R.+v.+Stone

// R. v. Stone // 1. Did the Court of Appeal err in upholding the decision of the learned trial judge to refuse to leave the "defence" of non-insane automatism to the jury? // Dr. Janke: // · A dissociative episode results from a psychological blow and involves an individual’s thinking component to be split from his physical body · The appellant’s account of the events is consistent with a dissociative episode: the extreme words of his wife before the attack, his loss of concentrationa and memory loss, he seemed out of character a few hours prior to the killing, the overkill nature of the attack · However, Dr. Janke stated that his opinion was largely dependent on the truthfulness and accuracy of the appellant’s account of the events · Also, normally an individual who has experienced a dissociative episode is unable to situate the events chronologically, which the appellant was able to do // Dr. Murphy: // · It is possible although very unlikely that the appellant was in a dissociatve state when he killed his wife. Memory loss is reported in 50% of people charged with serious crimes and the frenzied nature of the attack is equally consistent with rage as it is with dissociation. A dissociative episode means that the body and mind of the individual was split, therefore, that the appellant’s wife was both the trigger and victim of his episode renders his claim of dissociation suspect · Claims of dissociation should be viewed with suspect because the claimant has a clear interest in a favourable disposition
 * Facts: ** The appellant appeals his conviction for the murder of his wife. The appellant admitted to killing his wife, whom he stabbed 47 times. The appellant alleges that his wife had been yelling insults at him after a stressful day and a “whooshing” sensation came over him. The next thing he knew was that his wife was dead in the seat beside him and he was holding a hunting knife. He hid the body in the back of his truck and fled to Mexico. He returned to Canada approximately 6 weeks later and surrendered himself to the police. The appellant claims that his wife’s words made him enter an automatistic state, such that his actions were involuntary.
 * Issues: **
 * Expert Evidence: (two experts testified) **
 * Reasoning of ****// Bastarache J. //**** (//L'Heureux-Dubé, Gonthier, Cory// and //McLachlin JJ.// concurring): **

(Relevant statutory provisions: ss.16, 232, 687, 718.2 of the //Criminal Code// & ss.1, 7, 11 of the //Charter//) · Automatism has been defined as: “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.” · Bastarache prefers to use the term impaired consciousness instead of unconsciousness, in which an individual, though capable of action, has no voluntary control over that action · Two types of automatism are recognized by the law: insane automatism and non-insane automatism. A finding of non-insane automatism means that the automatism does not stem from a disease of the mind and would result in acquittal. Non-insane automatism does stem from a disease of the mind and falls under a mental disorder as set out in s.16 of the //Criminal Code.// It would entitle the accused to a finding of insanity rather than acquittal. · The type of automatism claimed by the appellant is non-insane automatism, and more specifically “psychological blow” automatism, because the appellant claims it was nothing more than his wife’s words that made him enter an automatistic state · The test Bastarache applies to evaluate the claim of automatism by the appellant is a general test designed to evaluate all claims of automatism, not just “psychological blow” automatism · ** Step 1: Establishing a proper foundation for the defence of automatism ** o This refers to satisfying the evidentiary burden to justify bringing a defence of automatism before the court o The defence is based in the fundamental principle of criminal law that only voluntary behaviour will attract a finding of guilt – a defence of automatism denies the voluntariness component of the //actus reus// o The law presumes that people act voluntarily, so a defence of automatism involves rebutting this presumption. Bastarache finds that all claims of automatism should place the same burden on the accused of proving involuntariness on a balance of probabilities to raise the defence. o  While this burden may limit the accused’s rights under s.11(d) of the //Charter,// it is justified under s.1 o The evidentiary burden at the proper foundation stage is directly linked to the legal burden on the defence, and thus the defence must satisfy the trial judge that there is evidence upon which a properly instructed jury could find that the accused acted involuntarily on a balance of probabilities o The nature of the evidence that will satisfy this burden must show that the accused acted involuntarily at the relevant time. A mere assertion of involuntariness will not suffice. Expert psychiatric evidence must be presented confirming the claim. There should be additional evidence on top of the assertion by the defence of automatism and psychiatric evidence that automatism is plausible based on the accused’s account of events. In cases of psychological blow automatism, the defence will need to prove a trigger equivalent to a “shock”. Corroborative evidence is also relevant i.e. a medical history of dissociation or testimony of a bystander, motiveless act. · ** Step 2: Determining Whether to Leave Mental Disorder or Non-Mental Disorder Automatism with the Trier of Fact ** o Only if a proper foundation has been set out by the defence will the trial juge have to determine if automatism should be left with the trier of fact. If a proper foundation has not been established, neither defence of mental disorder or non-mental disorder automatism is available; however, the accused may still claim a separate s.16 mental disorder defence. o Whether or not to leave the defence to the trier of fact will have significant implications – a successful claim of non-mental disorder automatism will always result in an absolute acquittal o In determining which type of automatism should be left with the trier of fact depends on whether or not the judge finds that it stems from a “disease of the mind”. This is a question of mixed law and fact. It is very rare that automatism will not stem from a disease of the mind. This lends itself to a rule that trial judges start from the proposition that the condition the accused claims to have suffered from is a disease of the mind. They must then determine whether the evidence in the particular case takes the condition out of the disease of the mind category. o A holistic approach should be taken in determining whether the automatism stemmed from a disease of the mind. o The judge should consider the “__internal cause theory__”, which requires the trial judge to compare the accused's automatistic reaction to the psychological blow to the way one would expect a normal person in the same circumstances to react in order to determine whether the condition the accused claims to have suffered from is a disease of the mind. A claim of psychological blow must involve a trigger that is “shocking” beyond the stresses of everyday events. The accused's automatistic reaction to the alleged trigger must be assessed from the perspective of a similarly situated individual. o The “__continuing danger theory__” should also be considered. This theory holds that any condition which is likely to present a recurring danger to the public should be treated as a disease of the mind. In determining whether there is a continuing danger to the public two factors are particularly relevant: the psychiatric history of the accused and the likelihood that the trigger alleged to have caused the automatistic episode will recur. o Finally, __other policy factors__ should also be considered. These include but are not limited to stiking an appropriate balance between the objectives of providing an exemption from criminal liability for morally innocent offenders and protecting the public, feignability, and repute of the administration of justice. o If the trial judge finds that the automatism is not a disease of the mind, the trier of fact is left to determine whether the defence has proven involuntariness on a balance of probablities o If the judge finds that it does stem from a disease of the mind, the case will proceed like any other s.16 case and the trier of fact will be left to determine whether the defence has proven on a balance of probabilities that the accused suffered from a mental disorder that rendered them incapable of appreciating the quality of the act in question · ** Application to this case ** o The learned trial judge concluded that the appellant had established a proper foundation for a defence of automatism, but that only mental disorder automatism should be left with the jury. o Although the trial judge did not apply the holistic approach to disease of the mind established in these reasons, he reached the correct result on this issue.