WARNING
The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences;
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).
486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. S.H., 2014 ONCA 303
DATE: 20140422
DOCKET: C56874
Sharpe, Watt and Benotto JJ.A.
BETWEEN
Her Majesty the Queen
Appellant
and
S.H.
Respondent
Deborah Krick, for the appellant
Robert Sheppard, for the respondent
Heard: January 27, 2014
On appeal from the acquittals entered on March 11, 2013 by Justice Thomas J. Carey of the Superior Court of Justice, sitting without a jury.
Watt J.A.:
[1] S.H. was a 60-year-old man who was a good neighbour to two widows who lived on the same street. One was a few years younger than S.H. The other was two decades older.
[2] S.H. helped each of the widows with different tasks around their homes. He cut their grass. He shovelled their snow. He looked after their pets.
[3] When the summer solstice arrived in 2010 things changed drastically. S.H. sexually assaulted both his neighbours in their homes that evening. S.H. claimed he had no memory of what each neighbour said he had done to her. Yet he freely admitted that he had no reason to disbelieve their accounts or to suggest that what they said was anything but the truth.
[4] The judge who presided at S.H.’s trial was satisfied that S.H.’s conduct occurred while he was in an automatistic state that was not caused by a mental disorder. The judge found S.H. not guilty of all counts included in the indictment.
[5] The Crown appeals. These reasons explain why I have concluded that it is necessary to have a new trial so that a judge can determine whether S.H.’s automatistic state should be characterized as mental disorder automatism or non-mental disorder automatism.
THE BACKGROUND FACTS
[6] The manner in which the case proceeded at trial and the ground of appeal advanced render unnecessary any detailed description of the conduct that underpinned the various counts contained in the indictment. Some brief reference to the underlying circumstances is essential, however, since those circumstances relate to the characterization of the conduct and form part of the basis for the expert opinion evidence adduced at trial.
[7] It was common ground at trial that S.H. was the person who did the things alleged by each complainant and that, if S.H.’s conduct was voluntary, his guilt of each count had been proven beyond a reasonable doubt. Neither complainant testified. Counsel at trial agreed that the records of their police interviews could serve as their evidence.
1. The Principals
[8] S.H. lived with his wife of more than 40 years on the same street as the complainants. The principals visited each other’s homes freely and frequently. S.H. had keys to both complainants’ houses and helped them with numerous tasks around their homes. There was no suggestion of any animosity on S.H.’s part towards either complainant, or of any motive on his part to engage in the conduct that admittedly occurred.
[9] During the summer months, S.H. and the complainants often drank beer together. It was not unusual for S.H. to be alone with either complainant in her home or to drink beer there.
2. The Early Events of June 18, 2010
[10] S.H. got up early on June 18, 2010. As was his habit, he went to a local coffee shop, then drove to his daughter’s home to help her with his grandchildren. S.H. cut the grass at his daughter’s home. He returned home around noon. His wife noticed that he was red-faced and sweating profusely.
[11] S.H. went outside and applied a sealer to his driveway. He “guzzled” some water, had a cold beer and read the paper before cutting his own grass and that of one of the complainants. Before supper, S.H. sat in the sunroom at his home with one of the complainants. He drank two beers, then delivered two ice coolers to the complainant’s home before returning to his own home for a shower before dinner.
3. The Complainants’ Visit
[12] After dinner, S.H.’s wife went shopping with her sister. One of the complainants came across the road with two beers. She and S.H. sat in the sunroom drinking their beer. S.H. called the other complainant and invited her to join them. She did so. S.H. had two beers as did one of the complainants. The other complainant had one beer.
[13] After they finished their beer, S.H. walked the older complainant home as was his custom. He then returned home. The other complainant returned to her home. By this time, S.H. had drunk five beers over several hours. Neither complainant considered that S.H. was impaired.
4. The First Assault
[14] Shortly after she returned home, the older complainant answered a knock at her door. S.H. was there. She invited him in for a beer. He sat on the living room couch. They talked as S.H. drank his beer.
[15] S.H. finished his beer. As he got up to leave, S.H. grabbed the complainant and made it clear that she was going to have sex with him. The complainant resisted. The struggle continued into her bedroom.
[16] Suddenly, S.H. got up from the bed. In a normal voice, he said “well, I’m off”, then told her to lock her door and left her home. The complainant telephoned the other complainant to tell her what had happened. She left a voicemail message before she called another friend who called 911.
[17] The older complainant suffered injuries to her jaw, arms, and upper body. She required some stitches for a cut on her chin.
5. The Second Assault
[18] As the second complainant was lying on her bed, she was awakened by S.H. who had entered her bedroom. He grabbed her by the throat and made his intentions clear. He told her that he had already been at her neighbour’s house. S.H. unzipped his pants and removed his shirt. He forced the complainant down on the bed, punched her, then threatened to kill her.
[19] Something startled S.H. He got off the complainant and ran out of the bedroom. The second complainant had heard the telephone ring, then the first complainant’s voice on a voicemail. She called 911.
6. The Arrest
[20] Police responded quickly to the 911 calls. They found S.H. in the basement of the second complainant’s home. He was lying motionless on the floor, shirtless but wearing his pants. He was arrested and taken to a nearby police station.
7. The Police Interview
[21] Police interviewed S.H. shortly after his arrest. The videotape of the interview and a transcript of it were filed as exhibits at trial.
[22] During the police interview, S.H. indicated that he understood the charges as they were explained to him. He acknowledged that the complainants would not lie about what had happened. He told the officer that if the complainants said or told the police about what had happened, then what they said must have occurred.
[23] S.H. told police that he had no recollection of the events described by the complainants. He remembered little more about anything that happened after he escorted the older complainant across the road. He thought he may have had too many beers.
[24] S.H. testified at trial. He reiterated his lack of memory about the conduct attributed to him by the complainants. He said he recalled only parts of his police interview.
8. The Medical Evidence
[25] Evidence adduced at trial, including various reports, described several features of S.H.’s condition at the time of the alleged offences. S.H. was fit to stand trial. He displayed no symptoms of any major mental illness. He had a thyroid condition but it played no role in the events of June 18, 2010. He reported contemporaneous numbness in his hands and dizziness.
[26] S.H. did not adduce evidence from a psychiatrist. The principal evidence on which he relied was the expert opinion of Dr. John David Spence, who was qualified as an expert in neurology and in connection with subjects such as strokes and transient global amnesia.
[27] Dr. Spence described transient global amnesia as an event in which a person may appear normal to others, for example by talking to them normally, but have no recollection of anything that occurred during a time period that may last for several hours. Transient global amnesia has several causes including transient ischemia, an event in which part of the brain is deprived of blood flow for a period of time.
[28] Dr. Spence reviewed an MRI of S.H.’s brain and concluded that S.H. had suffered at least a dozen small strokes likely caused by blood clots breaking off from the heart and going to the brain. None of the strokes were caused by hypertension. He attributed the arm numbness reported by S.H. to a type of vertigo caused by a problem with the part of the brain that receives messages from the balance mechanism located in the inner ear.
[29] Dr. Spence gave his opinion about the medical cause of S.H.’s conduct. He said that S.H. had had a number of small strokes and that his behaviour during the critical events was caused by temporal lobe seizures. Dr. Spence had never seen a patient experience contemporaneously both seizures and transient global amnesia, nor had he ever seen seizure patients being assaultive. He described the seizures as status epilepticus – either a prolonged seizure or a series of seizures separated by less than half an hour.
[30] Dr. Spence testified that during seizure activity a person is not behaving voluntarily or wilfully. An “electrical storm in the brain” drives what happens. No memory is recorded. From a medical point of view, S.H. suffered from a disease of the brain (where seizure and stroke activity occurs), not a disease of the mind.
[31] Dr. Spence gave evidence that prescribed medication reduces the risk of recurrent stroke activity by eighty per cent or more. Alcohol consumption may have reduced S.H.’s stroke threshold such that the seizure might not have occurred without the alcohol consumption. Similarly, a large intake of water without any electrolytes could also lower a person’s stroke threshold.
9. The Evidence of Dr. Angela Carter
[32] The trial Crown (not Ms. Krick) adduced the evidence of Dr. Angela Carter, a forensic neuropsychologist. Dr. Carter concluded that S.H.’s conduct was voluntary. She considered that the conduct reflected a combination of a disinhibition caused by excessive consumption of alcohol and a long history of over-controlled or repressed anger. In her view, the medical explanation offered by Dr. Spence was speculative.
THE REASONS FOR JUDGMENT
[33] The trial judge began his reasons with an endorsement of the position of counsel for S.H. that if S.H.’s conduct was voluntary, the offences charged were proven as alleged. He then proceeded to review the evidence adduced at trial and the positions the parties advanced in closing argument.
[34] The trial judge accepted the evidence of S.H. that he could not remember the conduct alleged by the complainants. The judge was satisfied that S.H. was a person of good character who enjoyed a good relationship with both complainants and had no motive to sexually assault either of them.
[35] The trial judge also accepted the evidence of Dr. Spence about what caused the conduct alleged by the complainants. He acknowledged that seizure-induced violent behaviour was rare but was satisfied that it had occurred here.
[36] The trial judge approached his task on the basis that the law presumed S.H.’s conduct was voluntary and imposed on him (S.H.) the burden of proving involuntariness on a balance of probabilities. The judge recognized that automatism could be easily feigned but considered that lack of motive added some measure of plausibility to the claim of involuntariness. He acknowledged that R. v. Stone, 1999 CanLII 688 (SCC), [1999] 2 S.C.R. 290 expressed the need for confirmatory expert evidence from a psychiatrist. He concluded, however, that where the underlying condition was related to seizures, the evidence of a neurologist could serve to confirm the assertion of involuntariness.
[37] The trial judge accepted that it was his task to determine the legal classification of the automatistic conduct of S.H. He accepted Dr. Spence’s opinion that the strokes were a disease of the brain, not a disease of the mind. He considered:
• the absence of any prior episode of violence;
• the dimunition of risk factors by prescribed medication;
• the nature of the precipitating factors;
• the unlikelihood of future danger to the public;
and concluded:[^1]
In conclusion, all of the evidence in this case leaves me in a state of reasonable doubt about the voluntariness of Mr. H.’s actions. I have concluded that he was most likely in an automatistic state at the time and that state was not caused by a disease of the mind and is, therefore, non-insane automatism. The verdict, therefore, Mr. H., if you would stand up, the verdict is not guilty and you are acquitted.
THE GROUNDS OF APPEAL
[38] The Crown does not contest the trial judge’s core or foundational finding that S.H.’s conduct was involuntary. Crown counsel acknowledges that such a finding was available to the trial judge on the evidence adduced at trial.
[39] Crown counsel contests the trial judge’s application of the governing legal standard to the determination of whether the respondent’s condition amounted to a “mental disorder” within s. 2 of the Criminal Code. Ms. Krick for the Crown submits that the error consisted of a combination of:
i. a failure to begin the analysis from the presumption that the underlying condition was a mental disorder;
ii. reliance on Dr. Spence’s medical opinion that the condition was a disease of the brain, not a disease of the mind, and thus could not amount to a “mental disorder” within s. 2 of the Criminal Code; and
iii. an error in considering the recurring danger factor referred to the risk of recurrence of violent conduct rather than the risk of recurrence of the triggering events.
[40] In her submissions relating to Dr. Spence’s medical opinion, the Crown does not raise the issue that Dr. Spence is a neurologist, rather than a psychiatrist.
[41] Before turning to the merits of the ground of appeal advanced, it is necessary to consider whether the claim of error advanced involves a question of law alone.
THE ISSUES
The Threshold Issue: A Question of Law Alone?
[42] The parties spent little time on the threshold question of whether the ground of appeal advanced involves a question of law alone as required by s. 676(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46. It is essential, nonetheless, that we be satisfied that the error alleged lies within the scope of our jurisdiction on an appeal by the Crown.
The Positions of the Parties
[43] For the appellant, Ms. Krick takes no issue with the trial judge’s finding that the respondent’s conduct said to constitute the actus reus of the offences charged was involuntary. She focusses her submissions on the legal characterization of the condition that was the genesis of the involuntary or automatistic conduct. That characterization, she says, involves a question of law alone. An error in characterizing the automatism as non-mental disorder automatism, rather than as mental disorder automatism, involves a question of law alone within the meaning of s. 676(1)(a) of the Criminal Code.
[44] For the respondent, Mr. Sheppard voices no strenuous opposition to the Crown’s claim that the issue raised involves a question of law alone. He queries, however, whether what is involved is not more a question of mixed law and fact than a question of law alone.
The Governing Principles
[45] Where a trial judge finds all the facts necessary to reach a legal conclusion but fails to do so, a court of appeal can accept the facts as found by the trial judge and disagree with the legal conclusion without trespassing on the fact-finding function of the trial judge. The disagreement is with respect to the law, not the facts nor inferences to be drawn from the facts. The issue raised involves a question of law alone within the meaning of s.676(1)(a): R. v. Morin, 1992 CanLII 40 (SCC), [1992] 3 S.C.R. 286, at p. 294; R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R.197, at para. 28; and R. v. Luedecke, 2008 ONCA 716, 93 O.R. (3d) 89, at para. 48.
[46] The interpretation of a legal standard or the application of a legal standard to an uncontroverted factual premise involve questions of law alone: R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 18; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 23; R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, at para. 21; and Luedecke, at para. 50.
The Principles Applied
[47] The trial judge found that the respondent’s conduct was involuntary. He was satisfied that the respondent was likely in an automatistic state when he entered the complainants’ homes and sexually assaulted them. The appellant accepts these findings.
[48] The appellant parts company with the trial judge on the legal characterization of the respondent’s condition as non-mental disorder automatism. This involves either the interpretation of a legal standard or the application of a legal standard to a fixed factual predicate. What is involved in either case is a question of law alone: Araujo, at para. 18; and Luedecke, at para. 50.
[49] I am satisfied that the error alleged by the appellant in the characterization of the respondent’s involuntary conduct as non-mental disorder automatism, rather than mental-disorder automatism, involves a question of law alone within s. 676(1)(a) of the Criminal Code. It follows that the issue raised falls within our statutory authority.
The Substantive Issue: The Legal Character of the Respondent’s Automatism
[50] The trial judge found that the conduct of the respondent which constituted the actus reus of the offence charged was involuntary. The finding is not in dispute here. What is an issue is the trial judge’s legal characterization of that conduct as non-mental disorder automatism.
[51] The trial judge recognized that the conduct of persons charged with criminal offences is presumed to have been voluntary unless the person charged establishes the contrary on a balance of probabilities. He appears to have considered the respondent’s amnesia about the relevant events as indicative of their involuntary nature, a conclusion he felt was supported by the accounts of the complainants and the proven absence of motive.
[52] The trial judge also appreciated that an assertion of involuntariness was insufficient to warrant a finding that the conduct occurred while the respondent was in an automatistic state. He concluded that despite the requirements in Stone of confirmation by “psychiatric evidence” and “expert psychiatric or psychological evidence”, expert testimony from a neurologist could meet the expert evidence requirement where the cause of the automatistic behaviour was a stroke.
[53] The trial judge accepted the evidence of Dr. Spence, noting that it was unchallenged by any expert neurological or psychiatric evidence tendered by the Crown. He rejected intoxication as a cause of the conduct. He appears to have accepted Dr. Spence’s distinction between a disease of the mind and a disease of the brain, although he did not consider the medical opinion dispositive of the issue of classification.
The Arguments on Appeal
[54] For the appellant, Ms. Krick says that the trial judge made three errors in reaching his conclusion that the respondent’s conduct occurred while he was in a state of non-mental disorder automatism.
[55] First, Ms. Krick submits, the trial judge failed to take as the starting point for his analysis the presumption that automatistic conduct originates in a disease of the mind, thus is legally characterized as mental disorder automatism. Further, Ms. Krick contends, the trial judge failed to appreciate that it will only be in rare cases that automatism is not caused by a mental disorder. This first false step flawed the entire analysis that followed.
[56] Second, Ms. Krick urges, the trial judge erred in his consideration of the internal cause factor during his analysis of whether the automatistic behaviour originated in a mental disorder. The trial judge failed to appreciate that the medical distinction made by Dr. Spence – disease of the brain vs. disease of the mind – was of no moment in the mental disorder analysis. Whether a condition is a “disease of the mind”, and thus a “mental disorder”, is a legal, not a medical question. That a condition is a disease of the brain from a medical point of view does not remove it from the scope of the legal term “disease of the mind”.
[57] Third, according to Ms. Krick, the trial judge also erred in his consideration of the continuing danger factor in determining whether the respondent’s condition amounted to a disease of the mind. The trial judge’s exclusive focus was on the likelihood of the recurrence of violent conduct, rather than where it should have been, on the likelihood that the commonplace triggers – heat, stress, alcohol consumption, dehydration, undiagnosed conditions and the like – would recur. Further, the trial judge failed to take into account the need for medication as indicative of the likelihood of recurrence.
[58] For the respondent, Mr. Sheppard emphasizes that to determine whether automatistic conduct should be legally classified as mental disorder or as non-mental disorder automatism requires a holistic approach that takes into account internal cause, continuing danger and other policy factors. The trial judge, he submits, followed this approach and reached a conclusion that was legally correct and firmly grounded in the evidence. The trial judge took into account Dr. Spence’s opinion, as he was entitled to do, but did not treat it as dispositive of the mental disorder issue. While it is true that the trial judge did not begin from a presumption of mental disorder automatism, his failure to do so did not flaw his analysis of the relevant factors or vitiate his ultimate conclusion.
[59] Mr. Sheppard contends that the trial judge’s consideration of the internal cause factor reveals no error. There was no evidence of previous seizure-related violent conduct nor any history of similar episodes. In connection with the continuing danger factor, the trial judge noted that prescribed medication has reduced the likelihood of stroke relapse to about six per cent. His analysis of this factor and other policy factors that focus on public safety or risk was unassailable.
The Governing Principles
[60] The issue raised, and thus the dispute, relates to the legal characterization of what is accepted as involuntary or automatistic conduct. More narrowly, the question is whether the respondent’s condition was a “disease of the mind” and thus his conduct should have been characterized as mental disorder automatism leading to a special verdict of not criminally responsible on account of mental disorder (NCRMD).
[61] Several principles are at play and inform the decision. It is therefore necessary to review those principles.
(1) The Nature of Automatism
[62] Automatism is a state of impaired consciousness in which a person, though capable of action, has no voluntary control over that action: Stone, at para.156. The term “automatism” has been held to refer to involuntary conduct that is the product of a mental state in which the conscious mind is disassociated from the part of the mind that controls action: Luedecke, at para. 54.
[63] Automatism relates to the actus reus or external circumstances of an offence. To be more specific, automatism has to do with the voluntariness component of the actus reus. The requirement of voluntariness is fundamental to the imposition of criminal liability and reflects our underlying respect for an individual’s autonomy. The voluntariness requirement also reflects the principle that unless a person has the capacity and a fair opportunity to adjust his or her behaviour to the law, its penalties ought not to be applied to him or her: Luedecke, at para. 56.
[64] The law presumes that people, including those charged with crime, act voluntarily: Stone, at para. 171. The presumption is rebuttable. Automatism amounts to a claim that the conduct of a person charged with crime was not voluntary. It follows that a person charged who invokes automatism in answer to the charge bears the burden of rebutting the presumption of voluntariness: Stone, at para. 171.
(2) The Burden and Standard of Proof on Automatism
[65] The term “burden of proof” is used in two senses. The first, often described as the “evidentiary burden”, refers to the obligation of a party to adduce evidence sufficient to warrant consideration of an issue by the trier of fact. The second, referred to as the “legal burden” or “persuasive burden”, describes the obligation of a party to prove or disprove the fact at issue. Both apply to claims of automatism. As a matter of general principle, the legal burden follows the evidentiary burden. This is so for automatism: Stone, at paras. 173 and 182.
[66] Where automatism is advanced in answer to a charge, the evidentiary and legal burdens of proof settle on the person charged.
[67] To satisfy the evidentiary burden, an accused must adduce evidence upon the basis of which a properly instructed jury could find, on a balance of probabilities, that his or her conduct was involuntary: Stone, at para. 182.
[68] To meet the legal burden, an accused must satisfy the trier of fact, on a balance of probabilities, that his or her conduct was involuntary: Stone, at para. 179.
(3) Discharging the Burden of Proof
[69] To satisfy the evidentiary burden in automatism cases, in other words, to put the claim of automatism in play, an accused must
i. claim that she or he acted involuntarily; and
ii. adduce expert evidence to support the involuntariness claim.
Stone, at paras. 183-184.
[70] The court in Stone makes it clear that a mere assertion of involuntariness will not be enough to meet the evidentiary burden: Stone, at para. 183. The claim must be confirmed by expert evidence, sometimes described as “psychiatric evidence” (para. 184), and on other occasions as “expert psychiatric or psychological evidence” (para. 192).
[71] The Stone majority offered some guidance about the nature of the additional evidence that may be relevant for consideration in deciding whether an accused had satisfied the evidentiary burden to put automatism in play before the trier of fact. That evidence includes, but is not limited to:
i. evidence of a documented medical history of automatistic-like dissociative states (para. 189);
ii. evidence of a bystander about the appearance of the accused before, during and after the alleged involuntary conduct (para. 190); and
iii. evidence of motive or absence of motive (para. 191).
[72] Where an accused has satisfied the evidentiary burden in connection with automatism, it falls to the trial judge to determine the legal characterization of the automatism. In a jury trial, the trial judge must decide whether mental disorder automatism or non-mental disorder automatism should be left to the jury.[^2] In judge alone trials, the distinction between the evidentiary and persuasive burden tends to become blurred since the judge is both the trier of law and the trier of fact. Irrespective of the mode of trial, however, the trier of fact will decide whether the accused has satisfied the legal or persuasive burden of proof.
(4) The Legal Character of Automatism
[73] The criminal law characterizes automatism as mental disorder automatism or non-mental disorder automatism. What distinguishes one characterization of automatism from the other is the presence, in the former, and absence, from the latter of a “mental disorder” as defined in s. 2 of the Criminal Code. The assessment of which form of automatism should be left to or considered by the trier of fact comes down to whether the condition alleged is a mental disorder: Stone, at para. 193.
[74] Despite the presumption in s.16(2) of the Criminal Code that every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility under s. 16(1) of the Criminal Code,[^3] we are to begin from the premise that automatism originates in a mental disorder and then examine the evidence to determine whether the condition does not originate in a disease of the mind: Stone, at para. 199; and Luedecke, at para. 90.
(5) What Constitutes a “Mental Disorder”
[75] Section 2 of the Criminal Code exhaustively defines the term “mental disorder” as it is used in the Criminal Code. A mental disorder is a disease of the mind. Mental disorder is a legal term: Stone, at para. 195.
[76] “Disease of the mind” is also a legal term. It is not a medical term although it contains a substantial medical component as well as a legal or policy component: Stone, at para. 195; R. v. Parks, 1992 CanLII 78 (SCC), [1992] 2 S.C.R. 871, at pp. 898-899; and R. v. Rabey, (1977) 17 O.R. (2d) (C.A.), at pp. 12-13, affirmed, 1980 CanLII 44 (SCC), [1980] 2 S.C.R. 513.
[77] In R. v. Cooper, 1979 CanLII 63 (SCC), [1980] 1 S.C.R. 1149, Dickson J. (as he then was) summarized the meaning of the term “disease of the mind” at page 1159:[^4]
In summary, one might say that in a legal sense “disease of the mind” embraces any illness, disorder or abnormal condition which impairs the human mind and its functioning, excluding however, self-induced states caused by alcohol or drugs, as well as transitory mental states such as hysteria or concussion. In order to support a defence of insanity the disease must, of course, be of such intensity as to render the accused incapable of appreciating the nature and quality of the violent act or of knowing that it is wrong.
[78] The term “disease of the mind” comprehends not only diseases that are physical in origin, but also purely functional disorders that have no physical cause: Rabey (Ont. C.A.), at pp. 14-16; Cooper, at p. 1159; R. v. Kemp, [1957] 1 Q.B. 399, at p. 406; R. v. Hartridge, 1966 CanLII 347 (SK CA), [1967] 1 C.C.C. 346 (Sask. CA), at p. 366; and R. v. O’Brien, 1965 CanLII 590 (NB CA), [1966] 3 C.C.C. 288 (N.B.S.C., A.D.), at pp. 305-306. What is critical is not so much the medical characterization of the condition or its origin in medical terms, but rather its effect on the capacity of the accused.
[79] Expert medical evidence about the cause, nature and symptoms of the abnormal condition from which an accused suffered and how that condition is viewed and characterized from a medical perspective is relevant to and admissible for a judge’s determination of whether the condition constitutes a disease of the mind, and thus a mental disorder. Medical opinions are not dispositive of and sometimes of limited value in the ultimate decision of whether, in law, a condition amounts to a mental disorder: Rabey (Ont. C.A.), at p. 13; Stone, at para. 199; and Luedecke, at para. 103.
[80] To determine whether a condition amounts to a disease of the mind, a trial judge is to take a holistic approach informed by the internal cause factor, the continuing danger factor and other policy considerations: Stone, at para. 203. The internal cause factor refers to a malfunctioning of the mind that arises from a source in the accused’s psychological or emotional make-up, as opposed to being produced by a specific external factor, such as a concussion: Rabey (Ont. C.A.), at para. 59. Especially relevant to the continuing danger factor are the psychiatric history of the accused and the likelihood that the trigger alleged to have caused the automatistic episode will recur: Stone, at para. 214.
The Principles Applied
[81] As I will briefly explain, I am satisfied that as a result of the combined effect of three errors the trial judge failed to apply the proper legal standard when he characterized the respondent’s automatism as non-mental disorder automatism and entered unqualified acquittals.
[82] First, the trial judge erred in failing to begin from the premise that automatistic behaviour is caused by a mental disorder except in rare cases: Stone, at para. 199. The trial judge should have begun from the premise that the automatism was caused by a disease of the mind, then looked to the evidence to determine whether he was satisfied on a balance of probabilities that the condition was not a disease of the mind: Luedecke, at para. 90. To fail to begin from what, in effect, amounts to a rebuttable presumption of mental disorder, constitutes an error in law.
[83] Second, the trial judge erred in failing to appreciate that Dr. Spence’s opinion that the respondent’s condition constituted a disease of the brain was largely irrelevant to the determination of whether the condition should be classified legally as a disease of the mind. This error has two aspects. The trial judge assigned near-dispositive effect to the medical opinion, a status that the governing authorities deny. Further, as the authorities make clear, what medicine regards as a disease of the brain does not remove the condition from the legal term “disease of the mind” since both physical and functional disorders fall within its compass: Cooper, at pp.1155-1156; Kemp, at p. 406; Rabey (Ont. C.A.), at p. 13; O’Brien, at pp. 305-306; and Hartridge, at p. 366.
[84] Third, the trial judge erred in his application of the continuing danger factor by focussing on the prospect of recurrence of violent conduct rather than on the likelihood of recurrence of the commonplace events that triggered the automatistic state: Stone, at para. 214; and Luedecke, at paras.111-112.
The Order to be Made
[85] The Crown has established legal errors that, in combination, vitiate the finding of non-mental disorder automatism that grounded the respondent’s unqualified acquittals. Our dispositive authority does not extend, however, to substitution of a special verdict of NCRMD: Criminal Code s. 686(4); and Luedecke, at para. 129. Crown counsel accepted that the respondent’s conduct was involuntary, thus we cannot substitute a conviction as s. 686(4)(b)(ii) might otherwise permit.
[86] The parties agree that if the appeal is allowed, we should set aside the acquittals and order a new trial confined to a determination of whether the respondent’s automatism should result in a verdict of not guilty or a special verdict of NCRMD: Luedecke, at para. 142.
CONCLUSION
[87] For the reasons I have given, I would allow the appeal, set aside the respondent’s acquittals and order a new trial on all counts confined to a determination of whether the respondent’s automatism should result in a verdict of not guilty or of NCRMD.
Released: April 22, 2014 “RJS”
“David Watt J.A.”
“I agree Robert J. Sharpe J.A.”
“I agree M.L. Benotto J.A.”
[^1]: While the trial judge used the term “non-insane automatism”, the term “non-mental disorder automatism” is the proper language following amendments to Part XX.1 of the Criminal Code and the decision of the Supreme Court of Canada in R. v. Stone, 1999 CanLII 688 (SCC), [1999] 2 S.C.R. 290.
[^2]: In some cases, as for example where there is conflicting evidence on the “disease of the mind” or “mental disorder” issue, both types of automatism may be left to the jury.
[^3]: The presumption is rebuttable.
[^4]: Cooper preceded the amendments to s.16 and Part XX.1 of the Criminal Code, which changed the language from “insanity” to “mental disorder”.