Court Information
Court File: Toronto Region Date: 2012-12-13 Ontario Court of Justice
Between: Her Majesty the Queen — and — Devon Henry
Before: Justice P. Harris J.
Heard on: November 26, 27, 29, 2012
Reasons for Judgment released on: December 13, 2012
Counsel:
- Peter Scrutton for the Crown
- David Butt for the defendant Devon Henry
P. Harris J.:
Introduction
[1] Devon Henry is charged that on April 24, 2011, he committed an assault on Keith Ryan contrary to section 266 of the Criminal Code. At the outset, Mr. Henry entered a plea of not guilty and the trial proceeded on the basis of prosecution evidence tendered in an "Agreed Statement of Facts" consisting of a recitation of events that occurred on the night of April 23rd, 2011 (and early morning hours of April 24th, 2012). The pertinent facts are as follows:
Just after midnight on April 24th, 2011, on Ossington Avenue in Toronto, Parking Enforcement Officer Devon Henry was working in uniform when he was forcibly struck and knocked to the ground hitting his head "face first". Immediately after the attack, Mr. Henry was observed on the ground on his knees and could not stand. An officer arrived on scene and asked "what happened?" and asked for a description of his assailant and received "no response". Police officers on scene found Mr. Henry "very confused and disoriented, bleeding over his right eyebrow, with scrapes and cuts to his forehead and cheek and a tender area under his chin." In order to obtain a statement, he was taken to 14 Division and asked to sit in a lunchroom or "guardroom" on the second floor of the station. The person who had allegedly attacked Mr. Henry was arrested and charged with assaulting Mr. Henry and taken to 14 Division for processing, as well. This was an individual by the name of Keith Ryan. Meanwhile, Sgt. David Correa interviewed Mr. Henry in the lunchroom at the Division and reported that Mr. Henry did not want to go to the hospital; he said: "my ego is more hurt than ─ than ─ than my body sort of thing."
Parking Enforcement Supervisor Scott Greenaway, Mr. Henry's direct supervisor, saw him in the lunchroom at the Division and described him as being: "just foggy, He was just, kind of, out of it…..He was unresponsive really, to questions, where you'd ask him a question and instead of getting a direct answer, he would kind of, well, and then kind of snap back and be able to say something."
Parking Enforcement Supervisor Antonio Molinaro stated he began talking to Mr. Henry in the lunchroom. "He looked tired and a bit sad, depressed." "I said, you know, what happened? And he just said that…he was writing a ticket, somebody knocked the handheld [ticket printer] out of his hands and ─ and he got punched."
Sometime after he had spoken to these witnesses, and approximately one hour after the assault on Ossington Avenue, Mr. Henry left the lunchroom and "stormed into" a search room off the booking area on the first floor of the station, where Mr. Ryan was being searched, pushed past an officer and said to Mr. Ryan "remember me?" and struck Mr. Ryan forcibly in the face and ribs and left the room and returned to the lunchroom. Mr. Henry was then taken to the hospital with his supervisors. (See Agreed Statement of Facts – Exhibit 1).
Defence Evidence
[2] Devon Henry testified that he had been a parking enforcement officer for 9.5 years. He testified that shortly after midnight while issuing tickets "a guy ran into me, knocked my arm and the ticket printing machine went flying". He said he ran after the man and as he "got close, he decked me". He found himself on the ground, he "couldn't get up", his head was "cloudy" and he was "struggling to gain my senses". He gave evidence his head was spinning and he was having a hard time focusing. He next recalls being on the second floor at 14 Division, "we were kinda sitting around". He had no specific recollection saying "remember me?" or of assaulting Mr. Ryan. He testified he was walking around, trying to "clear my head". He stated he entered a room, "heard somebody shouting and screaming so I walked back out". He next recalls being at the hospital for a few hours while the doctor did some tests. He testified that he had no memory of telling Dr. Peter Carlen, the Neurologist who was consulted in this case, that two constables brought him into the room where the suspect was being held, or that he partially recognized him and hit him (the suspect Keith Ryan) a few times in the stomach. Devon Henry stated that he had been in 14 Division before and that he was allowed in some areas, "the lunch room, the washrooms". He did not know if he could get to other areas of the station: "I don't know. I never had any reason to go there".
[3] Dr. Peter Carlen was qualified as an expert witness in the medical science of Neurology with particular expertise in the occurrence, diagnosis and cerebral dysfunction that flows from concussion. In his report (Exhibit 2), Dr. Carlen concludes that on the basis of the evidence "it is clear that the patient had suffered a concussion, which left him significantly confused, with a very foggy memory of the events. Hence, I have no doubt that Mr. Henry was in a state of impaired consciousness even though he was capable of action. However whether he had no voluntary control over that action is hard to be absolutely sure of. What I am sure of is that his ability to make logical or rational decisions would certainly have been impaired". Dr. Carlen testified that he could not be certain Mr. Henry assaulted Mr. Ryan voluntarily or involuntarily ─ but that he was certain it was not a wise or rational thing to do and not what he was likely to do any other time". Dr. Carlen advised that he had been told by Mr. Henry that two constables brought him into the room where the suspect was being held, that he partially recognized him and hit him a few times in the stomach. Despite Mr. Henry's lack of memory on the subject, I am satisfied that Dr. Carlen is the more reliable historian on the question of whether these comments were made by Mr. Henry. Under cross-examination, Dr. Carlen agreed that Devon Henry was in control of his movements to the extent he punched Mr. Ryan, and that the "remember me" comment was an indication of an operating mind "up to a certain level." In conclusion, Dr. Carlen's opinion was that ─ based on his concussion and the observations of him that followed ─ Devon Henry was in an impaired cognitive state and not fully mentally competent.
Positions of Counsel
[4] In this case there is no question Mr. Henry sustained a concussion as a result of a blow to the head caused by his "face-first" fall to the pavement and about one hour later committed an assault. The defence takes the position his actions were the result of "impaired consciousness" resulting from the blow to the head ─ and advances the defence of non-insane automatism. Consequently, the issue to be determined is whether he was in a state of automatism at the time of the assault on Keith Ryan at 14 Division. If his actions were not deliberate, purposeful, or the exercise of his conscious will, no criminal act has taken place and the Defendant is entitled to an acquittal on the basis of this common law defence.
[5] The Crown maintains that the defendant has not demonstrated on a balance of probabilities that he was in a state of automatism on the night in question while committing the assault. In the alternative, the Crown submits that notwithstanding this assertion of the defendant, the Crown has, on all the evidence, proven voluntariness beyond a reasonable doubt.
Applicable Legal Principles
[6] One of the leading cases in this field is R. v. Stone, [1999] 2 S.C.R. 290 in which Basterache J. for the majority, defines the elusive concept we refer to as automatism:
A. The Nature of Automatism
155 The legal term "automatism" has been defined on many occasions by many courts. In Rabey, supra, Ritchie J., speaking for the majority of this Court, at p. 518, adopted the following definition of the Ontario High Court of Justice in R. v. K. (1970), 3 C.C.C. (2d) 84, at p. 84:
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.
156 The reference to unconsciousness in the definition of automatism has been the source of some criticism. In her article "Automatism and Criminal Responsibility" (1982-83), 25 Crim. L.Q. 95, W. H. Holland points out that this reference to unconsciousness reveals that the law assumes that a person is necessarily either conscious or unconscious. However, the medical literature speaks of different levels of consciousness (p. 96). Indeed, the expert evidence in the present case reveals that medically speaking, "unconscious" means "flat on the floor", that is, in a comatose-type state. I therefore prefer to define automatism as a state of impaired consciousness, rather than unconsciousness, in which an individual, though capable of action, has no voluntary control over that action. (Emphasis added).
[7] This decision sets the test to be met for automatism as one in which the evidence establishes that the individual had "no voluntary control." Stone also describes the procedure that should be adopted as well as the factors to be considered in the assertion of a defence of automatism:
171 The law presumes that people act voluntarily. Accordingly, since a defence of automatism amounts to a claim that one's actions were not voluntary, the accused must rebut the presumption of voluntariness. An evidentiary burden is thereby imposed on the accused.
179 The foregoing leads me to the conclusion that the legal burden in cases involving claims of automatism must be on the defence to prove involuntariness on a balance of probabilities to the trier of fact.
[8] Consequently, the first step is that the defence must establish a proper evidentiary foundation for a defence of automatism ─ the "defence must make an assertion of involuntariness and call expert psychiatric or psychological evidence confirming that assertion". The positing of these two requirements in and of themselves is not sufficient to discharge the burden of the defence. "This burden will generally require more than an assertion of involuntariness on the part of the accused accompanied by confirming expert evidence that automatism is plausible assuming the account of events given to the expert by the accused was accurate and truthful. In the second step, the trier of fact, in evaluating that evidence, must make a determination as to whether there is sufficient evidence upon which a properly instructed jury could find on a balance of probabilities that the accused acted involuntarily." An enquiry as to the foundation and nature of the expert opinion as well as other available evidence is required. The Court offered some guidance on what additional evidence is relevant to the determination of whether the defence has raised evidence which would permit a properly instructed jury to find that the accused acted involuntarily on a balance of probabilities:
190 Corroborating evidence of a bystander which reveals that the accused appeared uncharacteristically glassy-eyed, unresponsive and or distant immediately before, during or after the alleged involuntary act will also be relevant to the assessment of whether the defence has raised evidence on which a properly instructed jury could find that the accused acted involuntarily on a balance of probabilities.....
191 Another factor which trial judges should consider in assessing whether the defence has raised evidence which would permit a properly instructed jury to find that the accused acted involuntarily on a balance of probabilities is motive. A motiveless act will generally lend plausibility to an accused's claim of involuntariness.....Dr. Murphy also noted that if a single person is both the trigger of the alleged automatism and the victim of the automatistic violence, the claim of involuntariness should be considered suspect. I agree that the plausibility of a claim of automatism will be reduced if the accused had a motive to commit the crime in question or if the "trigger" of the alleged automatism is also the victim. On the other hand, if the involuntary act is random and lacks motive, the plausibility of the claim of automatism will be increased;
192 To sum up, in order to satisfy the evidentiary or proper foundation burden in cases involving claims of automatism, the defence must make an assertion of involuntariness and call expert psychiatric or psychological evidence confirming that assertion. However, it is an error of law to conclude that this defence burden has been satisfied simply because the defence has met these two requirements. The burden will only be met where the trial judge concludes that there is evidence upon which a properly instructed jury could find that the accused acted involuntarily on a balance of probabilities. In reaching this conclusion, the trial judge will first examine the psychiatric or psychological evidence and inquire into the foundation and nature of the expert opinion. The trial judge will also examine all other available evidence, if any. Relevant factors are not a closed category and may, by way of example, include: the severity of the triggering stimulus, corroborating evidence of bystanders, corroborating medical history of automatistic-like dissociative states, whether there is evidence of a motive for the crime, and whether the alleged trigger of the automatism is also the victim of the automatistic violence. I point out that no single factor is meant to be determinative.
[9] Finally, the leading international authority on the subject of non-insane automatism is Bratty v AG for Northern Ireland (1963) All E.R. 523 (House of Lords), a case in which Lord Denning stated that automatism exists when the defendant is unable to control his muscles because they acted without the control of his mind. In these circumstances he will not be held blameworthy:
…'automatism' - means an act which is done by the muscles without any control by the mind such as a person who is not conscious of what he is doing such as an act done whilst suffering from concussion or whilst sleepwalking. ... . [However] to prevent confusion it is to be observed that in the criminal law an act is not to be regarded as an involuntary act simply because the doer does not remember it... Nor is an act to be regarded as an involuntary act simply because the doer could not control his impulse to do it.
Analysis
[9] While the ultimate burden rests with the Crown of proving every element of the offence beyond a reasonable doubt, I have concluded that the defendant has not established a proper evidentiary foundation for a defence of automatism in accordance with the Supreme Court's decision in Stone, the leading authority in Canada on the subject. The "defence must make an assertion of involuntariness and call expert psychiatric or psychological evidence confirming that assertion". Dr. Carlen's evidence at its highest was equivocal on the subject of involuntariness: "whether he had no voluntary control over that action is hard to be absolutely sure of." The problem here is that lack of volition is the rationale for the defence, thus eliminating the possibility of relying on the defence of automatism in cases where cognition was impaired but the conduct was voluntary. The only conclusion available therefore is that the medical evidence in this case did not go far enough to establish the necessary evidentiary basis on a balance of probabilities to support an acquittal on a finding of automatism.
[10] Additionally, if the above conclusion is incorrect, I will weigh the evidence and make appropriate findings of credibility utilizing the formula in R. v. W.(D.), [1991] 1 S.C.R. 742, the leading decision of the Supreme Court of Canada on assessing guilt based on the credibility of witnesses in a criminal trial. I have made the appropriate adjustments to the formula to account for the evidentiary burden on the defendant with regard to the defence of automatism. In my view, the defendant has not satisfied the evidentiary burden of proving on a balance of probabilities that the assault on Keith Ryan was not a voluntary act, for the following reasons (based on "relevant factors" enumerated in Stone, above):
(1) The lack of severity of the triggering stimulus
Dr. Carlen agreed that the blow to Mr. Henry's head sustained in the face-first fall to the pavement resulted in a mild concussion but no loss of consciousness. While the symptoms of his concussion were said to be; headaches, memory loss, slowed reactions, dazed, and feeling "he was in a fog", Dr. Carlen agreed that Devon Henry was in control of his movements when he punched Keith Ryan and that he had an operating mind to the extent he could carry on a normal conversation with others before and after the assault. In spite of the concussion and the diagnosis of impaired consciousness, there were sufficient instances of normal functioning and interaction to eliminate any inferences of robotic or automaton-like behavior at the time of the assault;
(2) The lack of corroborating evidence of bystanders
Sgt. Correa described Mr. Henry at the 14 Division lunchroom as "more embarrassed"; "he kept referring to…my ego is more hurt than… my body." Parking Supervisor Greenaway describes Mr. Henry at that same location as seeming foggy, unresponsive, "you'd ask him a direct question and instead of getting a direct answer… he… kind of snap back and be able to say something." Parking Supervisor Molinaro stated that Mr. Henry looked the same all the time he was observed in the lunchroom: he just looked like he was just very tired, very lethargic" None of these observations, taken together, would be sufficient to raise an inference of robotic or automaton-like behavior at the time of the assault.
(3) Evidence of a motive for the crime
According to Stone, supra, the plausibility of a claim of automatism will be reduced if the accused had a motive to commit the crime in question or if the "trigger" of the alleged automatism is also the victim. On the other hand, if the involuntary act is random and lacks motive, the plausibility of the claim of automatism will be increased; in the instant case, the "trigger of alleged automatism is also the victim" rather than some random uninvolved individual. While one must be cautious in drawing inferences of motive, even Dr. Carlen agreed that the motive for the assault could have been revenge, particularly in view of his saying "Hey, remember me?" and punching Ryan in the face and ribs and disappearing. The point being made is that a claim of automatism would be more plausible if the offence committed was random and senseless.
(4) The defendant's acts seemed very goal-oriented
While automatistic situations involving hypnotism, concussion, and sleepwalking may often involve apparently deliberate and purposeful conduct, it is evident that the defendant's actions in this case required the exercise of an elaborate spectrum of executive decision-making functions. Over the course of about one hour after the concussion, Mr. Henry walked with and communicated with officers and supervisors without serious difficulty aside from "fogginess" and "fatigue", spoke at some length about what happened and what injuries he sustained, went to the washroom and asked when they were taking him to the hospital.
I do not accept Mr. Henry's evidence that he was walking around the station trying to clear his head and just happened to open the door to the room (on the first floor) where Mr. Ryan was being searched. He was initially taken to the second floor "guard room" or lunch room by Sgt. Correa and was told to stay there. He told Dr. Carlen that he was taken to the (search) room by two constables (where Ryan was being held), he said he hit him (Ryan) a few times in the stomach and he partially recognized the suspect. His "Agreed Statement of Facts" states that he stormed into the room, pushed past a constable and after saying "Hey, remember me?" punched Mr. Ryan in the face and ribs and disappeared. I will admit his statement to Dr. Carlen as an admission against interest and accept it as the more accurate version of what happened at the search room. There is no chance Dr. Carlen would have invented a version of events that portrays Mr. Henry as deliberately assaulting Mr. Ryan at the invitation of two officers.
All of these actions collectively create a picture of an individual who is in possession of his faculties and capable of engaging in fairly complex decision-making. The fact that at times he was exercising poor judgment, or that he was not able to remember all of his actions or that he was not able control his impulse to assault Ryan ─ are not reasons to regard his actions as involuntary acts as long as he was conscious of what he was doing at the time he was doing it. In my view, a reasonable inference can be drawn from all the evidence that the assault was the culmination of a series of conscious decisions. First, a suggestion was made to Mr. Henry; (1) he then made a decision to join the constables, and on arriving at the search room, (2) he decided to do what was expected: ― he recognized Ryan, he stormed into the search room, and (3) said "Hey, remember me?"… and..(4) struck a few blows and left.
In terms of the classical indicia of automatism, what is lacking here is ― a triggering event followed soon after by some element of externally-directed propulsion based on force of habit, basic human instinct or a mindless, uncontrollable, compulsion. The evidence in this case leads irresistibly to the conclusion that the assault took place because of the combined effect of the officers escorting him to the search room and Mr. Henry's willingness to strike Mr. Ryan a few times, not because Mr. Henry was in some type of non-volitional state, aimlessly wandering about the police station.
[11] Mr. Butt, counsel for the defendant, has made the intriguing submission ─ that I consider "cognitive impairment" as a sufficient level of incapacity to meet the evidentiary burden for automatism (as distinct from a total deprivation of these capacities) for two reasons: (1) medical science is not so sufficiently advanced as to be capable of determining what a voluntary action is and is not, and (2) to fulfill the promise of a common law defence…. that for all practical purposes is illusory. While one always welcomes a challenge, it must be recognized that as a member of a provincial court, I am bound by the principle of "stare decisis" to follow the law as determined by binding appellate authority ─ which is that ─ it is fundamental to a defence of automatism that the actor has engaged in unconscious, involuntary behavior and has no control over his actions: R. v. Rabey, [1980] 2 S.C.R. 513 (S.C.C.) ; R. v. Stone, supra.
[12] The concern about the practical obstacles to raising this defence is shared by many others. It is noteworthy that the Canadian Psychiatric Association finds fault with the judicially-defined concept of non-insane automatism:
The next point we would like to make is that automatism, the concept itself, assumes a dichotomy of the mind and body. When it is said the accused functions as an automaton, it is meant that the body is acting independently and separately from the mind. Such an assumption is erroneous. The behaviour and the function of the body is always governed by the mind, whether it is normal or disordered. [1]
[12] Professor Patrick Healey is also highly critical of the insurmountable challenges facing an accused in attempting to benefit from the defence of automatism following Stone, describing the majority judgment as narrowing "sane automatism to picayune indeterminacy":
According to the majority, evidence of involuntariness that apparently arises from some form of automatism raises a presumption of mental disorder against the accused. To displace that presumption and benefit from a defence of non-insane automatism, the accused must, first, satisfy an unusually weighty evidential burden before the trial judge and, second, meet a legal burden by persuading the jury on the balance of probabilities. Also unusually, the majority requires that the trial judge instruct the jury as to factors to consider in weighing the evidence. The initial presumption that automatism results from mental disorder is far removed from medical understanding of the subject. The majority states that a defence of non-insane automatism would be good only if the average person would have reacted to the external events in the same way. The chance of demonstrating this is, by definition, almost nil and so effectively eliminates the applicability of the defence. The reverse legal burden on the accused created in Stone violates the presumption of innocence as protected in the Canadian Charter of Rights and Freedoms. The majority then justifies its own Charter violation under section 1. [2]
Conclusion
[13] One can readily understand the challenges that defendants have to meet in asserting this defence. Nevertheless, considering the legal requirements found in the above-noted case authorities, and having weighed all of the available evidence, I have concluded that it has not been proven on a balance of probabilities that Devon Henry acted involuntarily in assaulting Keith Ryan and further, that notwithstanding the defence of automatism raised by the defendant, the Crown has, on all the evidence, proven voluntariness beyond a reasonable doubt and Mr. Henry will be found guilty of assaulting Keith Ryan.
[14] Finally, I would like to take this opportunity to express my appreciation to both counsel for their collaboration in streamlining the presentation of evidence in this case and for their thoughtful presentation and submissions.
P. Harris J.
December 13th, 2012.
Footnotes
[1] CANADA, Government of Canada, Response to the 14th Report of the Standing Committee on Justice and Human Rights: Review of the Mental Disorder Provisions of the Criminal Code, [Ottawa]: [Department of Justice Canada], November 2002, 36 p., available at http://canada.justice.gc.ca/en/dept/pub/tm_md/index.html (accessed on 8 November 2002);
[2] HEALY, Patrick, "Automatism Confined", (2000) 45 McGill Law Journal 87-105, at p. 92;