R. v. Baig, 2026 ONCJ 475

WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(2.1) of the Criminal Code. These subsections and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(2.1), read as follows:

486.4 (2.1) Victim under 18 — Other offences — Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) Mandatory order on application — In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order; and

(c) if an order is made, as soon as feasible, inform the victim of the existence of the order and of their right to apply to revoke or vary it.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

CITATION: R. v. Baig, 2026 ONCJ 475

DATE: 2026-08-13

Toronto

ONTARIO COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

— AND —

AHMED BAIG

Before Justice Mara Greene

Reasons for Judgment released August 13, 2026

E. An....................................................................................................................... for the Crown

M. Murphy......................................................................................................... for Ahmed Baig

Greene, J:

[1] On August 2, 2023, Mr. Baig exited his residence wearing only a towel. He ran into the street, and as he did so, his towel fell off. Now fully naked, Mr. Baig chased a family who lived across the street. He ran into the driveway and picked up a seven-year-old girl. He threw her to the ground, punched her and strangled her. He then abruptly left the driveway, and a short time later was arrested by police. At the time of arrest, he wore only a t-shirt.

[2] Mr. Baig was charged with assault causing bodily harm and assault by choking. At trial he pled not guilt to both counts. Mr. Baig did not dispute that he attacked the seven-year-old girl. He argued, however, that he should be acquitted of the charges because his actions were involuntary as he was suffering from a cannabis induced psychosis at the time of the attack. Crown counsel argued that while Mr. Baig’s mental faculties may have been impacted by cannabis, his acts were still volitional. In the alternative, she argued that Mr. Baig should be found not criminally responsible by reason of mental disorder (NCR).

Summary of evidence

(a) Events of August 3, 2023

[3] Mr. Baig lived in a muti-generational home with his own family, his brother’s family and his parents. According to Mr. Baig, on August 2, 2023 his parents were out of town which caused him some anxiety. His wife and children were out for the day and after dinner, his brother and sister-in-law also went out. Home alone, Mr. Baig decided to consume cannabis to help with his feelings of anxiety. He used a brand of cannabis recommended by the store, but one he had not used before. The cannabis was in vape form. Instead of relieving his anxiety, he felt more anxious.

[4] Mr. Baig telephoned his wife and asked her to come home. He then showered, because he felt unpure and thought it might relieve his anxiety. He then then lay down on his bed.

[5] Mr. Baig testified that his next memory after lying down on his bed was being in a cell and then being fingerprinted.

[6] It is agreed, and established clearly by video evidence, that during this time, Mr. Baig left his residence and, while naked, attacked and strangled a seven-year-old girl causing her bodily harm. Ms. D., the victim’s mother, witnessed the entire attack. According to Ms. D., as Mr. Baig followed them and then attacked her daughter, Mr. Baig said both “I will kill you” and “I won’t kill you”. He also referred to Allah. Mr. D. also testified that Mr. Baig sounded nonsensical at times and made comments about billionaires.

[7] Mr. Baig’s arrest was captured on body worn camera. During the arrest Mr. Baig was wearing just a t-shirt and can be heard making comments that appear nonsensical one moment and responsive the next moment. For example, when asked if he wanted a lawyer, Mr. Baig stated that he wanted Neil Patrick Harris or a lawyer from a television show. He also talked about bit coin and lotteries. At other times Mr. Baig answered questions appropriately. He went down to the ground when the officer’s told him to do so. He also told the police that he was “mentally insane”. Once at the police station he was able to answer questions posed to him and appeared more coherent.

[8] Officer Gkitasli, one of the arresting officers, testified that Mr. Baig seemed in distress, confused and appeared like he was not aware of what was going on and what was happening.

[9] At the police station, Mr. Baig was sweating profusely. As a result, he was taken to hospital for medical treatment. No medical intervention was required, and he was returned to the police station for processing.

(b) psychiatric evidence

[10] According to the evidence, Mr. Baig is a 38 year old man with no criminal record who lives in a multigenerational home. He has a business degree and works in the family business.

[11] Mr. Baig testified that he has a history of sleepwalking. This was confirmed by his brother. He also has experienced some anxiety in the past and has used cannabis to help deal with his anxious feelings. The type of cannabis used on the date of the offence was new to him.

[12] Two psychiatrists testified at the trial, Dr. Shapiro and Dr. Chaimowitz

[13] Dr. Shapiro was retained by Mr. Baig and is a sleep expert. According to Dr. Shapiro, Mr. Baig suffers from severe sleep apnea. Dr. Shapiro testified that, in his opinion, Mr. Baig was either suffering from cannabis induced psychosis, sleepwalking or a combination of the two. Testing revealed that Mr. Baig suffers from severe sleep apnea. According to Dr. Shapiro, this led to Mr. Baig being significantly sleep deprived. The sleep deprivation coupled with his history of sleepwalking (albeit only in his home), his use of a cannabis strain he had not consumed before, Mr. Baig’s behaviour as captured in all the videos and Mr. Baig’s self report that for days following the event he felt disconnected and disjointed formed the basis for Dr. Shapiro’s opinion.

[14] Mr. Baig testified that since his diagnosis of sleep apnea he uses a machine at night and he sleeps a lot better.

[15] After Dr. Shapiro testified, Crown counsel sought to have an NCR assessment. I granted the order and Dr. Chaimowitz was retained to carry out this assessment.

[16] Dr. Chaimowitz prepared a report and was called as a defence witness. According to Dr. Chaimowitz, Mr. Baig did not appreciate the nature and consequences of his actions at the time of the attack as he was suffering from a cannabis induced psychosis. He further testified that in his opinion, Mr. Baig’s actions were involuntary. It was Dr. Chaimowitz’s opinion that Mr. Baig did not qualify for NCR defence because he did not have disease of the mind. While Mr. Baig had a history of feeling anxious, he did not have an anxiety disorder, nor did he suffer form any other kind of mental illness.

[17] Dr. Chaimowitz was questioned at length by the Crown about whether Mr. Baig was merely impaired by drug as opposed to being in a psychotic state that was so extreme Mr. Baig’s behaviour was involuntary. Dr. Chaimowitz testified that it was his opinion that Mr. Baig was in a psychotic state that was different from mere intoxication. In support of this opinion, Dr. Chaimowitz referenced the bizarre comments and behaviour exhibited by Mr. Baig both at the time of the assault and in the after math of the attack as well as Mr. Baig’s self report of feeling detached from reality for a few days following the attack. The comments made by Mr. Baig at the time displayed grandiose, paranoid, delusional and disordered thoughts. Dr. Chaimowitz testified that if Mr. Baig was just severely impaired or intoxicated by drug, he would have had milder symptoms that would have dissipated in hours.

[18] Dr. Chaimowitz was also extensively cross-examined about the fact that during the arrest and while at the police station, Mr. Baig, at times, appeared responsive and coherent. For example, at time of arrest, he complied with police and went to the ground. He also told the police that he was mentally insane. Moreover, at the police station Mr. Baig was able to answer questions about himself and his health. He appeared oriented to place and time. It was Dr. Chaimowitz’s opinion that the behaviour had to be viewed as a whole. While there were moments when Mr. Baig was responsive and oriented in time and place, moments later he appeared disoriented and displayed grandiose, paranoid and disordered thought. It was Dr. Chaimowitz’s opinion that Mr. Baig’s periodic moments of responsiveness were just muted presentations of the psychosis.

[19] Dr. Chaimowitz testified that it was his opinion that the psychotic episode Mr. Baig suffered was so intense that his capacity for rational perception and his capacity to make a rational choice was grossly impaired. According to Dr. Chaimowitz, Mr. Baig was rendered incapable of appreciating the nature, quality and wrongfulness of his actions.

[20] Dr. Chaimowitz was asked directly whether Mr. Baig’s actions were voluntary when he assaulted the victim. Dr. Chaimowitz testified that he was unable to determine whether Mr. Baig’s choice in leaving the house was voluntary, but it was his opinion that leaving the house naked and then attacking the young child were not voluntary actions.

[21] In a very thorough cross-examination, Crown counsel pointed to specific actions, suggesting that while Mr. Baig’s behaviour displayed drug induced reasoning, it was still goal directed and voluntary. Dr. Chaimowitz disagreed with the Crown’s position and maintained his opinion that the behaviour was not voluntary. Dr. Chaimowitz explained that even if Mr. Baig was directed to the child victim by a sound, his behaviour was still not voluntary because he was not aware of and capable of understanding the stimulus.

Summary of the issues at trial

[22] Mr. Baig seeks an outright acquittal on the basis of non-insane automatism. Crown counsel argued that the evidence, at its highest, establishes that Mr. Baig was intoxicated but not to the point of being an automaton. As such, Crown counsel argues he should be found guilty of the offences before the court.

[23] In the alternative, the Crown argued that Mr. Baig was barred from raising the defence of automatism because of s.33.1 of the Criminal Code. In the further alternative, the Crown argued that I should find Mr. Baig not criminally responsible by reason of mental disorder.

[24] With this in mind, the issues can be described as follows:

a) Has the defence met their burden to establish that Mr. Baig’s actions were involuntary?

b) If the acts were involuntary is the defence barred from raising this as a defence by reason of s.33.1 of the Criminal Code?

c) If the defence is not barred from raising this defence, should Mr. Baig be found not guilty or NCR?

Voluntariness/automatism

[25] In the case at bar, Mr. Baig seeks an acquittal based on the defence that is commonly referred to as “automatism”. He argued that he was so impaired by the consumption of cannabis that his actions were involuntary – or in other words, that he acted as an automaton.

[26] Cases like this one are very difficult for trial judges. Mr. Baig clearly attacked and hurt a young girl. This is a serious offence with serious consequences for the victim and her family. The long term harm suffered by child victims is well known. An acquittal based on an absence of criminal responsibly for a violent act is rarely a satisfying verdict. Nonetheless, our law is clear, that accused persons who are not criminal responsible should not be convicted.

[27] Mr. Baig’s offences are “general intent” offences. As was stated by the Supreme Court of Canada in R. v. Brown, 2022 SCC 18, “intoxication short of automatism is never a defence to crimes of general intent, including manslaughter, assault and sexual assault” (R. v. Brown at para 43). The court further stated that “only the highest form of intoxication – that which results in a person losing voluntary control of their actions” will provide a defence to general intent offences” (R. v. Brown at para 45). The Supreme Court of Canada further stated in Brown “I specifically leave intact the common law rule that drunkenness, absent clear scientific evidence of automatism, is not a defence to general intent crimes, including crimes of violence such as sexual assault (R. v. Brown, at para 6). In R. v. Miskie, 2024 ONCJ 145, Daviau J. stated that “this rare and limited defence will only be engaged in instances where the intoxication is so extreme that the resulting behaviours are clearly involuntary”.

[28] According to the jurisprudence, the defence of automatism is linked to both the actus reus and the mens rea of an offence. In relation to the actus reus, the Supreme Court of Canada in R. v. Brown, supra, stated “the defence of automatism denies the element of voluntariness and therefore negates the actus reus of the offence” (R. v. Brown at para 46). The court further stated “in addition, an automaton cannot form the mens rea, or a 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” (R. v. Brown at para 48).

[29] In the case at bar, counsel for Mr. Baig ably argued that Mr. Baig has met the burden of establishing on a balance of probabilities that Mr. Baig’s acts were involuntary due to cannabis induced psychosis. Crown counsel argued that while Mr. Baig’s behaviour was weird and he was under the influence of cannabis, the evidence does not meet the high test for automatism.

[30] In support of her position, Crown counsel identified the following limitations of the defence evidence:

a) the video of the assault supports a finding of voluntariness as Mr. Baig appears to follow Ms. D. and her children, but when he was unable to catch up to her, he diverted his attention to the seven year old victim. This kind of behaviour, in Crown counsel’s submission, shows higher level processing that would not be engaged if Mr. Baig was acting involuntarily.

b) The video of the arrest and of Mr. Baig during processing at the station establish that he could respond to questions posed and appeared to understand what was taking place around him.

c) Both psychiatrists lacked information and expertise in cannabis such that their opinions should not be accepted. This is particularly the case since all the cases where the automatism defence has been successful involve a mixture of drugs as opposed to just cannabis.

e) The psychiatrists failed to adequately explain why the cannabis would have created such an extreme reaction in Mr. Baig.

d) Even if I accept that Mr. Baig was suffering from a cannabis induced psychosis at the time of the assault, it does not necessarily follow that his acts were involuntary

[31] Despite Crown counsel’s excellent submissions, I am satisfied that the defence has met their burden. I reach this conclusion for a number of reasons. Firstly, I accept Mr. Baig’s evidence. He was consistent in his testimony, was not evasive and was thoughtful in his approach to the questions posed to him. Moreover, portions of his evidence were confirmed by other witnesses. While Mr. Baig’s evidence is not directly helpful in determining if his actions were involuntary since he has no memory of the events, his evidence is necessary in relation to the opinions of the two expert witnesses. I accept that he has no memory of the event, I accept that he purchased cannabis from a lawful store, I accept that the kind of cannabis purchased was unknown to Mr. Baig but recommended by the store clerk to relieve anxiety, I accept that on the day of the attack Mr. Baig was feeling anxious and I accept that Mr. Baig consumed the cannabis in attempt to relieve his anxiety. I further accept that the cannabis did not relieve his anxiety and instead made him feel unpure and more anxious. I accept Mr. Baig’s evidence that he took a shower and then lay down on his bed. I further accept his evidence that he has a history of sleepwalking.

[32] Secondly, the video evidence, in my view, establishes that Mr. Baig was acting in a bizarre fashion, he looked confused, and sounded delusional and disorganized at times. I appreciate that he was also responsive at times, but I accept Dr. Chaimowitz’s opinion that the behaviour has to be considered as a whole. Despite being responsive at times, his comments and behaviour as a whole support the opinion that Mr. Baig was in a psychotic state at the relevant time.

[33] Thirdly, two experts testified that Mr. Baig was in a psychotic state caused by the consumption of cannabis. I am mindful that Dr. Shapiro’s opinion was more complicated and included sleepwalking, but I found Dr. Chaimowitz’s opinion to be better supported. I agree with Crown counsel that no weight should be placed on Dr. Shapiro’s opinion that Mr. Baig was sleepwalking as this opinion was not supported by the evidence and was speculative in nature.

[34] I do, however, accept Dr. Chaimowitz’s opinion. In my view, the opinion was well supported by the evidence presented at trial. Dr. Chaimowitz’s opinion was based on Mr. Baig’s self report (which I am mindful should be approached with caution), the videos from the day, the absence of any relationship between Mr. Baig and the victim, and psychological testing. Dr. Chaimowitz was cross-examined at length about the moments of lucidity and their impact on his opinion. Dr. Chaimowitz explained that he considered the entirety of the behaviour and not just a single moment in time. He also testified that people can have moments of responsiveness when in a psychotic state.

[35] One area that the Crown expressed concern about was that Dr. Chaimowitz does not have any knowledge of the different types of cannabis. He had to look online to determine the potency of the cannabis used by Mr. Baig on this date. I agree that Dr. Chaimowitz is not an expert in cannabis and that he cannot provide expert evidence about the drug. This, however, does not detract from his overall opinion about Mr. Baig’s mental state at the time of the offences. Dr. Chaimowitz is not required to know the properties of all cannabis forms. Dr. Chaimowitz’s opinion about Mr. Baig’s mental state was not linked to the properties of the cannabis but instead was linked to the behaviour seen on the video, the self report of Mr. Baig and the fact that cannabis can cause psychosis. He only pointed to the potency of the strain of cannabis used by Mr. Baig as a potential explanation for the psychosis. In my view, Dr. Chaimowitz is an experienced psychiatrist who formed a psychiatric opinion based on his education, experience, assessment of Mr. Baig, the videos and all the other information he had about this case.

[36] In relation to the Crown’s argument that even if Mr. Baig was in a cannabis induced psychotic state, this does not mean that his actions were involuntary. I agree that one can be psychotic, delusional and paranoid and still act voluntarily. The Court of Appeal stated in R. v. Bhogal, “While some people who experience drug-induced psychosis may become so impaired that their actions can no longer be seen as volitional, not everyone who experiences psychotic symptoms – that is, delusions, hallucinations, or disordered thinking – will be affected so severely. The question of whether drug-induced psychotic symptoms caused a particular accused to enter an impaired mental state akin to automatism will depend on the circumstances and the evidence in that case” (R. v. Bhogal 2025 ONCA 487 at para 66). On the evidence in this case, the expert, Dr. Chaimowitz, was specifically asked whether Mr. Baig’s actions in attacking the victim were voluntary. He replied they were not. Dr. Chaimowitz testified that at the time of the attack, Mr. Baig’s complex and bizarre behaviours were a function of his psychotic experience such that it rendered his actions involuntary.

[37] During cross-examination, Crown counsel pointed out certain acts of Mr. Baig that she suggested appeared goal directed and voluntary. Dr. Chaimowitz, in looking at the entire event disagreed. In doing so, Dr. Chaimowitz referenced Mr. Baig’s overall behaviour and his disordered thought process. I accept Dr. Chaimowitz’s evidence. Dr. Chaimowitz assessed Mr. Baig in response to a court order. He has no interest in the outcome of this case. He is experienced and presented his evidence in a clear manner and answered all the Crown’s questions clearly and remained consistent. His opinion was also supported by the evidence. In my view, Dr. Chaimowitz gave his opinion without bias or exaggeration. Moreover, there is no psychiatric evidence before me that contradicts Dr. Chaimowitz’s opinion. For all these reasons I accept his opinion and find that Mr. Baig has proven on a balance of probabilities that he was acting as an automaton when he attacked the seven-year-old girl in her driveway. I am satisfied that Mr. Baig voluntarily consumed cannabis, had an unexpected reaction to the cannabis, that led to a state of psychosis where he acted in an involuntary state and attacked the young victim.

B) Is Mr. Baig barred from raising this defence because of s.33.1 of the Criminal Code?

[38] The legal history of the automatism defence when raised in the context of self-induced intoxication has gone through many changes. In R. v. Daviault 1994 CanLII 61 (SCC), [1994] 3 S.C.R. 63, the Supreme Court of Canada held that “an accused person who meets the burden of establishing the defence is entitled to an acquittal because being in a state of intoxication “so extreme that [it was] akin to automatism will render an accused person incapable of either performing a willed act or of forming the minimal intent required for a general intent offence” (see R. v. Daviault, supra, at p.103 and R. v. Bhogal, supra, at para 44).

[39] After the decision in R. v. Daviault, Parliament enacted s. 33.1 of the Criminal Code which restricted the availability of extreme self-induced intoxication as a defence to general intent offences. In R. v. Brown, supra, the Supreme Court of Canada declared this provision unconstitutional. In response, Parliament enacted a new version of 33.1 of the Criminal Code. This new provision creates a negligence-based mode of liability for extreme self-induced intoxication.

[40] The new provision reads as follows:

33.1(1) A person who, by reason of self-induced extreme intoxication, lacks the general intent or voluntariness ordinarily required to commit an offence referred to in subsection (3), nonetheless commits the offence if

(a) all the other elements of the offence are present; and

(b) before they were in a state of extreme intoxication, they departed markedly from the standard of care expected of a reasonable person in the circumstances with respect to the consumption of intoxicating substances.

(2) For the purposes of determining whether the person departed markedly from the standard of care, the court must consider the objective foreseeability of the risk that the consumption of the intoxicating substance could cause extreme intoxication and lead the person to harm another person. The court must, in making the determination, also consider all relevant circumstances, including anything that the person did to avoid the risk.

[41] There is little case law on the new section 33.1 to assist me. Fortunately, the language of the provision provides clear guidance on how the provision is to be applied. It prohibits the defence of extreme intoxication where it was a) self induced and where b) the accused person departed markedly from the standard of care of a reasonable person in relation to the consumption of the intoxicating substance. It is not a mere departure from the standard of care, it is a “marked departure”.

[42] Moreover, Parliament in subsection (2) identified the factors the court must consider. These include:

• Objective foreseeability prior to consumption of the risk that consumption of the substance could cause extreme intoxication and lead to harming another

• Steps taken by the accused person to avoid any risk of harm

• Any other factor that the court considers relevant

[43] In the case at bar, when I consider all the evidence, I accept that subjectively Mr. Baig did not foresee that he would become extremely intoxicated by the cannabis he consumed. More importantly, it is my view that his subjective belief was objectively reasonable and as such, objectively the extreme intoxication and the risk of harm to others was not foreseeable.

[44] I note that Mr. Baig had used cannabis in the past and never had a reaction like this. He did have a negative experience when he was a teenager, but he did not become psychotic as a result of using the drug, it just made him more anxious. I further note that Mr. Baig purchased the cannabis at a legal store and sought advice of the clerk. He took the cannabis in the privacy of his own home and his intention was to stay home. When he started to react to the cannabis, he took steps to reduce its effects and contacted family members to come home. In these circumstances, it is my view that objectively, it was not foreseeable that Mr. Baig would become so intoxicated by the cannabis that he would become psychotic and hurt someone.

[45] I am mindful that one might say that Mr. Baig did not take active steps to avoid the risk of harm. As the Crown pointed out, Mr. Baig did not check the potency level on the product when he purchased it and did not remember how much he consumed. Moreover, as the Crown also pointed out, cannabis is known for its dissociative properties and can cause delusions, hallucinations, psychosis and disordered thinking. In my view, however, given Mr. Baig’s past experience with cannabis and the way in which he was planning to use the cannabis, this was unnecessary. Mr. Baig elected to use a lawful product in a safe place with no one else around. I am mindful that Mr. Baig had never used this strain of cannabis before, but this, in my view does not make him criminally negligent. He obtained the cannabis from a registered store; he conveyed to the store clerk that he only wanted to calm his nerves and trusted the recommendation of the clerk. This in my view, was reasonable. Moreover, he did not consume significantly more of the product than he had in the past. When he became alerted to the fact that he was not reacting normally to the cannabis, Mr. Baig, in my view, actively tried to reduce the risk by contacting his wife and asking her to come home, taking a shower and then laying down on his bed. In my view it was not objectively foreseeable that Mr. Baig would have such a catastrophic reaction to the cannabis with such catastrophic consequences. As such it is my view that Mr. Baig’s cannabis use on this date was not a marked departure from the standard of care expected of a reasonable person in the circumstances and as such he is not barred from using as a defence.

C) mental disordered automatism v. nonmental disordered automatism.

[46] At common law there are two types of automatism defences – mental disorder automatism and non-mental disorder automatism. Where the automatism is caused by a disease of the mind, it will be mental disorder automatism, and the accused will be found not criminally responsible by reason of mental disorder (R. v. Stone 1999 CanLII 688 (SCC), [1999] 2 S.C.R. 290 and R. v. LL 2025 ONSC 4967). All other forms of automatism are nonmental disorder automatism (R. v. Stone [1999] 2 S.C.R. 290 at para 199). Where automatism is found, the presumption is that the accused was suffering from mental disordered automatism. I further note that a finding of nonmentally disordered automatism is very rare, as was stated in R. v. Luedecke 2008 ONCA 716 at para 63,

The broad definition of the term "mental disorder" has led to the channelling of most automatism claims into the NCR-MD pool. That trend reached its high water mark in Stone. Bastarache J., for the majority [at para. 199] went so far as to take judicial notice "that it will only be in rare cases [page110] that automatism is not caused by mental disorder". [See Note 5 below] Bastarache J. further observed, at para. 199, that trial judges should start with the assumption that the condition constitutes a disease of the mind. Trial judges should then look to the evidence to determine whether that presumption has been rebutted. After Stone, many argue that successful claims of non-mental disorder automatism will be limited to those very rare "one off" cases in which an accused suffers a single incident of automatism, and where the accused can point to some specific external event that precipitated that event, can demonstrate that the event is unlikely to reoccur, and finally, can show that the event could have produced a dissociative state in an otherwise "normal" person.

[47] In the case at bar counsel for Mr. Baig, in advocating for an acquittal, relies on Dr. Chaimowitz’s evidence that in his psychiatric opinion Mr. Baig does not suffer from a disease of the mind. In my view, while Dr. Chaimowitz’s evidence is relevant, it is not determinative. This is not because I reject Dr. Chaimowitz’s evidence. As noted, above, I accept his evidence. The term disease of the mind, however, is a legal term not a psychiatric term. As I understand Dr. Chaimowitz’s evidence, his opinion that Mr. Baig does not have a disease of the mind appears to be based on a mistaken understanding of the legal definition of the term “disease of the mind”. As was stated in R. v. Stone, 1999 CanLII 688 (SCC), [1999] 2 S.C.R. 290 at paragraph 195 citing from R. v. Rabey, at pp 12-13,

“The evidence of medical witnesses with respect to the cause, nature and symptoms of the abnormal mental condition from which the accused is alleged to suffer, and how that condition is viewed and characterized from the medical point of view, is highly relevant to the judicial determination of whether such a condition is capable of constituting a “disease of the mind”. The opinions of medical witnesses as to whether an abnormal mental state does or does not constitute a disease of the mind are not, however, determinative, since what is a disease of the mind is a legal question…”

[48] I am mindful that each case must be decided on its own facts. It is still helpful, in my view, to consider how other judges have approached this issue.

[49] In R. v. Ballard, 2026 ONSC 887, Mr. Ballard was found NCR to the offence of second-degree murder. It was found at trial that Mr. Ballard was in a state of drug induced psychosis at the time of the murder. In finding that Mr. Ballard was NCR, the trial judge noted that Mr. Ballard suffered from a substance abuse disorder and personality disorders. The trial judge further found that the consumption of alcohol and drugs did not occur immediately prior to the murder, but some time earlier. Moreover, according to the psychiatric evidence before the court, Mr. Ballard was different from the “normal person” insofar “as he has a vulnerable brain and personality disorder features”. (at para 68). In making this finding the trial judge stated,

69I find that it is more likely than not that the drug-induced psychotic state Mr. Ballard was in at the time of Mr. Murray’s killing was not the result of acute intoxication but rather prolonged use over a period of months combined with his internal physical and psychological condition. Therefore, the cause of Mr. Ballard’s psychosis was both internal or external.

[50] In R. v. Brown, 2020 ABQB 166, the accused broke into a person’s residence and then attacked the homeowner while suffering from extreme intoxication from alcohol and magic mushrooms. On the evidence, Mr. Brown was suffering from a form of substance intoxication delirium. In acquitting Mr. Brown, the trial judge noted that there was no evidence of a likelihood of re-occurrence because there was no evidence of a particular susceptibility or a pattern of substance abuse (R. v. Brown, supra, at para 87). The Supreme Court of Canada upheld the acquittal but did not address the issue of mental disorder automatism. The only issue addressed by the Supreme Court of Canada was the constitutionality of section 33.1.

[51] In R. v. Barrett 2025 BCPC 94, Mr. Barret was charged with break and enter, sexual assault and obstruct police. The expert evidence at trial was that Mr. Barrett was in a drug induced psychosis at the time. In entering an acquittal, the court stated at para 14,

I am aware that I should start from the proposition that the accused suffered from a mental disorder before determining whether there is sufficient evidence to remove the condition from the mental disorder category

[52] The trial judge further stated that there was no evidence that Mr. Barrett suffered from an internal issue that predisposed him to the psychosis and there was no evidence that he was an ongoing danger. The trial judge further stated that it was not necessary to protect the public from Mr. Barrett by the use of the mental disorder provisions of the Criminal Code.

[53] Turning back to the facts in the case at bar, the question I must answer is whether Mr. Baig has demonstrated that the automatism was caused by an external event that is not likely to recur and that the event could have produced a similar response in a normal person. The burden lies with Mr. Baig to rebut the presumption that his involuntary behaviour was a result of a disease of the mind.

[54] In the case at bar, there was an external event that precipitated the involuntary activity – the use of cannabis. I must therefore determine whether Mr. Baig has established that this was a “one off” event that is not likely to reoccur and that this could occur with an otherwise normal person.

[55] Unlike the Ballard case where there was evidence of a vulnerability, addiction issues and personality disorders, in the case at bar, Dr. Chaimowitz testified that there was no underlying issue that caused Mr. Baig to react the way he did. While Mr. Baig suffers from sleep apnea and was sleep deprived at the time, Dr. Chaimowitz testified that any suggestion that his sleep apnea played some role in Mr. Baig’s reaction to cannabis is purely speculative. Dr. Chaimowitz further testified that he could not predict whether others would or would not react the same way and he could not say what the likelihood is that others would react the same way to this drug. This is because individual responses to drugs are unpredictable and drug specific. As the Crown pointed out in her written submissions, however, cannabis is known for its dissociative properties and is a psychoactive substance. All this evidence, in my view, supports a finding that the involuntary state was caused by an external event, that Mr. Baig did not have some underlying susceptibility and that this could happen to a “normal person” because the effect of a drug on any one person is unpredictable.

[56] I am mindful that cannabis is a widely used product and that most people do not find themselves in a psychotic state after consuming cannabis. This supports the inference that a “normal person” would not respond this way and that Mr. Baig must have some kind of vulnerability. The question is whether this commonsense conclusion has been rebutted by the evidence at trial. In my view, it has. Firstly, like many others Mr. Baig also used cannabis for years without engaging in involuntary behaviours. This one out of the ordinary experience is consistent with Dr. Chaimowitz’s evidence that the effect of a drug is unpredictable. Secondly, Dr. Chaimowitz was cross-examined at length about the presence of some underlying feature or disorder in Mr. Baig that made him vulnerable to this kind of reaction. Dr. Chaimowitz, in my view, clearly testified that he could not point to anything specific and could only speculate. While I appreciate the burden is on Mr. Baig, the psychiatric evidence of an absence of an underlying vulnerability coupled with the other evidence is sufficient for Mr. Baig to meet his burden.

[57] In my view, it is the continuing danger piece that is the most difficult factor to assess. As was stated in R. v. Luedecke, supra, at this stage, the focus is on “social defence concerns” where the court must consider “the risk posed by the potential recurrence of the conduct in issue” (R. v. Luedecke at para 100). Moreover, “where that risk exists, the risk combined with the occurrence of the conduct that led to the criminal proceeding will almost always justify further inquiry into the accused’s dangerousness so as to properly protect the public” (R. v. Luedecke, at para 100).

[58] In the case at bar, Mr. Baig committed a very violent act on a child while in a psychotic state caused by using what has been described as a potent form of cannabis. Dr. Chaimowitz testified that Mr. Baig should never use cannabis again because it led to this offence. In giving this evidence, Dr. Chaimowitz did not say that this would happen again, nor did he testify to the likelihood of it happening again. He was, in my opinion, stating the obvious, it happened once, it may happen again. In assessing the risk of reoccurrence, in the absence of a formal risk assessment, I must consider the catastrophic consequences if this were to happen again, the likelihood that Mr. Baig will consume cannabis again along with the likelihood that he will become psychotic again if he uses cannabis.

[59] In the case at bar, unlike the Ballard case, Mr. Baig does not have a substance abuse disorder, he does not have a personality disorder and has not had a prior reaction of this sort to cannabis. Moreover, I accept Mr. Baig’s evidence that he has not used cannabis since this offence and has found other ways to help himself when he starts to feel anxious. When I consider all this evidence, while I am unable to find that there is no risk of reoccurrence, the risk, in my view, is relatively low. This is because Mr. Baig has used cannabis intermittently since he was 15 years old without a similar incident, Mr. Baig does not have substance abuse issues, he has not used cannabis since his arrest and has found better methods of addressing his anxious feelings. In my view, this is not a case where oversight by the Ontario Review Board is required to protect the public. In this context, I am satisfied that there is sufficient evidence to displace the presumption of a disease of the mind. I therefore find that Mr. Baig has met his burden of establishing the defence of nonmental disorder automatism and find him not guilty of both charges.