰  On the other hand, unconscious actions due to such accidental causes as blows on the head are rightly recognized as fit subjects for an automatism rule calling for a full acquittal.

The Common Law

    For these reasons the common law allowed only a restricted defence of automatism.  At present, the defence serves to exclude from criminal liability two kinds of occurence.  One consists of twitches, spasms and other reflexes, which for the most part, because of sensible exercise of prosecutorial discretion, never come before the courts.  The other consists of acts committed in some state of clouded consciousness for which the accused is not to blame.

    The defence of automatism, however, is restricted in four ways.  First, it does not cover insane automatism -- involuntary behaviour resulting from disease of the mind falls to be dealt with under the insanity provisions.⁷²   Second, it does not cover automatism due to voluntary intoxication -- this likewise falls under the more appropriate rubric of intoxication.⁷³  Third, it does not cover involuntary behaviour resulting from the accused deliberately or negligently allows himself to get into a condition of automatism (e.g. he knows his condition and fails to take his prescribed medication).⁷⁴

    The fourth restriction relates to loss of temper.  Understandable though it might be to lose one's self-control and fly

[p. 65]
into a rage, our law has never recognized it as a basis for a real defence.⁷⁵  At most it has by way of concession allowed loss of temper as a mitigating factor to be taken into account under the rubric of provocation in sentencing.  Even in murder, where it seems to constitute a true defence, the law allows it only to reduce to manslaughter what would otherwise incur a fixed penalty.⁷⁶  In short, as far as liability is concerned, common law here disregards the defendant's personal equation and insists that he keep his temper.

Problems with Common Law

    Three main problems arise with the present law. They concern the definition of automatism, its relation to insanity and its connection with blameworthiness.

    (1) Definition

    The main problem with the common law in this regard -- and here as yet our law in Canada has not been codified -- is one of definition.  Automatism being a relatively recent addition to common-law defences, the law has proceeded chiefly on a case-by-case basis allowing the defence in certain circumstances but rejecting it in others.  The law has not yet arrived at a more general rule to make clear which kinds of circumstances do and do not justify a defence of automatism.

    (2) Automatism and Insanity

    The second problem relates to the line between insanity and automatism.  Common sense would allot involuntary acts arising from mental disease to insanity and those from other causes, e.g. physical disease, to automatism.  Case law however, has extended 'disease of mind' in the insanity rule to cover such physical diseases as arteriosclerosis and has narrowed automatism to involuntariness due to external causes, e.g. concussion.  This raises two further problems.  First, does 'disease of mind' also extend to epilepsy and somnambulism?  Second, could the insanity defence be available to an accused

[p. 66]
who, because of 'disease of mind', acts without volition but with knowledge of what he does?

    As indicated above, the solution to the second question depends on the formulation of the insanity rule.  If this rule were extended to cover cases of inability to conform with the requirements of the law, then it could apply to defendants who, by reason of insanity, act without volition but with awareness.  If it were not so extended, it should not in principle apply to such defendants.  It may well be, however, that as some medical evidence suggests, the mind is not so compartmentalized, that insane loss of self-control is always accompanied by loss of awareness and therefore that defendants of the type mentioned form a non-existent class.

    (3) Automatism and Blameworthiness

    Clearly the principle behind allowing a defence of automatism is that an accused cannot be blamed for things which are not his fault.  Involuntary behaviour is typically not the actor's fault.  Involuntary behaviour, however, due to self-induced intoxication, negligence (e.g. the diabetic who delays taking his insulin) or loss of temper can be said to be his fault.  Here the defence should obviously be excluded, and to this end the Draft specifically excludes involuntary conduct arising from such causes as intoxication and provocation and restricts automatism to accidental or unforeseeable disturbances of mind.  At the same time whether automatism due to psychological trauma

[p. 67]
should be allowed (e.g. loss of control due to seeing one's family annihalated), is a matter on which we have reached no final conclusion.
 

          DRAFT LEGISLATION

{Automatism] 7. (1) Every one is excused from criminal liability for unconscious conduct due to temporary and unforseeable disturbance of the mind resulting from external factors sufficient to affect an ordinary person similarly.

    (2) This section does not apply to conduct due to mental disorder, intoxication or provocation.
 

    ANNOTATION TO DRAFT LEGISLATION

    Draft section 7 follows the approach of the present law.  It defines automatism in terms of conduct rather than of psychological condition.  In so defining it, subsection (1) restricts it to unconscious conduct resulting from external factors.  Subsection (2) excludes from the application of the defence conduct resulting from mental disorder, intoxication and provocation.

    The words 'unconscious conduct' codify the present law.  Behaviour which at first sight looks voluntary but which on further inspection turns out to be involuntary is excluded from criminal liability.  'Non-acts' of course, like twitches and spasms, are not conduct at all and are therefore excluded from criminal liability.  Acts which are 'non-acts' in that sense, but are done without consciousness, come under this subsection.

    The words 'due to temporary and unforeseeable disturbance of the mind resulting from external factors' are used in order to distinguish automatism from mental disorder.  In fact

[p. 68]
mental disorder and automatism relate to two quite different types of defendants.  The first consists of those whose abnormal conduct results from some pathological impairment rendering them potential sources of danger.  These fall under the mental disorder rule in Draft section 5 and would be dealt with by a special verdict and committal under provisions similar to those of Cr. C. s. 542.  The second type consists of those whose abnormal conduct results from some accidental occurrence, e.g. concussion, temporarily impairing their faculties but not rendering them dangerous in the long term.  These fall under the rule relating to automatism.

    The Draft differentiates between those two types in three ways.  First, by using 'disease of the mind' in Draft section 5 it impliedly allots the first type of case to mental disorder and the second type to automatism.  Second, by defining automatism in terms of 'temporary disturbance resulting from external factors' it expressly restricts automatism to cases of the second type.  Third, in subsection 7(2), it expressly excludes cases of mental disorder from automatism.

    This leaves the problem of persons whose minds are temporarily disturbed by physical, i.e. non-mental diseases, e.g. arteriosclerosis.  Logic militates against alloting them to the mental disorder category, as is done by present case law.  Policy, however, supports the case law, for though the disease in question may not be medically speaking a mental one, the sufferer is still a potential source of danger, so that outright acquittal would be unwise.  By using the term 'disease of the mind' in Draft section 5 and 'mental disorder' in subsection 7(2) the Draft in this regard retains the present law.

    The term 'unforeseeable' is used to restrict the defence to cases where the accused is free of fault.  If he could have foreseen the disturbance of mind, he is not free from fault and cannot avail himself of the defence of automatism.  A diabetic in a state of automatism would be at fault if that automatism resulted from his failure to take the insulin prescribed.  A motorist driving dangerously in a state of automatism would be at fault if that automatism resulted from voluntary consumption of alcohol and drugs which was foreseeably likely to produce

[p. 69]
such a state.  'The necessary fault is to be found in the consumption of alcohol and drugs under circumstances in which he knew or ought to have known that his ability might be impaired' -- per Martin in R. v. McDowell.⁷⁷

    The words 'external factors' build on the distinction drawn by the case law between sane and insane automatism.  To be within the defence of automatism the unconscious conduct must result from some external cause.  If it results from some internal factor, it is excluded from automatism and resides, if anywhere, under mental disorder.

    A clear case of sane automatism arises where unconscious acts results from a concussion.  Here the requirement in subsection (2) of an external factor is met squarely.  Less clear are cases where acute emotional stress, fugues, fits and so on are caused by a combination of an external situation (e.g. a love disappointment) and a psychological weakness peculiar to the accused.  Here the further requirement that the external factor be sufficient similarly to affect an ordinary person excludes such cases on the ground that normal individuals must be required to live up to the general standards of the criminal law, while abnormal individuals should be dealt with in the context of mental disorder."
-----
"69.  Bratty v. A.-G. for Northern Ireland (1961), 46 Cr. App. R. 1 (H.L.); R. v. Hartridge, [1967] 1 C.C.C. 346, 48 C.R. 389, 56 W.W.R. 385, 57 D.L.R. (2d) 332 (Sask. C.A.); R. v. O'Brien, [1966] 3 C.C.C. 288, 56 D.L.R. (2d) 65 (N.B. C.A.); Cullum v. R. (1973), 14 C.C.C. (2d) 294 (Ont. Co. Ct.); R. v. Rabey (1977), 37 C.C.C. (2d) 461 (Ont. C.A.).

70.  Rabey v. R., supra, n. 27.

71.  Bleta v. The Queen, [1964] S.C.R. 561, [1965] 1 C.C.C. 1, 44 C.R. 193, 48 D.L.R. (2d) 139.

72.  R. v. Kemp, supra, n. 35.

73. R. v. Hartridge, supra, n. 69.

74.  R. v. Quick and Paddison, [1973] 3 All E.R. 347, 57 Cr. App. R. 722, [1973] Q.B. 910 (C.A.).

75. Rabey v. R., supra, n. 27.

76.  Hale, 1 Pleas of the Crown (1678) 434.

77. R. v. McDowell (1980), 52 C.C.C. (2d) 298 at 304 (Ont. C.A.)." (p. 134)
 

"2(3) Conduct.

(a) General Rule.  Unless otherwise provided in the definition of a crime, a person is only liable for an act or omission performed by that person.

Comment

    Basic to criminal law tradition is the idea that liability is only for acts and omissions performed by the accused himself and not for acts of God, acts of others or 'non-acts' like twitches.  This idea, enshrined in the doctrine that there must be an actus reus, is well recognized by writings of scholars, by decided cases¹⁶ and by several other Criminal Codes, but is not articulated in our own Criminal Code.  Explicit articulation is given, therefore, in this clause.  As to conduct outside an accused's control, see clause 3(1) ('Lack of Control').  The words '[u]nless otherwise provided' recognize that a person may be liable, through the rules on involvement in crime, for acts or omissions performed by others.  It is to be noted that while traditionally crimes have been divided into acts, omissions and states (for example possession), the last of these three can readily be included under the rubric of 'act' since a person has to do something to put or keep himself in the state in question. ...
----
16 See R. v. Tolson, supra, note 15.  See also Leary v. R. (1977), [1978] 1 S.C.R. [hereinafter Leary]; R. v. King (1962), [1962] S.C.R. 746; and Perka v. R. (1984), [1984] 2 S.C.R. [hereinafter Perka]." (pp. 18-19)

......

"3(1) Lack of Control.

(a) Compulsion, Impossibility, Automatism.  No one is liable for conduct which is beyond his control by reason of:

(i) physical compulsion by another;
(ii) in the case of an omission, physical impossibility to perform the act required; or
(iii) factors, other than loss of temper or mental disorder, which would similarly affect an ordinary person in the circumstances.

(b) Exception:  Negligence.  This clause shall not apply as a defence to a crime that can be committed by negligence where the lack of control is due to the defendant's negligence.

Comment

    Clause 2(3)(a) defines 'conduct' as an act or omission 'performed by that person.'  Clause 3(1) deals with lack of control arising from three special causes.  None of these are dealt with in the present Criminal Code,²⁶  but common law clearly recognizes physical compulsion,²⁷ and automatism²⁸ and perhaps impossibility in cases of omission (lex non cogit ad impossibililia).

    Automatism, which has generated many cases recently, presents a special problem.  On the one hand, a person is not generally liable for involuntary behaviour, that is, behaviour outside his control, and an involuntary actor certainly cannot be censured for intentional wrongdoing.  On the other hand, the law has to consider two other factors: (1) a person may be to blame for being in a state where his behaviour is beyond his control and (2) even if he is not blameworthy, he may still be a danger to society.

    Clause 3(1)(a) deals with these factors as follows.  First, it excludes the defence altogether: (1) in cases where the lack of control results from rage or loss of temper; and (2) by virtue of clause 3(1)(b), in cases where it results from negligence and the crime charged is one of negligence.  So, where D through negligence fails to take his medicine and as a result gets into a state of automatism in which he kills or harms V, he will be liable for causing death or harm, as the case may be, by negligence.

    Second, clause 3(1)(a)(iii) excludes the defence from cases where the accused is mentally disordered or where he is affected by the factors in question in a way in which an ordinary person would not be affected.  In both these cases the accused, though not to blame, remains a possible social danger.  In the case of mental disorder, therefore, he must be dealt with under the mental disorder provision of clause 3(6).  In the case of undue sensitivity to the affecting factor (for example a susceptibility to be overcome by strobe lights that would have no effect on the average person) he remains straightforwardly criminally liable and has no defence under clause 3(1)(a)(iii).  In such case, if it thinks fit, a court may remand the defendant for medical or psychiatric investigation." (pp. 29-30)

___________Recodifying Criminal Law, vol. 1, Ottawa: Law Reform Commission of Canada, 1986, [14], 117 p., ISBN: 0662547322 (series; Report; number 30); available at my Digital Library, at http://www.lareau-law.ca/DigitalLibrary.html; information on the French version/informations sur la version française, Commission de réforme du droit du Canada, Pour une nouvelle codification du droit pénal, vol. 1, Ottawa : Commission de réforme du droit du Canada, 1986, [14], 117 p.,  ISBN: 0662547322 (collection; Rapport; numéro 30);
 

___________"Canadian Criminal Law  - Selected Bibliography on Mental Disorder, Insanity and Unfitness to Stand Trial with Elements of Criminology, History, Psychiatry and Psychology", available at Authors/Auteurs:   • A-C--• D-K--•L-R--• S-Z / "Droit pénal canadien - Bibliographie choisie sur le désordre mental, l'aliénation mentale et l'aptitude à subir le procès avec des éléments de criminologie, d'histoire, psychiatrie et psychologie", disponible sous auteurs: • A-C--•D-K---•L-R---• S-Z;
 

LAW REFORM COMMISSION OF SASKATCHEWAN, Proposals for Defences to Provincial Offences: Report to the Minister of Justice,  Saskatoon : Law Reform Commission of Saskatchewan, December 1986, 18 p., see "Common Law Defences" at pp. 13-15;
 

LEGAL AID ONTARIO / AIDE JURIDIQUE ONTARIO -- LAO  LAW, Criminal Law Memoranda, Toronto, catalogue current as of February 1, 2006; see http://www.lss.bc.ca/__shared/assets/LAOlawindex1225.pdf  and http://www.legalaid.on.ca/ (both sites accessed on 24 February 2006); see:
- D1-1, Automatism (13 Feb 2003; 26 pages);
- D1-2, Non-Insane Automatism and Intoxication (13 Feb 2003, 18 pages);
 

LEBEL, Louis, "La consolidation des fondements de la responsabilité pénale en droit criminel canadien depuis l'entrée en vigueur de la Charte canadienne des droits et libertés",  (2009) 50 Cahiers de Droit 735-748;

LEGGETT, Stephen G., "Defences Involving 'Diminished Responsibility'", (September 1977) Crown's Newsletter 1-7;
 

LEIGH, L.H., "Automatism and Insanity", (1962-63) 5 The Criminal Law Quarterly 160-174; copy at Ottawa University, KE 8802 .C534  Location: FTX Periodicals;
 

LIVINGSTON, James D. and Simon N. Verdun-Jones, "Sidebar Psychology: Discussing and Challenging the Defence of Psychological-Blow Automatism", (December 2002) 47(1) The Criminal Law Quarterly 79-110;
 

LIVINGSTON, James D., Emotional breaking point? : psychological-blow automatism and provocation in Canada, M.A. Thesis (Criminology), Simon Fraser University, 2001, vi, 167 leaves; title noted in my research but thesis not consulted yet;

LUTHER, Glen and Mansfield Mela, "The Top Ten Issues in Law and Psychiatry", (2006) 69(2) Saskatchewan Law Review 401-440, and see "The Fall of the Defence of Automatism?", at pp. 420-423;  
 

MANNING, Morris, "Rethinking Criminal Law in the Age of the Charter of Rights and Freedoms: The Necessity for a 21st Century Criminal Code", (July 2003) 47(4) The Criminal Law Quarterly 406-437, see on automatism, pp. 421-424;
 

MARTIN, G. Arthur, "Introduction" in National Symposium on Medical Sciences and the Criminal Law, Proceedings of the National Symposium on Medical Sciences  and the Criminal Law: Held in the Medical Sciences Building, University of Toronto, Monday, May 28th - Tuesday, May 29th, 1973 / convened by the Centre of Criminology, University of Toronto, Toronto : Centre of Criminology, University of Toronto, c1974, xviii, 151 p., at pp. 1-6;
 

___________"Insanity as a Defence", (1966) 14 Chitty's Law Journal 163-171;
 

___________"Insanity as a Defence", (1965-66) 8 The Criminal Law Quarterly 240-257; copy at Ottawa University, KE 8802 .C534  Location: FTX Periodicals;
 

McARTHUR, Karen M., "Through Her Looking Glass: PMS on Trial", (1988-89) 47 Supplement University of Toronto Faculty of Law Review 825-873, see on automatism, pp. 854-856;
 

McCALDON, R.J., "Medico-Legal Automatism", (1964) 91 Canadian Medical Association Journal 914-920; issue of 24 October 1964;

"ABSTRACT
Individuals can carry out complex activity while in a state of impaired consciousness, a condition termed 'automatism'.  Consciousness must be considered from both an organic and a psychological aspect, because impairment of consciousness may occur in both ways.  Automatism  may be classified as normal (hypnosis), organic (temporal lobe epilepsy), psychogenic (dissociative fugue) or feigned.  Often painstaking clinical investigation is necessary to clarify the diagnosis.  There is legal precedent for assuming that all crimes must embody both consciousness and will.  Jurists are loath to apply this principle without reservation, as this would necessitate acquittal and release of potentially dangerous individuals.  However, with the sole exception of the defence of insanity, there is at present no legislation to prohibit release without further investigation of anyone acquitted of a crime on the grounds of 'automatism'." (p. 914)

McCALL SMITH, A. and C.M. Shapiro, "Sleep Disorders and the Criminal Law" in C.M. Shapiro and A. McCall Smith, eds, Forensic Aspects of Sleep, Chichester and Toronto: John Wiley and Sons, 1997, viii, 208 p., at pp. 29-64, ISBN:  0471969982; copy at CISTI, Canada Institute for Scientific and Technical Information/ ICIST, Institut canadien de l'information scientifique et technique, RA1170.S54 F715;

McCCOEY, Paula, "Officer guilty of shoplifting, given conditionl discharge: Claimed stress disorder after colleague's suicide", The Ottawa Citizen, Friday, 14 April 2006, p. F3; Ottawa trial of Constable Alec Moraru charged with theft (shoplifting); decision by Justice Stephen March, on 13 April; prosecutor Ian Scott and Michael Crystal, defence counsel; see other articles on this trial by Seymour, Andrew, infra;
 

McCORMICK, John W., "Psychiatry" in J. Freiman and Mark L. Brenblut, eds., The Litigator's Guide to Expert Witnesses, Aurora (Ontario): Canada Law Book, 1997,  xxvii, 438 p., Chapter 23 at pp. 375-405,  ISBN:  0888042345;

McLACHLIN, The Honourable Madame Justice B.M., "Crime and Women -- Feminine Equality and the Law", (1991) 25 University of British Columbia Law Review 1-22, see on PMS and automatism, pp. 17-18;
 

McSHERRY, Bernadette, "Case Commentary: R v. Stone", (2000) 7(2) Psychiatry, Psychology and Law 279–283; title noted in my research but article not consulted;
 

___________ "Criminal Responsability, 'Fleeting' States of Mental Impairment and the Power of Self-Control", (2004) 27(5) International Journal of Law and Psychiatry 445-457;
 

___________"Getting away with murder? Dissociative states and criminal responsibility", (Spring 1998) 21(2) International Journal of Law & Psychiatry 163-176; copy at the library of the Supreme Court of Canada;
 

___________Insanity, Automatism and Criminal Responsibility: Towards a New Defence of mental Impairment, Ph.D. Doctoral Thesis, Osgoode Hall Law School (York University), 1996, xiv, 337 p., thesis advisor: Professor Alan Young;
 

___________"Voluntariness, intention, and the defence of mental disorder: toward a rational approach", (2003) 21(5) Behavioral Sciences & the Law 581-599;
 

MEWETT, Alan W., 1930-, and Morris MANNING, Mewett & Manning on Criminal Law (previously published under the title: Criminal Law), 3rd ed, Toronto: Butterworths, 1994, lxiv, 959 p., ISBN: 0409903752 and 0433396458 (pbk.); Table of Contents...Chapter 14: Automatism...493 to 518; I. Introduction - Actus Reus; II. Automatism Defined; III. Burden of Proof: Evidentiary Standards; IV. Insane and Non-Insane Automatism and Drunkenness;
 

MEWETT, Alan W., 1930-, and Shaun Nakatsuru, An Introduction to the Criminal Process in Canada, 4th ed., Scarborough (Ontario): Carswell, Thomson Professional, 2000, xii, 255 p., see "Automatism" at pp. 208-210, ISBN: 0459276654;
 

MEWETT, Alan W., 1930-, "Commentary Given by Professor Alan W. Mewett, Faculty of Law, University of Toronto"  in  National Symposium on Medical Sciences and the Criminal Law, ed.,  Proceedings of the National Symposium on Medical Sciences and the Criminal Law, Convened by the Centre of Criminology, University of Toronto, Held in the Medical Sciences Building, University of Toronto, Monday, May 28th - Tuesday, May 20th, 1973,  Toronto : Centre of Criminology, University of Toronto, c1974,  xviii, 151 p., at pp. 129-131, ISBN: 0919584098; copy at the University of Ottawa (medical library);
 

___________"Murder and Intent: Self-defence and Provocation", (1984-85) 27 The Criminal Law Quarterly 433-449;

"The first issue [with provocation] is, therefore, whether the episode (whether defined as provocation within s. 215 [now 232] or not) was so traumatic as to induce a dissociative state.  If so, the accused cannot be convicted, though the possibility of an acquittal on account of insanity may deter one from raising such a defence where there is a good chance that the dissociative state will be classified as insane automatism.  If the provocation (again, whether within s. 215 or not) raises a reasonable doubt whether the accused had the intent required under s. 212(a)(i) or (ii) [now 229(a)(i) or (ii)], then the accused cannot be convicted of murder, only of manslaughter.  But since, in this case, the provocation does not have to meet the strict requirements of s. 215, this defence may be available even if s. 215 is not.  Finally, it is only if the Crown proves one of the intents required under s. 212 that the accused need raise the specific defence of provocation, but then he has to meet the strict requirements of s. 212 in order to avoid a conviction of murder." (p. 449)

MITCHELL, Teresa, "Did Dorothy shoot on purpose?", (August/September 1996) Law Now 7 ( 1 p. only); Calgary trial of Dorothy Houdrie found not criminally responsible by reason of mental disorder, use of the defence of automatism;
 

MOOD DISORDERS SOCIETY OF CANADA, "Brief to the House of Commons Standing Committee on Justice and Human Rights Concerning the Review of the Mental Disorders Provisions of the Criminal Code", dated 10 April 2002, 11 p.; document obtained by François Lareau, pursuant to a request under the Access to Information Act to the Department of Justice Canada, their file number: A-2002-0084/mfa, their reply dated 29 July 2002, documents 000432-000442; see also the testimony on 10 April 2002 (E /F), in Panel II, from the Mood Disorders Society of Canada: Phil Upshall, President; William P. Ashdown, Vice-President, English / Français; the brief is also available in French  / le mémoire est aussi disponible en français;

"We believe that that there is no purpose in trying to codify or define a defense [of automatism] not recognized by the mental health service community or by the DSM-IV" (p. 6 of the brief)

MORISSETTE, Louis, Institut Philippe Pinel de Montréal, rédaction du mémoire/Brief written by Dr. Louis Morisette, "A Brief Submitted to the Standing Committee on Justice and Human Rights [Review of the Mental Disorder Provisions of the Criminal Code]", 21 January 2002, 14 p.; document obtained by François Lareau, pursuant to a request under the Access to Information Act to the Department of Justice Canada, their file number: A-2002-0084/mfa, their reply dated 29 July 2002, documents 000234-000247; also available in French / aussi disponible en français;

"Accoding to the clinicians at the Institut Pinel, there is no reason why the Canadian Criminal Code should provide any further definition of the question of automatism.  The recent case law (the Supreme Court decision in Stone, 1999) cleaely defines what automatism is from a legal viewpoint and what the consequences of automatism (with or without insanity) should be.  In the clinicians' view, the question of automatism is one that rarely arises and, when it does, it must be decided on a case-by-case basis with the support of the available case law.

Parliament reacted effectively to the decision of the Supreme Court in Daviault with the result that the question of automatism as a result of intoxication is now not used very much and, in any event, the decision in Stone has again clarified what automatism is and how a distinction should be made between automatism linked to a mental illness and automatism that is not so linked.

We are aware  that some decisions (especially those involving sleep-walking) have merely caused confusion and a certain level of insecurity in the public but it must be realized that the decision on sleep-walking was rendered following a trial at which five experts testified for the defence and no experts testified for the Crown.  A decision of the Court of Quebec in 2000 cast a rather different light on this issue (sleep-walking is viewed as a form of automatism linked to mental disorder).

The clinicians at the Institut Philippe Pinel de Montréal feel that if all the parties involved (lawyers, judges and experts) do their job conscientiously, the question of automatism does not cause any problems and even if the verdict of automatism without mental disorder results in a complete acquittal, this verdict is not very common and in the experience of the clinicians at the Institute, an accused who is acquitted in such a case does not pose a danger to society and does not require any particular supervision.  Accused who require particular supervision and who are acquitted by reason of automatism receive their acquittal in the great majority of cases following a verdict of automatism with mental disorder and they are accordingly subject to the supervision of a Review Committee." (pp. 4-5)

___________testimony before Parliament, House of Commons, Standing Committee on Justice and Human Rights, Review of the Mental Disorder Provisions of the Criminal Code also published in French  / aussi publié en français:  témoignage devant, Parlement, Chambre des communes, Comité permanent de la justice et des droits de la personne, Examen des dispositions du Code criminel relatives aux troubles mentaux :

• 20 March 2002 (E/F): Dr. Louis Morissette, psychiatrist, Institut Philippe Pinel de Montréal, Association des médecins psychiatres du Quebec:  English /  Français

MYERS, Frederick L.(or Fred. L.), 1959-,  Making sense of nonsense : a rationalization and a proposal for Canadian legislative reform of the criminal law defences of  automatism, insanity and drunkenness, LL.M. thesis , Harvard University Law School, 19 March 1985, ii, 69, 14 leaves; copy at Harvard University and Univeristy of New Brunswick; thesis not consulted; no copy at the National Library, Ottawa;
 

NOVA SCOTIA LEGAL AID, Malcolm S. Jeffcock, Lawyer, testimony before Parliament, House of Commons, Standing Committee on Justice and Human Rights, Review of the Mental Disorder Provisions of the Criminal Code also published in French  / aussi publié en français: témoignage devant, Parlement, Chambre des communes, Comité permanent de la justice et des droits de la personne, Examen des dispositions du Code criminel relatives aux troubles mentaux :

• 16 April 2002 (E/F): Panel II: From the Nova Scotia Legal Aid, Malcolm S. Jeffcock, Lawyer, English / Français

___________Malcolm S. Jeffcock, Lawyer, Letter "Re : Review of the Mental Disorder Provisions of the Criminal Code" to the Library of Parliament for the Standing Committee on Justice and Human Rights, Review of the Mental Disorder Provisions of the Criminal Code,  31 December 2001,  9 p.; document obtained by François Lareau, pursuant to a request under the Access to Information Act to the Department of Justice Canada, their file number: A-2002-0084/mfa, their reply dated 29 July 2002, documents 000281-000289; also available in French / aussi disponible en français;

"Should Automatism be codified?  Should automatism result in acquittal?

I do not believe that automatism should be codified.  Further given the unique characteristics of the circumstances giving rise to the defense of automatism I do not believe it would be appropriate that the court have any power to impose 'supervisory orders' in relation to cases where acquittals have resulted any more than it should be considered in relation to persons acquitted as a result of the defense of drunkenness.  Each circumstance has resulted in the accused being unable to form the necessary mens rea why then should their liberty be impacted upon?

While mentally disordered accused who are subject to section 16 typically have formed the mens rea of the offence they are not able to appreciate the nature and quality of their actions or that the actions are wrong.  The capacity to 'form the intent' is present and has been acted upon.  It is the risk associated with being able to form the intent and act upon it while not appreciating the nature and quality of the aact, or that it is wrong, that permits parliament to intercede with legislation impacting upon the liberty of persons who have not been convicted of an offence." (p. 4)

NOVA SCOTIA REVIEW BOARD, William J. Grant, Chairperson, Letter to the Standing Committee on Justice and Human Rights, "Revisions to Section 672 of the Criminal Code of Canada", 9 January 2002, 4 p.; document obtained by François Lareau, pursuant to a request under the Access to Information Act to the Department of Justice Canada, their file number: A-2002-0084/mfa, their reply dated 29 July 2002, documents 000290-000293; also available in French / aussi disponible en français;
 

O'BRIEN, Noel C., "Automatism -- Legitimate Defence or Legalized Irresponsibility: R. v. Joudrie",  in Edward L. Greenspan, ed., Counsel for the Defence: The Bernard Cohn Memorial Lectures in Criminal Law, Toronto: Irwin Law, 2005, xix, 267 p., at pp. 109-138, ISBN: 1552211029; copy at the University of Ottawa, FTX KE 8809.5 .C69 2005;
 

OGLOFF, James R.P., "A Legal Perspective on the Concept of 'Impulsivity'" in Christopher D. Webster and Margaret Jackson, eds., Impulsivity: Theory Assessment, and Treatment, New York: Guilford Press, 1987, xvii, 462 p. at pp. 63-81,ISBN: 1572302259;

"Ontario: 'Sexsommania' defence upheld by court", The Ottawa Citizen, Friday, 8 February 2008; case of Jan Luedecke, Ontario Court of Appeal; Add http://www.nationalpost.com/news/story.html?id=292924; about non-insane automatism, see http://www.nationalpost.com/news/story.html?id=292924 (accessed on 8 February 2008);
 

PACIOCCO, David M., "Death by Stone -ing: The Demise of the Defence of Simple Automatism", (1999) 26 Criminal Reports (5th) 273-285;
 

PARENT, Hugues, 1970-, "L'automatisme en droit pénal: développements récents", dans sous la direction du Service de la formation permanente du Barreau du Québec, Développements récents en droit criminel, Cowansville (Québec): Éditions Yvon Blais, 2004, xiii, 263 p., aux pp. 1-73 (Collection; Service de la formation permanente du Barreau du Québec; volume 211), ISBN: 289451778;  note: colloque, "Développements récents en droit criminel", Montréal, 15 octobre 2004; copie à la Cour suprême du Canada, KF 9220 ZA2 D48 2004;
 

___________Traité de droit criminel, Tome 1. L'acte volontaire et les  moyens de défense, Montréal : Éditions Thémis, 2003, xxviii, 587 p., voir "l'automatisme" aux pp. 153-215, ISBN: 2894001703;

___________Traité de droit criminel, Tome Premier:  L'imputabilité, 2e édition, Montréal : Éditions Thémis, 2005, xxxii, 1023 p., voir le Chapitre 3, "L'automatisme" aux pp. 187-286, ISBN: 2894001703; copie à la Bibliothèque de la Cour suprême du Canada, KF 9220 ZA2 P39 2005, t. 1, c. 01;   
 

PENNEY, Steven, "A Concern for Innocence: Justice La Forest and the Criminal Law" in Rebecca Johnson, John P. McEvoy with Thomas Kuttner and H. Wade MacLauchlan, eds., Gérard V. La Forest at the Supreme Court of Canada, 1985-1997, Winnipeg: Canadian Legal Historic Project, Faculty of Law, University of Manitoba, 2000, xix, 570 p., at pp. 217-240, see "Moral Responsibility" at pp. 222-230 and in particular on automatism, pp. 229-230, ISBN: 0968456014;

PHOENIX, Holly, "Automatism: A Fading Defence",  (2010)  56(3) The Criminal Law Quarterly 328;  
 

POMERANCE, Renee, "Carved in stone?: the new approach to the defence of automatism" in National criminal law program (2001 : Charlottetown, P.E.I.), ed., National criminal law program / The Federation of Law Societies of Canada, Charlottetown : Federation of Law Societies, 2001, in vol. 2 of 2; copy at Department of Justice Canada, Prairies Region, Edmonton Office, Law Library, call number: KF 9655 N36 2001; title noted but not consulted yet;
 

POPPLE, A.E., "Unconscious acts", (1960) 33 Criminal Reports 120-125;
 

PORTER, Stephen, Angela R. Birt, John C. Yuille, Hugues F. Hervé, "Memory for Murder: A Psychological Perspective on Dissociative Amnesia in Legal Contexts", (2001) 24 International Journal of Law and Psychiatry 23-42;
 

POWELL, Clay M. and David Watt, Commentators, "Automatism - dissociative state caused by severe factors including brain damage.  Defence of non-insane automatism not available.  Revelle v. The Queen, S.C.C. May 28, 1981"  in Criminal Law Audio Series,  Toronto: Legal Audio Services of Canada Ltd, 1981,  audio cassette, May 1981, side one, number two, 4 minutes;
 

"Practice Note: --‘Amnesia', 'Unconsciousness', ‘Lack of intent'", (1962) 38 Criminal Reports 53 (1 paragraph only);
 

"Practice Note: -- Unconscious acts", (1960) 33 Criminal Reports 107 (one paragraph only);
 

"Practice Note: -- Unconscious acts", (1966-670) 49 Criminal Reports 142-143;
 

QUAN, Douglas, "Woman who shot sleeping husband goes free", The Ottawa Citizen, Sunday March 4, 2001, pp. A1 and A2; newspaper article anout Rita Graveline, Luskville, Quebec, acquitted on 3 March 2001 in Hull, Quebec, of second degree murder charge; she had shot her sleeping husband; the defences for the acquittal were first -  loss of consciousness or dissociative amnesia (non insane automatism) or second - self-defence; reason for acquittal unknown as in Canada, the jury does not reveal the reasons for the acquittal;

RDI Justice (service de nouvelles de 24 heures de Radio-Canada), une émission télévisée sur un procès de meurtre à Alma (Québec) avec une défense d'automatisme; l'accusé Boivin est acquitté; appel de la Couronne aux dernières nouvelles; l'avocat de la défense est monsieur Goudreau, un criminaliste; l'avocat de la Couronne, une femme (nom inconnue), le psychiatre de la Couronne est Rock-Hugo Bouchard; l'avocat de la défense est aussi interviewé; les faits: Boivin est agressé chez lui pendant qu'il joue de la guitare; il sort de son automatisme et le couteau est dans la poitrine de son agresseur; il ne se souvient de rien; émission qui passe en reprise le 30 juin 2005; excellent documentaire;
 

ROACH, Kent, Criminal Law, 2nd ed., Toronto (Ontario): Irwin Law, 2000, xx, 370 p., on automatism, see in particular, pp. 230-239 (series; Essentials of Canadian Law), ISBN: 1552210413; there ìs now is a 3rd ed.;

SAINT-GERMAIN, Christian, "L'imputabilité en droit criminel canadien des comportements induits par les antidépresseurs", (2007) 38 RDUS  167-214; disponible à http://www.usherbrooke.ca/droit/fileadmin/sites/droit/documents/RDUS/volume_38/38-1-st-germain.pdf (vériifié le 27 août 2009);

SARANTIS, Michael Aristotle, 1970-, Central issues in automatism, Thesis (M.A.), University of Calgary, Department of Philosophy, 2002, vii, 110 leaves; copy on two microfiches at the National Library of Canada, Ottawa; 

"[Abstract] This thesis examines the issue of automatism as it appears in criminal law, and in various legal and theoretical texts. Automatism, as a criminal defence, and as a theoretical concept, is met with a considerable amount of debate, and its application in  law reveals a number of areas of inconsistency and complexity. This thesis focuses on three main areas within the automatism debate: the role of automatism as it applies to the burden of proof in criminal law; the subset of automatism known as psychological blow automatism; and various attempts to provide a theoretical underpinning for automatism. The purpose here is to give a detailed and coherent analysis of these issues, conduct an assessment of various proposals for resolving certain inconsistencies and areas of contention in automatism, and contribute some original proposals regarding current and future thinking about automatism." (source: AMICUS catalogue, National Library of Canada)

SCHERTZER, Gerhard, "In Court - R. v. Stone - Mental and Non-Mental Disorder Automatism - Sentence - Manslaughter - Criminal Code, R.S.C. 1985, c. C-46, ss. 2, 16, 232, 687, 718.2 - Supreme Court of Canada", (2000) 15(2)  Justice Report 23-25; also published in French / aussi publié en français:
"Affaires juridiques - R. v. Stone - Automatisme avec ou sans aliénation mentale - Sentence - Homicide involontaire coupable - Code criminel, S.C.R. 1985, ch. C-46, art. 2, 16, 232, 687, 718.2 - Cour suprême du Canada", (2000) 15(2) Actualités-Justice 25-27;
 

SEMRAU, Dr. Stanley, and Judy Gale, Murderous minds on trial: terrible tales from a forensic psychiatrist's case book, Toronto: Dundurn Press, 2002, 323 p., see "Section III - Automatism and Provocation Defences" at pp. 171-226, ISBN: 1550023616; copy at Ottawa University, MRT General: HV 6535 .C3 S45 2002;
 

SEMRAU, Dr. Stanley, "Review of the Mental Disorder Provisions of the Criminal Code of Canada - Submission by Dr. Stanley Semrau, MD FRCPC to the Standing Committee on Justice and Human Rights", 10 April 2002, 14 p., see in particular "The Non-Insane Automatism Defense" at p. 8; important contribution;

"The non-insane automatism defense is unquestionably the most indefensible of psychiatric concepts in current Canadian law.  The Canadian Psychiatric Association is on record with the SCJHR as pointing out the almost complete conceptual bankruptcy of this defense, which is clearly based on an obselete and discredited concept of the operation of the human mind (refer to SCJHR by Drs. Ladha and MacKay of the Canadian Psychiatric Association on Forensic Psychiatry -- November 1992). ..." (p. 8)

"Soldier 'voluntarily' drove SUV [Sports Utility Vehicule] into building, doctor testifies", The Ottawa Citizen, 11 December 2002, p. A-6; (trial of Cpl. Christian McEachern, Edmonton, doctor testifies; automaton, post traumatic stress disorder; verdict to be rendered in January 2003); see also on this case about the judgment, Thorne, Duncan and Darcy Henton, infra;
 

STUART, Don, 1943-, "A Case for A General Part" in Don Stuart, 1943-,  R.J. Delisle and Allan Manson, eds., Towards a Clear and Just Criminal Law: A Criminal Reports Forum, Scarborough (Ontario): Carswell, Thomson Professional Publishing, 1999, v, 574 p., at pp. 95-145, see "Involuntary Conduct" at pp. 108-109, ISBN: 045927077X;
 

___________Canadian Criminal Law: A Treatise, 4th ed., Scarborough:  Carswell, 2001, liv, 733 p., on voluntariness and automatism, see pp. 103-132, ISBN: 0459261703 and 0459261118 (pbk.);
 

___________"Fontaine: Lowering the Bar for Evidentiary Burdens for Defences to be Put to Juries", (2004) 18(2) Criminal Reports (6th) 238-240;
 

Supreme Court of Canada Decisions/ Arrêts de la Cour suprême du Canada

• Hotte c. R., 2005 QCCA 625 (IIJCan); available at http://www.canlii.org/qc/jug/qcca/2005/2005qcca625.html (accessed on 25 March 2006); appeal dismissed by the Supreme Court of Canada, 17 March 2006, available at http://www.lexum.umontreal.ca/csc-scc/cgi-bin/disp.pl/en/rec/html/2006scc008.wpd.html?query=%22hotte%22&langue=en&selection=&database=en/jug&method=all&retour=/csc-scc/cgi-bin/srch.pl?language=en~~method=all~~database=en%2Fjug~~query=hotte~~x=0~~y=0
 
•   R. v. Daviault, [1994] 3 S.C.R. 63-132;

•  R. v. Fontaine, [2004] 1 S.C.R. 702;

• R. c Graveline, 2006 S.C.C. 16, available at http://scc.lexum.umontreal.ca/en/2006/2006scc16/2006scc16.html (accessed on 29 April 2006), on appeal from the Quebec Court of Appeal, 2005 QCCA 574 (CanLII), available at http://www.canlii.org/qc/cas/qcca/2005/2005qcca574.html (accessed on 25 March 2005);

•  R. v. Parent, [2001] 1 S.C.R. 761

"Anger can play a role in reducing murder to manslaughter in connection with the defence of provocation. Anger is not a stand-alone defence. It may form part of the defence of provocation when all the requirements of that defence are met: (1) a wrongful act or insult that would have caused an ordinary person to be deprived of his or her self-control; (2) which is sudden and unexpected; (3) which in fact caused the accused to act in anger; (4) before having recovered his or her normal control: R. v. Thibert, [1996] 1 S.C.R. 37. Again, anger conceivably could, in extreme circumstances, cause someone to enter a state of automatism in which that person does not know what he or she is doing, thus negating the voluntary component of the actus reus: R. v. Stone, [1999] 2 S.C.R. 290. However, the accused did not assert this defence. In any event, the defence if successful would result in acquittal, not reduction to manslaughter." (Chief Justice McLachlin delivering the judgment of the Court)

•  R. v. Parks, [1992] 2 S.C.R. 871;

• R. v. Stone, [1999] 2 S.C.R. 290-415;

• Rabey v. The Queen, [1980] 2 S.C.R. 513;
 

THORNE, Duncan and Darcy Henton, "Judge convicts stressed-out soldier who stormed garrison: 32-year-old responsible for his actions, despite suffering from post-traumatic stress disorder", The Ottawa Citizen, 4 February 2003, p. A-4; trial of former Corporal Christian McEachern, judgment of Justice Doreen Sulyma, Court of Queen's bench, Edmonton, Alberta, 3 February 2003; see also on this case, "Soldier 'voluntarily' drove SUV [Sports Utility Vehicule] into building, doctor testifies", supra;

TIBBETS, Janice, "Top court upholds woman's acquittal for killing husband while in a trance.  Luskville man was shot while sleeping in 1999", The Ottawa Citizen, Friday, 28 April 2006, pp. A1 and A2; the title at p. 2 is "Trance: Few reasons for decision"; Supreme Court of Canada decision on 27 April 2006, in the case of Rita Graveline, on appeal from the Quebec C.A.;
 

TOLLEFSON, Edwin A. (Edwin Archer), 1933-, and Bernard Starkman, Mental Disorder in Criminal Proceedings, Carswell, Thomson Professional Publishing, 1993, xx, 223 p., ISBN: 0459551981; Mr. Tollefson was in charge of the Criminal Law Review Section at the Department of Justice Canada and also in charge of the mental disorder project; Mr. Starkman was also a member of the Criminal Law Review section; Research Note: "Table of Contents: Introduction...v; Table of Cases...xvii; Chapter 1: The Mental Disorder Amendments - Barckground...1; Chapter 2: Mental Disorder and Capacity...13; Chapter 3: Automatism...49; Chapter 4: Psychiatric Assessments...63; Chapter 5: Treatment and Constitutional Power to Treat...77; Chapter 6: Verdicts and Dispositions...83; Chapter 7: Review Boards...93; Chapter 8: Disposition Hearings...97; Chapter 9: Review of Dispositions...111; Chapter 10: Capping and Dangerous Mentally Disordered Accused...115; Chapter 11: Dual Status Offenders...125; Chapter 12: Appeals...129; Chapter 13: Enforcement of Orders and Regulation-Making Powers...139; Chapter 14: Hospital Orders...143; Chapter 15: Transitional; Provisions 153; Appendix An Act to amend the Criminal Codee (mental disorder) and to amend the National Defence Act and the Young Offenders Act in consequence thereof, S.C. 1991, C. 43]...159; Appendix B [Daniel M`Naghten's Case]...205; Appendix C [Relevant Excerpts from the White Paper entitled 'Proposals to amend the Criminal Code (general principles)]'"...213; Appendix D [Criminal Code Review Boards]...218"); very important contribution to the topic;
 

TOLLEFSON, Edwin A. (Edwin Archer), 1933-, "Epilogue: Reflections on the Criminal Code Amendments"  in Derek. Eaves,  James R.P. (James Robert Powell) Ogloff and Ronald Roesch, eds., Mental disorders and the Criminal Code : legal background and contemporary perspectives, Burnaby, B.C. : Mental Health, Law, and Policy Institute, Simon Fraser University, c2000, xxxv, 259 p., at pp. 241-259, on automatism, see p. 259; ISBN:  086491220X; note: Published in cooperation with the British Columbia Forensic Psychiatric Commission; copy at the National Library, Ottawa, KE 8841 Z85 M45 2000 c. 2;

"As there is a substantial degree of similarity between the mental state induced by extreme intoxication, automatism and some forms of mental disorder, it would seem appropriate to combine these three topics in a single research and consultation project with a view to producing an integrated legislative response.  A great deal of work has already been done by the Federal Department of Justice on the relationship between automatism and mental disorder, and legislative proposals in relation to automatism were published in June, 1993 in the White Paper on the General Part of the Criminal Code.  It is time that that work was brought to fruition." (p. 259)

VERDUN-JONES, Simon N. (Simon Nicholas), 1947-, Criminal Law in Canada: Cases, Questions & The Code, 4th ed., Thomson/Nelson, 2006,  xvi, 332 p., see Chapter 8, "Mental Impairment and Criminal Responsibility: The Defences of 'Not Criminally Responsible on Account of Mental Disorder' (NCRMD) and Automatism" at pp. 180-211, ISBN: 0176407170; copy at the Library of Parliament, Br.B  KE 8809 V47 2007;;
 

___________"The Evolution of the Defences of Insanity and Automatism in Canada from 1843-1979: A Saga of Judicial Reluctance to Sever the Umbilical Chord to the Mother Country?", (1979-80) 14 University of British Columbia Law Review 1-73;
 

___________"The Supreme Court of Canada  Examines Sleep-Walking Defence: R. v. Parks" (1993) 4 International Bulletin of Law and Mental Health 36; title of article noted in my research but article not consulted; no copy of this volume in the Ottawa area libraries; copy at McGill University, Montreal; copie /galement à l'Université de Montréal;
 

VIENNEAU, David, "Drunkenness ruling said based on error: intoxication doesn't cause ‘automatism' researcher says", The Toronto Star, Wednesday 12 April 1995, p. 2;  the researcher in question is Professor Harold Kalant, see Kalant, supra, and the case is  R. v. Daviault, [1994] 3 S.C.R. 63-132;

"Kalant said the judges wrongly compared automatism to 'blacking out, and it's not.  It's totally different.  In a blackout you can be behaving quite consciously, knowing the consequences of what you are doing, but the next day you can't remember it.'"

WATT, David, 1948-, Ontario Specimen Jury Instructions (Criminal), Toronto: Thomson/Carswell,  [2003], xiii, 1101 p., see "Automatism"  at pp. 967-970, ISBN: 0459254928; copy at the Library of the Supreme Court of Canada, Ottawa, KF 9682 W38 2003 c. 01;

__________Ontario specimen jury instructions (criminal)  2005 supplement, Toronto : Thomson Carswell, 2005, xiv, 246 p., and see "Final 64 Automatism", at pp. 203-207, ISBN: 0459242628; copy at the Library of the Supreme Court of Canada, KF9682 W38 2003 Suppl. c. 01;

__________"Voluntariness and the doctrine of automatism" in National Criminal Law Program: Substantive Criminal Law (1993: Montreal), [ed.],  National Criminal Law Program, The Federation of Law Societies of Canada, Montreal (PQ): Federation of Law Societies, 1993, 2 volumes; information from  http://gate.library.ualberta.ca/ (The GATE:  NEOS Libraries' Catalogue) as seen on 11 November 2000; document not consulted;
 

WEINSTEIN, Seth, Supreme Court Watch, "The Appellate Afterlife and Automaton's Evidentiary Obligations", (2004) 25(3) For the Defence -- Criminal Lawyers' Association Newsletter 3-42; deals in part with the Supreme Court of Canada decision of Fontaine;
 

WILKINSON, Joseph S., "The Possibility of Alcoholic Automatism: Some Empirical Evidence", (1997) 2 Canadian Criminal Law Review 217-238;

"This paper considers the defence of alcoholic automatism recognized in R. v. Daviault, subsequently abolished by Bill C-72: An Act to Amend the Criminal Code of Canada (self-induced intoxication), which created section 33.1 of the Criminal Code.  The paper primarily focuses on the scientific data concerning the effects of alcohol on the mind and body.  It argues that the available scientific information suggests that alcohol, on its own, is incapable of producing an automatic state in an accused.   It also suggests that the factors of amnesia, irrational behavior, and blood alcohol concentration, which courts and experts rely as evidence of automatism, are unreliable, or mistaken indicators of such a condition.  The paper maintains that this evidence might support an argument by the Crown that section 33.1 does not infringe sections 7 and 11(d) of the Canadian Charter of Rights and Freedoms.  Finally, the author explains that a consideration of the effects of alcohol alone cannot dispose of the constitutional question.  The effects of alcohol in combination with other drugs must also be investigated. Moreover, the vagueness of the concept of consciousness pushes the issue beyond the realm of science, and saddles the courts with a normative question about what level of awareness is required to warrant a finding of criminal culpability." (p. 217)

YEO, Stanley M.H. (Stanley Meng Heong), "Power of Self-Control in Provocation and Automatism", (1992) 14 Sydney Law Review 3-22; contents: A Preliminary Theoretical Discourse...4; Power of Self-Control in Provocation...5; Criticisms of the distinction...6; Age affecting power of self-control...9; Ethnicity affecting the power of self-control...11; Power of Self-Control in Psychological Blow Automatism...14; Determining whether psychological blow automatism is insanity...16; Bases for a Common Objective Test for Provocation and Automatism...20; Conclusion...22; discusses the provocation case of
R. v. Hill, [1986] 1 S.C.R. 313 and the automatism case of Rabey v. The Queen, (1980) 54 C.C.C. (2d) 1 (S.C.C.);
 

___________"Recent Australian Pronoucements on the Ordinary Person Test in Provocation and Automatism", (1990-91) 33 The Criminal Law Quarterly 280-297;

"This article presents the Australian High Cour's subscription [R. v. Stingel (1990) 65 A.L.J.R. 141; R. v. Falconer (1990) 65 A.L.J.R. 20] to the distinction between personal characteristics affecting the power of self-control of the ordinary person and those characteristics affecting the gravity of the provocation or psychological blow.  It argues that the distinction is a crucial one which the majority in Hill seems to have drastically downplayed, or even entirely lost sight of.  The submission will be made that a proper acknowledgement of the distinction will require a trial judge to instruct the jury on the personal characteristics it may ascribe to the ordinary person under the law of provocation.  Further, it will be contended that the Australian High Court's application of this distinction to psychological-blow automatism has, besides achieving consistency in the law, the benefit of ensuring that provocation continues to play a predominant role in cases of killings while under loss of self-control." (pp. 280-281)

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