Court File and Parties

Court File No.: Halton Region, Central West Region 11-895

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Brandon Pike

Before: Justice Alan D. Cooper

Heard on: February 28, March 1, 4, April 5 & June 6, 2013

Reasons for Judgment released: October 31, 2013

Counsel:

• Amanda J. Camara for the Crown
• Monica A. K. Lipson for the accused Brandon Pike

Case History

The Incidents

[1] Heather Hames resided at 349 Rimmington Drive in Oakville on March 17, 2011. This street is in the area south of Dundas Street, and west of the 6th Line. At approximately 10:30pm, Ms. Hames had to go out to her car and noticed a shadowy figure across the street. A person was bent over in front of some bushes and appeared to be looking into a window of the townhouse at 348 Rimmington Drive. This is a semi-detached bungalow on the north side of the street. It is attached to 350 Rimmington and unit 348 is on the left side as one looks at the townhouse from the street. There is a garage attached to each unit.

[2] The shadowy figure was later identified as the defendant. When he saw Ms. Hames outside her residence he hid near the garage. When she went back inside she looked out and saw that the man had assumed his original position, but got spooked again by a truck on the street. He went back to the garage area. Ms. Hames then called the police, who arrived shortly after. Ms. Hames took a photo of the townhouse unit where the man had been. A month earlier, she had seen the same type of occurrence in front of the same unit.

[3] Olivia Wozniak was a resident of the townhouse being spied upon. She lived there with her sister Izabella and her parents, both of whom are deaf. The bedroom windows of both sisters were at the front of the home, with Olivia's on the right, and Izabela's on the left. At the time of her testimony, Olivia was 21 years old. She is a friend of the defendant's sister Michelle, and has known Mr. Pike for many years, as he lives down the street and around a bend. She has never been involved with him romantically.

The March 20, 2010 Incident

[4] On March 20, 2010, Olivia had been out and was dropped off at her home at 1:20 or 1:30am. As she was about to enter she noticed a key in the door and a pair of black shoes in front of the door, and the shoes looked familiar to her. Once inside, she saw a shadow and asked who it was. The defendant identified himself and said "I think I'm sleepwalking." Olivia said "I don't think sleepwalkers have a key and take their shoes off," and she told him to "get the fuck out." He was dressed all in black. Her parents were asleep but she told her sister what had happened. The matter was not reported to the police.

[5] In the morning, Olivia and Izabela went to the Pike home at 304 Rimmington Drive. Mr. Pike's parents were not home but the two women told his sister Michelle what he had done. Later in the day, his father came to the Wozniak residence and discussed what had happened.

[6] Olivia did not know how Brandon Pike had obtained the key to her house but thought her sister may have misplaced it. About two to four weeks prior to this incident, Olivia's parents told her someone had been in the house and had touched them. On that occasion, Olivia found the same black shoes on their front step, and knew they belonged to the defendant.

Olivia Wozniak's Testimony

[7] In cross-examination, Olivia said she was 18 years old in March of 2010. When growing up she was part of a group which included the defendant and his sister Michelle. Mr. Pike is 1 ½ years older than Olivia, and closer to Izabela's age. On March 20, 2010, she had been at a party and had consumed a mickey of vodka and was drunk. However, she said she was able to accurately recall the incident clearly. She remembered that Brandon had glasses on, that he was slow-moving, and looked dazed. She gave him his shoes back and told him to leave. The next day a new lock was installed on the front door. Although she used to associate with the defendant, Olivia had not seen him from 2006 until his entering her home on March 20.

Izabela Wozniak's Testimony

[8] Izabela Wozniak testified that on March 20, 2010, she got home from work shortly before Olivia came in to find Mr. Pike. She may have left the key in the door in error. She did not see the defendant but her sister told her everything, after waking her up. Olivia seemed sober to her. Izabela said she last associated with the defendant in 2006, and was just a friend, although he had expressed interest in taking her out. The next day she went with her sister to the Pike residence, and his father later came to their house to speak to them about Brandon. On March 17, 2011, she was home when the police had arrested the defendant outside her residence.

Police Arrest on March 17, 2011

[9] On March 17, 2011, after Heather Hames saw the stranger across from her residence and called the police, three Halton Regional police officers attended the scene. Mr. Pike was located on the east side of the adjoining unit. He was wearing glasses, a toque, a blue-sleeved sweater, and plaid pajama bottoms. When asked why he was there he said that he was just out walking, that he was looking for a cat named Oriole, and that he was there to apologize to two girls who lived in unit 348, who had been friends of his for years until a sleepwalking incident had occurred. The defendant wanted to speak to his father, so he was taken to his home. Then the defendant was arrested for trespassing at night.

The Charges

[10] Mr. Pike had the following five charges laid against him:

1. On March 17, 2011, he surreptitiously observed Izabela Wozniak, in circumstances that give rise to a reasonable expectation of privacy, when Izabela Wozniak was in a place in which she could reasonably expected to be nude, to wit: looking in her bedroom window, contrary to section 162(1)(a) of the Criminal Code.

2. On March 17, 2011, he prowled at night upon the property of Izabela Wozniak, situate at 348 Rimmington Drive, Oakville, near a dwelling house.

3. On March 20, 2010, he entered or was in the dwelling of Izabela Wozniak without lawful excuse and with intent to commit an indictable offence.

4. On March 20, 2010, he broke and entered into the dwelling house at 348 Rimmington Drive, Oakville, with intent to commit an indictable offence.

5. On March 20, 2010, he prowled at night upon the dwelling house of Izabela Wozniak.

Defence Evidence

Brandon Pike's Testimony

[11] Brandon Pike was the first of three defence witnesses to testify. Before he testified, the first charge against him was dismissed after a motion by the defence. Mr. Pike was 21 years old when he gave evidence. He recounted that at age six he had nightmares following the death of his great grandmother. He slept with his parents after that. When he was 13 he began to have nightmares and had a problem getting back to sleep. He experienced an episode at his father's parents' cottage in which he had been sleeping but had a dream that there were spiders on him. He jumped out of bed and threw the blanket off. He woke up shortly after and his siblings told him what had happened.

[12] In grade nine, he began to experience sleep problems. He did not enjoy school. Before he was placed on medications, he would go to bed midnight and one am. It would take him half an hour to one hour to get to sleep, and he would wake up often. He would then have trouble getting back to sleep. He would get about six hours sleep per night. He also had asthma and used a puffer.

[13] In March, 2008, he dropped out of grade 11, due to his anxiety level. In May, his maternal grandfather got cancer and passed away in August. Then two close friends moved away. In September of 2008, he went to Nelson High School in Burlington, in a special class designed to help with anxiety issues.

[14] In May of 2009, the family cat had to be euthanized. In the fall, he went to White Oaks High School, his former school, but had panic attacks and was terrified of dying. He dropped out and his anxiety got worse and he was unable to sleep. His family physician, Dr. Glover, referred him to Dr. Bradley, a child psychiatrist, who wanted him to take Prozac, but his mother did not. His family doctor later put him on medications for anxiety, panic attacks, and depression. He was referred to Dr. Gilbert, a psychiatrist, who changed the medications to Cymbalta, Clonazepam, and Zopiclone.

[15] On March 19, 2010, he had taken his medications, including Zopiclone. He went to bed and was to get up at 8am for league bowling. He remembered going to bed but when he woke up he was in the Wozniak home in the early morning of the 20th, wearing the shorts and T-shirt he had worn going to bed. He was aware of being confronted by Olivia and remembers walking home and telling his mother what had happened. His family installed a door alarm to prevent him from leaving the home again during a sleepwalking episode. He was taken off the Zopiclone shortly after. He had no memory of having a key to the Wozniak home.

[16] In his testimony, the defendant said he was not sleepwalking during the later incident on March 17, 2011, and the defence of non-insane automatism is being advanced only for the earlier incident on March 20, 2010.

[17] Mr. Pike said there have been mental health difficulties in his family. His uncle is bipolar and has a split personality. His mother did the laundry one night and did not remember doing so. His father, mother, and his three siblings have all suffered from depression. His father and his father's brother have experienced panic attacks.

[18] Under cross-examination, the defendant repeated that he was sleepwalking on March 20, 2010, but when he woke up he left because he realized what he was doing was wrong. As for the later event on March 17, 2011, he agreed that he waited outside the Wozniak home in the hope that he would see either sister undressing. He said he had romantic and sexual feelings about both women. He said he had no key to the home but was familiar with its layout, having been there several times in the past. He said the only medication he uses at present is for panic attacks, and he no longer takes Zopiclone.

Karen Pike's Testimony

[19] Karen Pike, Brandon's mother, gave evidence and said that Brandon is the youngest of her four children. She confirmed her son's evidence as to his medical and mental history, including sleep problems. She also said her brother and sister have told her they have sleepwalked. She herself has suffered depression and sleep problems and once did laundry without remembering she had done it.

[20] On Saturday, March 20, 2010, the defendant came home in the early morning and woke her up. He said he had been sitting on a friend's couch, and a girl had asked him to leave. He was panicky, shaking, and his skin was cold. The next day, she took him to his psychiatrist Dr. Glover, and she changed his medications. The family also got a door alarm, in case the defendant walked in his sleep again. She only witnessed her son sleepwalk once in the past, and that is when he was younger and did not know how he got to a couch where he woke up.

[21] Mrs. Pike testified that Brandon and her have never discussed the events of the second incident on March 17, 2011.

Dr. Joseph Barbera's Expert Evidence

[22] The last defence witness was Dr. Joseph Barbera, a Toronto psychiatrist, who was qualified to testify as an expert on sleep disorders, including sleepwalking. His curriculum vitae and report were introduced as exhibits. He interviewed the defendant and his parents, reviewed the Crown disclosure, conducted a sleep study of the defendant, and reviewed a forensic psychiatric report of Dr. Mark Pearce.

[23] Dr. Pearce is a staff psychiatrist in the Law and Mental Health Program at the Centre for Addiction and Mental Health (CAMH) in Toronto. He is also an Assistant Professor at the University of Toronto. Dr. Pearce met with Mr. Pike on July 27, 2011, and prepared a report dated January 28, 2012, which was introduced into evidence. Dr. Barbera testified that Dr. Pearce referred the defendant to him because he felt that Dr. Barbera was better qualified to testify concerning sleep disorders and sleepwalking.

[24] Dr. Barbera confined his opinion to the incident on March 20, 2010. He was aware of the details of the March 17, 2011 event, and felt that the facts of that event did prejudice an opinion of sleepwalking on March 20, 2010, but did not rule it out.

[25] Dr. Barbera testified that sleepwalking does tend to run in families. This could be because of a genetic predisposition or a predisposition caused by medications. He felt that the defendant's history was consistent with his being someone who was capable of sleepwalking. Dr. Pearce had ruled out the possibility of major mental disorders, including a personality disorder. Dr. Barbera felt that it was the defendant's consumption of the drug Zopiclone which had brought on the sleepwalking episode. On March 20, 2010, Mr. Pike was on more than twice the standard dosage of this drug, and one of the known side effects of this has been sleepwalking, or carrying out other physical activities without being aware of doing so.

[26] In Dr. Barbera's opinion, the defendant was sleepwalking at the time he entered the Wozniak home, because of the effect of zopiclone on him. It was the main reason for this episode. He conceded that the defendant may have a genetic predisposition to sleepwalk without this drug, but was of the opinion that the incident would not have been as severe. The dazed look on Mr. Pike's face, as observed by Olivia Wozniak, was consistent with sleepwalking.

[27] Dr. Barbera felt it was likely that Mr. Pike was sleepwalking at the time or recovering from an incident of sleepwalking. The key in the door and the shoes left at the front of the house suggest inappropriate behaviour which are hallmarks of sleepwalking. He said that most incidents occur one to two hours after falling asleep.

[28] Dr. Barbera testified that individuals can carry out complex behaviour and still be sleepwalking, particularly under the influence of drugs. He acknowledged that his opinion could be wrong, but it is his considered professional opinion after considering all the circumstances in this matter.

[29] The Crown did not call an expert in rebuttal.

The Law

The Defence of Automatism

[30] The defence of automatism is a defence to a criminal charge where the mind of the individual does not accompany the physical act. The applicable Canadian authorities further refine this definition. In R. v. Stone, [1999] S.C.J. No. 27, Bastarache J., writing for the majority, at para 161, stated as follows:

Accordingly, a successful claim of insane automatism will trigger s. 16 of the Code and result in a verdict of not criminally responsible on account of mental disorder. Thus, although courts to date have spoken of insane "automatism" and non-insane "automatism" for purposes of consistency, it is important to recognize that in actuality true "automatism" only includes involuntary behaviour which does not stem from a disease of the mind. Involuntary behaviour which results from a disease of the mind is more correctly labelled a s. 16 mental disorder rather than insane automatism. For purposes of consistency, I will continue to refer to both as "automatism". However, I believe the terms "mental disorder" automatism and "non-mental disorder" automatism rather than "insane" automatism and "non-insane" automatism more accurately reflect the recent changes to s. 16 of the Code, and the addition of Part XX.1 of the Code.

[31] Non-mental automatism entitles a defendant to an outright acquittal, whereas a finding of mental order automatism would result in a verdict of not criminally responsible under section 16(1) of the Criminal Code. Sections 672.34 and 672.54 would also be applicable. These provisions are set out below:

Defence of mental disorder

16. (1) No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.

Presumption

(2) Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection (1), until the contrary is proved on the balance of probabilities.

Burden of proof

(3) The burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal responsibility is on the party that raises the issue.

Verdict of not criminally responsible on account of mental disorder

672.34 Where the jury, or the judge or provincial court judge where there is no jury, finds that an accused committed the act or made the omission that formed the basis of the offence charged, but was at the time suffering from mental disorder so as to be exempt from criminal responsibility by virtue of subsection 16(1), the jury or the judge shall render a verdict that the accused committed the act or made the omission but is not criminally responsible on account of mental disorder.

Dispositions that may be made

672.54 Where a court or Review Board makes a disposition under subsection 672.45(2) or section 672.47 or 672.83, it shall, taking into consideration the need to protect the public from dangerous persons, the mental condition of the accused, the reintegration of the accused into society and the other needs of the accused, make one of the following dispositions that is the least onerous and least restrictive to the accused:

• (a) where a verdict of not criminally responsible on account of mental disorder has been rendered in respect of the accused and, in the opinion of the court or Review Board, the accused is not a significant threat to the safety of the public, by order, direct that the accused be discharged absolutely;

• (b) by order, direct that the accused be discharged subject to such conditions as the court or Review Board considers appropriate; or

• (c) by order, direct that the accused be detained in custody in a hospital, subject to such conditions as the court or Review Board considers appropriate.

Leading Cases on Automatism

[32] The best known case of sleepwalking in Canada is that of R. v. Parks, [1992] S.C.J. No. 71, in which the defendant apparently without motive, drove 25 kilometers to the residence of his in-laws, and stabbed his father-in-law to death, and badly injured his mother-in-law. The defence of non-mental disorder automatism was left with the jury and Mr. Parks was found not guilty by a jury.

[33] The later case of R. v. Stone, [1999] S.C.J. No. 27, is now the leading case of automatism, and the principles in that decision apply to sleepwalking cases. In R. v. Luedecke, 2008 ONCA 716, [2008] O.J. No. 4049 (C.A.), Doherty J.A. set out the importance of Stone concerning the law of automatism. He stated as follows:

R. v. Stone, Automatism Reconsidered

[80] I come now to R. v. Stone. The accused stabbed his wife 47 times. At his murder trial, he claimed that he was in a disassociative state brought on by the "psychological blows" inflicted by his wife. According to the appellant, in the hours prior to the homicide, his wife had made many insulting and derisive comments toward him. The accused argued that his actions were involuntary and not the product of a disease of the mind. At trial, the defence sought an acquittal and alternatively a finding of NCR-MD. The jury convicted the accused of manslaughter and the British Columbia Court of Appeal upheld the conviction.

[81] Bastarache J., at p. 419, speaking for a five-person majority, announced that he would "develop a general test applicable to all claims of automatism." He proceeded to substantially rewrite the case law. Bastarache J. began by determining that the onus of proof should be on the accused to demonstrate on the balance of probabilities that his actions were involuntary. This reversal of the onus of proof on an essential element of the offence is perhaps the most controversial aspect of the ruling in Stone. It is not, however, directly germane to the outcome of this appeal.

[82] The second part of the reasons of Bastarache J. is central to the outcome of this appeal. Bastarache J. held that in those cases where an accused had established a proper evidentiary basis to put voluntariness in issue, the trial judge was required to decide at the end of the evidence whether the claim amounted to one of non-mental disorder automatism or mental disorder automatism. If the claim was properly characterized as mental disorder automatism an acquittal was not available and the trier of fact should be instructed only on the defence of not criminally responsible by reason of mental disorder.

[83] Bastarache J. acknowledged that the distinction between non-mental disorder automatism and mental disorder automatism depended on the definition of the phrase "disease of the mind". After referring to the position taken by the Canadian Psychiatric Association before a committee of the House of Commons to the effect that all automatism claims should be treated as mental disorder claims, Bastarache J. said at pp. 432-33:

I take judicial notice that it will only be in rare cases that automatism is not caused by mental disorder. Indeed, since the trial judge will have already concluded that there is evidence upon which a properly instructed jury could find that the accused acted involuntarily on a balance of probabilities, there is a serious question as to the existence of an operating mind by the time the disease of the mind is considered. The foregoing lends itself to a rule that trial judges start from the proposition that the condition the accused claims to have suffered from is a disease of the mind. They must then determine whether the evidence in the particular case takes the condition out of the disease of the mind category.

[84] Bastarache J. took the position that anyone who committed what would otherwise be a criminal act and led evidence capable of establishing that his or her actions were involuntary was presumptively suffering from a disease of the mind. This presumption fundamentally changes the legal landscape set out in Parks where, it will be recalled, the non-mental disorder automatism claim succeeded because the Crown could not prove that the accused's condition constituted a disease of the mind.

[85] Like La Forest J. in Parks, Bastarache J. would not accept that any single approach or criterion could be used to distinguish between non-mental disorder automatism and mental disorder automatism. Bastarache J. described a "holistic approach" that took into consideration the cause of the condition, the continuing danger presented to the public, the due administration of justice policy concerns identified in earlier cases and any other factors made germane to the inquiry by the facts of the particular case. He said at p. 441:

[T]he fundamental question of mixed law and fact which is at the centre of the disease of mind inquiry: whether society requires protection from the accused and, consequently, whether the accused should be subject to evaluation under the regime contained in Part XX.I of the Criminal Code. [Emphasis added.]

[86] Bastarache J.'s consideration of the continuing danger factor is germane to this appeal. He observes at p. 439:

In examining the continuing danger factor, trial judges may consider any of the evidence before them in order to assess the likelihood of recurrence of violence. However, two issues will be particularly relevant to the continuing danger factor: the psychiatric history of the accused and the likelihood that the trigger alleged to have caused the automatistic episode will recur. [Emphasis added.]

[87] Bastarache J. explained that a documented history of automatistic-like disassociative states suggested that the condition suffered by the accused was a recurring one. The likelihood of recurrence and more specifically the recurrence of violence during an automatistic state was also enhanced by the fact that on at least one prior occasion, the occasion leading to the criminal charge, the accused had engaged in violent conduct while in an automatistic state. The prior history combined with the prior violent incident indicated that the accused's condition was "likely to be classified as a disease of the mind": Stone, at p. 439.

[88] In addressing the significance of the likelihood of the recurrence of the conditions that triggered the automatistic state, Bastarache J. noted that it was difficult to predict the actual recurrence of violence. However, the predictability of the automatistic state in which the violence occurred depended on the likelihood of the recurrence of the triggering events. He said at p. 440:

[A]n assessment of the likelihood that the particular accused will again encounter the trigger alleged to have caused the current automatistic episode, or a similar one of at least equal severity, may assist a judge in assessing the continuing danger factor. The greater the anticipated frequency of the trigger in the accused's life, the greater the risk posed to the public and, consequently, the more likely it is that the condition alleged by the accused is a disease of the mind. [Emphasis added.]

[89] Bastarache J. then applied his "holistic approach" to the evidence in the case before him. He stressed the absence of any extraordinary external event that could cause a normal person to disassociate. In the absence of any such explanation, the accused's condition was presumptively a product of a disease of the mind.

[90] Stone alters the approach to the characterization of automatism as non-mental disorder automatism or mental disorder automatism in at least two significant ways. First, after Stone the trial judge must begin from the premise that the automatism is caused by a disease of the mind and look to the evidence to determine whether it convinces him or her that the condition is not a "disease of the mind". This approach is in direct contrast with Parks where the non-mental disorder automatism claim succeeded because the Crown failed to prove that the condition was caused by a disease of the mind.

[91] Second, although Stone accepts the multi-factored approach to the policy component of the characterization of the automatism set out in Parks, it refocuses the continuing danger aspect of that approach. After Stone, in evaluating the risk of repetition and hence the danger to the public, trial judges must not limit their inquiry only to the risk of further violence while in an automatistic state. Rather, trial judges must examine the risk of the recurrence of the factors or events that triggered the accused's automatistic state. Commenting on this refinement of the continuing danger inquiry Professor Paciocco observes in "Death by Stone-ing: The Demise of the Defence of Simple Automatism" at p. 281:

This part of the judgment effectively reverses Parks. The triggers for Parks' somnambulism or sleep-walking included stress, fatigue, insomnia and exercise. There is no point in speaking of the likelihood of such triggers being present in the future. It is a veritable certainty that they will be. It is clear that had Parks been tried using the Stone test, the only defence that would have been left to the jury would be "mental disorder automatism". [Emphasis added.]

[92] Professor Paciocco's prediction is largely borne out by the Canadian parasomnia cases that post-date Stone. I am aware of five including this case. In the other four cases, the automatistic states flowing from the parasomnia were held to constitute diseases of the mind: see Canada v. Campbell (2000), 35 C.R. (5th) 314 (Ont. S.C); R. v. Balenko, [2000] Q.J. No. 717 (C.Q. (Crim. Div.)); R. v. Romas (2002), 2002 BCPC 694, 6 M.V.R. (5th) 101 (B.C. Prov. Ct.); and R. v. Churchyard, an unreported decision of Smith J. released November 19, 2003 (Ont. S.C.).

[93] The majority position in Stone signals a strong preference for a finding of NCR-MD in cases where an accused establishes that he or she was in a disassociative state and acted involuntarily. Social defence concerns, inevitably present in such cases, must to a large degree drive the analysis in automatism cases after Stone.

[94] The strong preference for an NCR-MD verdict expressed in Stone is explained in part by the very different treatment accorded those found NCR-MD compared to the historical treatment provided to those found not guilty by reason of insanity, as was the case at the time of the trial in Parks. Prior to 1991, persons found not guilty by reason of insanity were detained indefinitely at the pleasure of the Lieutenant Governor in Council. The provisions of Part XX.I of the Criminal Code not only disposed of the insanity nomenclature but completely changed the post-verdict treatment of those found NCR-MD: S.C. 1991, c. 43.

[95] I do not think it is coincidental that Stone and Winko, the leading case on the interpretation of Part XX.I of the Criminal Code, were heard by the same nine judges about ten days apart, and decided about three weeks apart several months later. It is hard to resist the inference that Stone was written having in mind what the court would say three weeks later when it released its decision in Winko.

[96] In Winko (1999), 135 C.C.C. (3d) 129 (S.C.C.), McLachlin J. explained the operation of Part XX.I this way at para. 43:

In summary, the purpose of Part XX.I is to replace the common law regime for the treatment of those who offend while mentally ill with a new approach emphasizing individualized assessment and the provision of opportunities for appropriate treatment. Under Part XX.I, the NCR accused is neither convicted nor acquitted. Instead, he or she is found not criminally responsible by reason of illness at the time of the offence. This is not a finding of dangerousness. It is rather a finding that triggers a balanced assessment of the offender's possible dangerousness and of what treatment-associated measures are required to offset it. Throughout the process the offender is to be treated with dignity and accorded the maximum liberty compatible with Part XX.I's goals of public protection and fairness to the NCR accused. [Emphasis added.]

[97] Winko provides a detailed examination of s. 672.54, the provision governing the dispositions available with respect to persons found NCR-MD. As interpreted in Winko, s. 672.54 requires the absolute discharge of anyone found NCR-MD unless the court or the Review Board determines that the individual poses "a significant threat to the public". McLachlin J. said at para. 52:

This interpretation of s. 672.54 eliminates any need for the NCR accused to prove lack of dangerousness and relieves him or her of any legal or evidentiary burden. If the evidence does not support the conclusion that the NCR accused is a significant risk, the NCR accused need do nothing; the only possible order is an absolute discharge.

[98] The risk determination required by s. 672.54 cannot not be based on speculation or assumptions about how persons with mental disorders behave. There must be evidence establishing the significant risk. That risk must be a real risk of criminal conduct involving physical or psychological harm to individuals in the community. A risk of trivial harm or miniscule risk of significant harm will not suffice to deprive the individual of his or her liberty: Winko, at para. 57.

[99] As explained in Winko, there are also significant procedural safeguards built into Part XX.I of the Criminal Code. A person found NCR-MD must receive a timely disposition hearing before either the court or the Review Board. He or she has full access to the bail provisions pending that hearing. The disposition hearing is not adversarial but provides for a full and wide-ranging inquiry into all factors relevant to the appropriate disposition. The disposition hearing allows for the input of medical professionals who will have had a chance to assess the person found NCR-MD and to develop opinions based on an up-to-date assessment of that person's condition. Where, as in most cases, the disposition hearing is before the Review Board, the panel will include a psychiatrist.

[100] A combined reading of Stone and Winko yields a comprehensive response to automatism claims. At the pre-verdict stage, social defence concerns dominate. Those concerns focus on the risk posed by the potential recurrence of the conduct in issue. Where that risk exists, the risk combined with the occurrence of the conduct that led to the criminal proceedings will almost always justify further inquiry into the accused's dangerousness so as to properly protect the public.

[101] In the post-verdict stage, however, the emphasis shifts to an individualized assessment of the actual dangerousness of the person found NCR-MD. Where that personalized assessment does not demonstrate the requisite significant risk, the person found NCR-MD must receive an absolute discharge. Even where a significant risk exists, the disposition order must be tailored to the specific circumstances of the individual and must, to the extent possible, minimize the interference with that individual's liberty.

[102] Re Romas, [2002] B.C.R.B.D. No. 66 (British Columbia Review Board), provides an example of the integration of the Stone approach to automatism and the Winko approach to Part XX.I of the Criminal Code. At trial (R. v. Romas), the accused was charged with an assault-related offence and claimed to have acted as a result of Confusional Sleep Arousal, a sleep disorder. Applying Stone, the accused was found NCR-MD. The trial judge referred the matter to the British Columbia Review Board for disposition. About six weeks later the Board, by a majority vote, ordered the accused absolutely discharged. In so ordering, the Board referred to several factors, all of which would seem applicable to the respondent assuming his current condition is consistent with that described at trial.

Application of Stone

[34] As a result of Stone, the defence of non-mental disorder automatism had certain restrictions placed upon it which did not previously exist. It would appear that this was a judicial reaction to the Parks decision.

[35] The new "holistic approach" in Stone takes into consideration a host of factors, as pointed out in paragraph 85 of Luedecke.

[36] Bastarache J. made it clear in Stone that the legal definition of automatism and its components, is a question of law, no matter what the medical or psychiatric definition may be. He said the following:

197 Taken alone, the question of what mental conditions are included in the term "disease of the mind" is a question of law. However, the trial judge must also determine whether the condition the accused claims to have suffered from satisfies the legal test for disease of the mind. This involves an assessment of the particular evidence in the case rather than a general principle of law and is thus a question of mixed law and fact. See Southam, supra, at paras. 35 and 36. The question of whether the accused actually suffered from a disease of the mind is a question of fact to be determined by the trier of fact. See Rabey (S.C.C.), supra, at p. 519, per Ritchie J.; Parks, supra, at p. 897, per La Forest J.; and Bratty, supra, at p. 412, per Lord Denning.

198 In response to the above-mentioned proposed revisions to the Code regarding automatism, the Canadian Psychiatric Association submitted a Brief to the House of Commons Standing Committee on Justice and the Solicitor General. In this brief, the Association, on behalf of its 2,400 members nationwide, suggested that from a medical perspective, all automatism necessarily stems from mental disorder. Accordingly, the Association recommended that non-mental disorder automatism be eliminated and all claims of automatism be classified as mental disorders.

199 Since mental disorder is a legal term, the opinion of the Canadian Psychiatric Association, while relevant, is not determinative of whether two distinct forms of automatism, mental disorder and non-mental disorder, should continue to be recognized at law. In my opinion, this Court should not go so far as to eliminate the defence of non-mental disorder automatism as the Association suggests. However, I take judicial notice that it will only be in rare cases that automatism is not caused by mental disorder. Indeed, since the trial judge will have already concluded that there is evidence upon which a properly instructed jury could find that the accused acted involuntarily on a balance of probabilities, there is a serious question as to the existence of an operating mind by the time the disease of the mind issue is considered. The foregoing lends itself to a rule that trial judges start from the proposition that the condition the accused claims to have suffered from is a disease of the mind. They must then determine whether the evidence in the particular case takes the condition out of the disease of the mind category. This approach is consistent with this Court's decision in Rabey, supra.

Analysis

[37] The evidence of Doctor Barbera is very convincing, and I accept that because of Mr. Pike's particular personality, the effect of Zopiclone may well have caused him to act in a state of automatism on March 20, 2010. It is conceded that the defendant was not in such a state on March 17, 2011. This would seem to show that his underlying drive to go to the Wozniak home to see Olivia and Izabela Wozniak was a powerful force, whether he was in a state of automatism or not.

[38] Therefore, applying the holistic approach of Bastarache J. in Stone, a major concern in this case is the continuing danger and public safety aspects of Mr. Pike's behaviour, even though no violence was inflicted or threatened. Breaking and entering a dwelling place carries a potential maximum life sentence. The medical evidence is helpful but not determinative.

[39] After reviewing all of the evidence and submissions, and applying the principles set out in Stone and in Luedecke, it is my finding that Brandon Pike was acting in a state of automatism on March 20, 2010. It is my view that he was suffering from a disease of the mind at the time, even though his behaviour was exacerbated by the effects of Zopiclone. Therefore, he was in a state of mental disorder automatism, and not criminally responsible under section 16(1) of the Criminal Code. This finding would apply to counts 3, 4, and 5 on the information. Ms. Lipson, in her written submissions, contended that there was no proof, concerning count 5, that the defendant prowled near the Wozniak dwelling. It is my view that since he was found prowling inside the home, then he must have first prowled outside.

[40] As for count 2, prowling by night near the Wozniak dwelling on March 17, 2011, the Crown has proven the guilt of Mr. Pike beyond a reasonable doubt.

Conclusion

[41] Mr. Pike was previously found not guilty of count 1. He is now found guilty of count 2 and not criminally responsible for counts 3, 4, and 5.

Released: October 31, 2013

Signed: "Justice Alan D. Cooper"