R v Morris, 2024 SKCA 36
[88] In R v Cinous, 2002 SCC 29, [2002] 2 SCR 3, the majority of the Supreme Court clarified the test for determining when a defence should be put to a jury. In summary terms, before leaving a defence with a jury, it is the trial judge’s duty to determine whether “the evidence put forward is such that, if believed, a reasonable jury properly charged could have acquitted” (at paras 60 and 156, quoting R v Osolin, 1993 CanLII 54 (SCC), [1993] 4 SCR 595 (WL) at para 66). Contained within this test is the principle that the trial judge does not “make determinations about the credibility of witnesses, weigh the evidence, make findings of fact, or draw determinate factual inferences” (Cinous at para 54). The evidence supporting the defence is assumed to be true. There is only “a single air of reality test [that] applies to all defences” (at para 57). Importantly, the air of reality test “imposes a burden on the accused that is merely evidential, rather than persuasive” (at para 52).
[89] McLachlin C.J. and Bastarache J. for the majority in Cinous held that, if “there is direct evidence as to every element of the defence, whether or not it is adduced by the accused, the trial judge must put the defence to the jury. By definition, the only conclusion that needs to be reached in such a case is whether the evidence is true” (at para 88). However, different considerations prevail “where the defence includes an element that cannot be established by direct evidence” (at para 89).
[90] Later in these reasons, the importance of the distinction between direct and circumstantial evidence will become relevant and will be explored more fully. At this point, it is necessary to consider the burden on the accused when a defence of automatism is alleged and what that means for the air of reality test.
[91] In R v Daviault, 1994 CanLII 61 (SCC), [1994] 3 SCR 63 (WL), Cory J., for the majority, held that extreme intoxication akin to automatism is a defence to all crimes, including “even the minimal intent required of a general intent offence” (at para 59). The Supreme Court also held that, unlike other defences, the accused bears the legal burden of establishing extreme intoxication akin to automatism on a balance of probabilities: for example, see paragraphs 63, 64 and 67. Because of this legal burden, it is up to the accused to lead (a) “evidence as to the amount of alcohol consumed and its effect” on them, and (b) expert evidence to “confirm that [they were] probably in a state akin to automatism or insanity as a result of [their] drinking” (at para 63).
[92] In Stone, Bastarache J. extended the Daviault principle regarding the legal burden on the accused to demonstrate involuntariness on a balance of probabilities to all automatism defences, not just claims of extreme intoxication. He also recognized a presumption of voluntariness and a reversal of the burden of proof in all such cases:
[180] … The law presumes that people act voluntarily in order to avoid placing the onerous burden of proving voluntariness beyond a reasonable doubt on the Crown. Like extreme drunkenness akin to automatism, genuine cases of automatism will be extremely rare. However, because automatism is easily feigned and all knowledge of its occurrence rests with the accused, putting a legal burden on the accused to prove involuntariness on a balance of probabilities is necessary to further the objective behind the presumption of voluntariness.
[69] Justice Kasirer, writing in Brown, confirmed the presumption of voluntariness and the legal burden on the accused to prove involuntariness “on a balance of probabilities” (at para 56).
[93] According to Daviault, Stone and Brown, it is for the trier of fact to decide if the accused has adduced sufficient evidence to discharge the legal burden of persuasion on a balance of probabilities. However, according to Cinous, it is for the judge to determine whether there is an air of reality to any defence and that remains the case when the accused is tried by a jury. This bifurcation of roles between judge and jury gives rise to the question of whether the content of the air of reality test changes when automatism is alleged. In other words, does the trial judge weigh or evaluate the evidence to determine the likelihood of the accused being able to persuade the jury that their actions were involuntary, on a balance of probabilities?
[94] This issue was raised and resolved in R v Fontaine, 2004 SCC 27, [2004] 1 SCR 702. The trial judge in Fontaine had held, on the basis of dicta in Stone, that it was the judge’s obligation, as part of the air of reality test, to determine whether the accused would be able to surmount the burden to demonstrate involuntariness on a balance of probabilities. The Québec Court of Appeal held that this was an error of law and ordered a new trial. The Supreme Court agreed and dismissed the appeal from that decision. Justice Fish, for the Supreme Court, wrote as follows:
[54] In the case of “reverse onus” defences, such as mental disorder automatism, it is the accused who bears both the persuasive and the evidential burdens. Here, the persuasive burden is discharged by evidence on the balance of probabilities, a lesser standard than proof beyond a reasonable doubt. Reverse onus defences will therefore go to the jury where there is any evidence upon which a properly instructed jury, acting judicially, could reasonably conclude that the defence has been established in accordance with this lesser standard.
…
[92] In this regard, I repeat once more, the applicable test is whether there was any evidence in the record upon which the jury, properly instructed and acting judicially, could reasonably conclude that the defence of automatism by reason of mental disorder had been made out. In my view, the Court of Appeal did not err in finding that the respondent, through his own evidence and that of [another witness], had discharged his evidential burden on that issue.
(Emphasis added)
[95] Justice Fish also made it clear that it would be an error for a trial judge to assess “the likely success of the defence” or to “require the judge to weigh the evidence in order to determine whether it establishes, on the balance of probabilities, that the accused perpetrated the criminal act charged in a state of automatism” (at para 83). The test is that fixed by Fish J.: an air of reality exists where there is any evidence upon which a properly instructed jury, acting judicially, could reasonably conclude that the defence has been established on a balance of probabilities.
[96] With that by way of background, the issue to be determined is whether the evidence regarding automatism, in this case, was such that, if believed, a reasonable jury, properly charged, could reasonably have concluded that the defence had been established on a balance of probabilities. If the evidence met that standard, it was an error of law for the trial judge not to have charged the jury on automatism: “While some instructions are mandatory and their omission will constitute an error of law, whether other instructions are needed will be contingent on the circumstances of the case. Whenever an instruction is required, the judge needs to provide that instruction with sufficient detail for the jury to undertake its task” (Abdullahi at para 72).
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