R v Morris, 2024 SKCA 36
[45] In R v Stone, 1999 CanLII 688 (SCC), [1999] 2 SCR 290, Bastarache J., speaking for the majority, defined automatism as “a state of impaired consciousness, rather than unconsciousness, in which an individual, though capable of action, has no voluntary control over that action” (at para 156). Later, he observed that “lack of voluntariness, rather than consciousness, is the key legal element of automatism” (at para 224).
[46] In Stone, the majority approved the terminology of mental disorder automatism and non-mental disorder automatism rather than insane automatism and non-insane automatism, with the former better reflecting the 1992 amendments to s. 16 of the Criminal Code, which “removed all references to the term ‘insanity’ from the Code” (at para 55): similarly, see paragraph 161. The majority also approved a two-step process, which must be followed in all cases when dealing with claims of automatism:
(a) the trial judge must first determine whether the accused has satisfied the evidentiary burden for the defence of automatism; and
(b) if yes, the “trial judge must next determine whether the condition alleged by the accused is mental disorder or non-mental disorder automatism” (at para 164) – see also, paragraphs 165, 167 and 193 to 218.
[47] In this appeal, counsel has not raised any question with respect to the trial judge’s approach to mental disorder automatism. They have limited their submissions to the instructions to the jury regarding automatism arising from extreme intoxication. As such, the balance of my reasons will be confined to that defence.
[48] Justice Kasirer, writing for the majority in Brown, further defined the nature of and basis for the defence of automatism:
[46] The defence of automatism denies the element of voluntariness and therefore negates the actus reus of the offence (R. v. Chaulk, 1990 CanLII 34 (SCC), [1990] 3 S.C.R. 1303, at p. 1321; R. v. Parks, 1992 CanLII 78 (SCC), [1992] 2 S.C.R. 871, at p. 896). Involuntary conduct is understood to be genuinely exculpatory because, while the prohibited act was harmful, the accused lacks the capacity to answer for what they did (J. Gardner, Offences and Defences: Selected Essays in the Philosophy of Criminal Law (2007), at p. 142). A physically involuntary act, however wrongful in outward appearance, is not a guilty act that can be imputed to an accused.
[47] Automatism is reflected in involuntary movements that may be associated with heart attacks, seizures or “external” shock, or conditions such as sleepwalking or delirium, where the body moves but there is no link between mind and body (Bratty v. Attorney-General for Northern Ireland, [1963] A.C. 386 (H.L.), at p. 409; Rabey [1980 CanLII 44 (SCC), [1980] 2 SCR 513], at p. 523). Physical voluntariness is a principle of fundamental justice and a requirement of all true criminal offences, central to the criminal law’s desire to avoid convicting the morally innocent (Daviault, at p. 74; R. v. Ruzic, 2001 SCC 24, [2001] 1 S.C.R. 687, at paras. 46–47; R. v. Bouchard-Lebrun, 2011 SCC 58, [2011] 3 S.C.R. 575, at para. 45). Absent a willed movement of the body, the Crown cannot prove the actus reus beyond a reasonable doubt (R. v. Théroux, 1993 CanLII 134 (SCC), [1993] 2 S.C.R. 5, at pp. 17–18). This is distinguished from moral involuntariness, which describes scenarios where the accused retains conscious control over their body but has no realistic choice but to commit a guilty act (Ruzic, at para. 44).
[48] In addition, an automaton cannot form the mens rea, or guilty mind, if their actions are involuntary. Where an accused has no conscious awareness of their movements, they necessarily cannot intend their involuntary acts. Imposing criminal liability in the absence of proof of fault also offends the principles of fundamental justice (Motor Vehicle Reference [1985 CanLII 81 (SCC), [1985] 2 SCR 486 ], at pp. 513–15).
[49] Justice Kasirer in Brown described extreme intoxication akin to automatism as being “the highest form of intoxication – that which results in a person losing voluntary control of their actions” (at para 45). He observed that extreme intoxication akin to automatism is “an exigent defence requiring the accused to show that their consciousness was so impaired as to deprive them of all willed control over their actions” (at para 50). He contrasted this state with waking up with no memory of committing a crime, which would not “prove that an individual was acting involuntarily” (at para 50).
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