R.+c.+Parks

Website worth looking at: [|"10 Unbelievable Sleepwalking Stories"]

- Parks drove 23km from his house to his parents-in-law's house, where he killed his step-mother with a knife and attempted to kill his step-father - He then drove to the nearest police station to confess - Parks claims he was somnabulant (sleep-walking) the whole time. - Parks is a sound sleeper, and often sleep-walked. He comes from a family of sleep-walkers. - The jury at the trial court acquitted Parks of 1st- and 2nd- degree murder for the step-mother and of attempted murder for the step-father, due to automatism - The Court of Appeal upheld the judgment
 * __Facts:__**

Did the Court of Appeal err in considering somnambulism a non-insane automatism (which leads to acquittal)? Should the Court rather have considered somnambulism as an insane-automatism (which leads to a finding of insanity, rather than acquittal)?
 * __Issue:__**

 = insane automatism**
 *  = non-insane automatism

Parks missed a life sentence by avoiding a guilty verdict. And he wasn't sentenced to a psychiatric hospital because he wasn't judged insane. Instead, he walked out of the courtroom a free man. The SCC upheld this decision. "Parks was put on medication and never had a reoccurrence of his somnambulism." (from [|a 2006 news story])
 * __Held:__**

[in progress]


 * __DISSENTING IN PART Reasoning (Lamer C.J. + 1):__**

- **Definition "automatism"** (//Black's Law Dictionary//): "Behavior performed in a state of mental unconsciousness or dissociation without full awareness, //i.e.//, somnambulism, fugues. Term is applied to actions or conduct of an individual apparently occurring without will, purpose, or reasoned intention on his part; a condition sometimes observed in persons who, __without being actually insane__, suffer from an obscuration of the mental faculties, loss of volition or of memory, or kindred affections . . ." - **Definition** ** "disease of the mind" ** = is a legal term, not a medical term of art. "The legal or policy component relates to (a) the scope of the exemption from criminal responsibility to be afforded by mental disorder or disturbance, and (b) the protection of the public by the control and treatment of persons who have caused serious harms while in a mentally disordered or disturbed state. The medical component of the term, generally, is medical opinion as to how the mental condition in question is viewed or characterized medically. Since the medical component of the term reflects or should reflect the state of medical knowledge at a given time, the concept of "disease of the mind" is capable of evolving with increased medical knowledge with respect to mental disorder or disturbance." - No act is punishable if it is done involuntarily, done by the muscles without any control by the mind, or an act done by a person who is not conscious of what he is doing, such as an act done whilst suffering from concussion or whilst sleep‑walking. - Five expert doctors were heard. Each agreed that Parks was in a state of somnabulism when he committed the murder. They said that somnabulism is not considered a disease (neither mental, nor physical nor neurological) and that somnabulism is not a consequence of a mental disease. They agreed that, when somnabulant, a person is acting involuntarily, and that it is impossible to concoct a plan while awake and then execute it while sleeping. A somnabulant person cannot evaluate what he is doing, and cannot realize the consequences of what he is doing. The experts testified that the risk of a repeat homicide while somnambulant was infinitescimal. Somnabulism can be cured only by good 'sleep hygiene' (ex: going to bed at a regular time, getting physical exercise, not drinking alcohol, not being stressed, etc) - The prosecutor brought forward no experts to contradict the defense's expert testimony. - With different facts and different expert testimony, somnabulism could be qualified as insane-automatism. This happened in //R. v. Burgess.//
 * (This is the concurring part:)**

- Lamer worries that Parks may be a risk to society. Common law rules grant judges power to give conditions to an accused upon acquittal/liberation, as a form of preventative justice. For example, Parks could be given an order upon liberation, not to disturb public peace, or to follow all instructions given by a sleep specialist. There rules have as much force as any order given by a court. Lames concedes that these conditions infringe Parks' liberty under s.7 of the //Charter// but thinks they would be justified under s.1 because they protect society (after all, Parks killed one member of society). Lamer would send the case back to the trial judge to determine conditions for release.
 * (This is the dissenting part:)**


 * __CONCURRENCE Reasoning (McLachlin J. + 1):__**

Agrees with Lamer, except on the subject of sending the case back to trial court to decide on acquittal conditions. - There are constitutional questions regarding restricting the liberty of a person found innocent. - Parks has lived in the shadow of these accusations since 1987 and is doing his utmost to rebuild his life. He shouldn't be burdened with extra conditions upon acquittal. - Courts don't general issue conditions unless the prosecutor has suggested them, which wasn't the case here. - The legislature should issue a law on whether conditions to acquittal can be imposed in situations like this.


 * __CONCURRENCE Reasoning (Sopinka J.):__**

Agrees with Lamer C.J. except on ordering the trial court to make conditions on Parks acquittal. Sopinka J. agrees with McLachlin J., but would further add: - In order to use the common law power to order an acquittal condition not to break public peace, there needs to be a __likely chance bad conduct will happen at a later date__. (Then you can use art. 810 Crim. Code., but this needs to be brought forward by the prosecutor, not the court.) Here, the experts unanimously agreed the risk of another homicide while sleepwalking was infinitesimal. - There is a risk such conditions would violate s.7 and not be saved under s.1. - Lamer C.J. risks setting troubling precedent: what if a man is found guilty of a violent crime at trial court but acquittal on appeal for a procedural reason. According to Lamer, limits should be put on this man's acquittal to prevent him from committing other crimes. This goes against fundamental criminal law principles. - If conditions were ordered from Parks acquittal, the SCC would have to deal with the cross-appeal (Parks claims his rights were violated under s.11b of the //Charter//) because Parks would still be under an order from the state.


 * __MAJORITY Reasoning (La Forest J.+ 2):__**

La Forest draws out the differences between automatism (non-insane) and insanity: -- Lamer C.J. placed a lot of emphasis on the facts and the expert testimony. Emphasis should also be place on __public order__. -- Automatism is qualified as a 'defense' but in fact means a lack of a component of the //actus reus//. Though automatism is a defense, it is the prosecutor who must prove the act was done voluntarily. -- When an accused wants to use as defense non-insane automatism, the judge must decide if this defence can be presented to the jury using two steps: (1) Is there proof justifying the presentation to the jury? [In our case: the experts satisfied the judge that the answer to (1) is YES.] (2) The judge must establish, in law, that the state of the accused at the time amounted to non-insane automatism. [This is the question before the SCC - does somnambulilsm amount to non-insane automatism?]

From Criminal Code: [|Defence of mental disorder] [|Presumption] (2) Every person is **presumed not to suffer from a mental disorder** so as to be exempt from criminal responsibility by virtue of subsection (1), until the contrary is proved on the balance of probabilities. [|Burden of proof] (3) The burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal responsibility is on the party that raises the issue. -- If the accused raises automatism, the prosecutor can counter with insanity but then the burden to prove insanity is on the Crown.
 * [|16.]** (1) No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.

__A juridical determination that a certain state constitutes a 'mental disease':__ (1) The medical component: -- Doctors can help a judge decide if a certain state qualifies as a 'mental disease' but the ultimate decision of whether something amounts to a 'mental disease' rests with the judge, and is a decision in law, not medicine. There is no one definition of a 'mental disease' in the medical community - there is much controversy. (2) The public policy component, in order to prevent having people who behaviour against the criminal code from living free in society. This often involves sending them for mental treatment. -- (a) Theory of the "subsistent risk": every state which brings with it the risk of recurrence of danger for society should be deemed a mental disease -- (b) Theory of the "internal cause": every state which originates from a person's own psychology or emotions (instead of from an outside factor - ex: falling into a coma) should be deemed a mental disease. This theory is also preoccupied with recurrence - internal causes are more likely to recur than external factors. -- In the UK and Canada, theory (b) dominated. However, in //Rabey//, the SCC stressed that (b), the test for an internal cause, is not helpful when it comes to somnambulism. Theory (b) cannot be the sole theory because certain states (such as somnambulism) are due to both external and internal factors. (External factors such as stress, lack of sleep, etc). -- The trouble with theory (a) is that it is hard for doctors to predict the risk of a repeat offence. It would also not make sense to say a serious mental illness is not a mental disease just because the risk of repeating the crime is low. Theory (a), the risk of recurrence, should just be one __factor__ to consider in a determination of mental disease. No risk of recurrence does not mean there is no mental disease. -- The duration of the state is of no relevance - there can be temporary or permanent mental diseases. -- In the case at bar, the risk of recurrence (a) is very low. Theory (b) is too hard to apply to somnambulism. And so we must look further to determine if somnambulism is a mental disease. -- Dickson J. was against recognizing non-insane automatism, for fear it would open flood gates of this defense. But that is unlikely because it is hard to fake sleep-walking (there are certain symptoms, and medical history). -- Some argue a defense of automatism (whether insane or non-insane) questions the credibility of our penal system. This goes against a fundamental principles of our penal system: that only people who voluntarily commit crimes with the required intention will be punished. -- No public order considerations prevent us from finding that somnambulism is not a mental disease. -- It was up to the Crown to show somnambulism is a mental disease, and this was not shown.

La Forest agrees with McLachlin and Sopinka, and disagrees with Lamer C.J.'s idea of conditions upon Parks' acquittal. -- To be efficient, an order not to trouble peace would have to be permanent. But all orders by a court must be for definitive duration. -- There are only two ways to enforce a court order, both of which are impracticable here: (1) To have a plantiff complain when the order is breached. There is no plaintiff here - we couldn't ask the family to complain when Parks disturbed public peace. (2) To have a third-party put up bail. The third-party would have to pay if Parks breached. The third-party reports to the court when Parks is about to breach, to avoid having to pay the bail. This is possible for short-term durations, but not permanently.