Supreme Court of Canada

Rabey v. R., [1980] 2 S.C.R. 513

Date: 1980-07-18

Wayne Kenneth Rabey (Plaintiff) Appellant;

and

Her Majesty The Queen (Defendant) Respondent.

1980: February 6; 1980: July 18.

Present: Martland, Ritchie, Pigeon, Dickson, Beetz, Estey and McIntyre JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Criminal law—Defence—Non-insane automatism—Insanity—Disease of the mind—Question of law—Criminal Code, R.S.C. 1970, c. C-34, ss. 16, 542, 545.

At the time of the alleged offence, the appellant, twenty years of age, was a student at the University of Toronto and shared a number of classes with the complainant for whom he began to develop strong feelings that were not reciprocated. While flipping through the complainant’s books, the appellant found a letter she had written to a female friend in which she described him as one in a “bunch of nothings”. The appellant was hurt and angry as he read the letter. The following morning, he removed a rock sample of galena from the geology lab. At noon, he met the complainant by chance and, as they were talking to each other, the appellant suddenly grabbed her around the arms and struck her on the head. She lost consciousness momentarily. When she recovered consciousness, he was choking her… The appellant advanced the defence of non-insane automatism. He was acquitted at trial, the trial judge finding that the appellant was not insane within the meaning of s. 16 of the Criminal Code and that he had acted in a state of automatism brought about by an external cause. On appeal to the Ontario Court of Appeal, the acquittal was reversed and a new trial ordered, the Court holding that the psychological blow suffered was not an externally originating cause of the dissociative state.

Held (Dickson, Estey and Mclntyre JJ., dissenting): The appeal should be dismissed.

Per Martland, Ritchie, Pigeon and Beetz JJ.: The meaning of the word “automatism”, in any event so far as it is employed in the defence of non-insane 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. What is said here is that, although the defence of non-insane automatism is available to the appellant, he was not suffering from a disease of the mind and was therefore not insane

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and could not be committed to an institution. The central question in deciding any case involving the defence of automatism is whether or not the accused was suffering from a disease of the mind. The opinions of psychiatrists go no further than characterizing the condition in which the appellant was found as being “a dissociative state” but it is clear that the question of whether or not such a state amounts to “a disease of the mind” is a question of law for the judge to determine. In general, the distinction to be drawn is between a malfunctioning of the mind arising from some cause that is primarily internal to the accused, as opposed to a malfunctioning of the mind, which is the transient effect produced by some specific external factor and which does not fall within the concept of disease of the mind. The ordinary stresses and disappointments of life which are the common lot of mankind do not constitute an external cause constituting an explanation for a malfunctioning of the mind which takes it out of the category of a “disease of the mind”.

Here, it seems that the accused’s infatuation with the complainant had created an abnormal condition in his mind under the influence of which he acted unnaturally and violently to an imagined slight to which a normal person would not have reacted in the same manner. The confinement to an institution does not involve gross unfairness to the appellant for, under ss. 545 and 547 of the Criminal Code, the Lieutenant-Governor may order the discharge of the person found not guilty.

Per Dickson, Estey and Mclntyre JJ., dissenting: The issue in this appeal is whether automatism resulting from a “psychological blow” is available to an accused in answer to a charge of causing bodily harm with intent to wound. The theory of the defence was that the appellant’s behavior was caused by a psychological blow, an intense emotional shock which induced a “dissociative state”, during which for a time, the appellant was neither conscious of nor able to control his conduct, so that it was involuntary. This is sometimes spoken of as non-insane automatism, to distinguish it from the cases in which the state of automatism is attributable to disease of the mind. The defences of automatism and insanity are separate and distinct. In the case of insanity, the defect of the understanding must originate in the disease of the mind, whereas in the defence of automatism the criminal law is not concerned with any question of the disease of the mind. Here, medical examinations disclosed no evidence of neurological disease and no indication of psychotic process, and the Crown did not challenge the finding of automatism. The only question for decision is whether, having found automatism, the

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trial judge was bound in law to find that the appellant was a proper subject for indefinite detention as an insane person or, in other words, whether the accused, having acted in a state of unconsciousness while in a transitory mental state, was suffering from a disease of the mind and had to be committed to an institution.

The first principle fundamental to our criminal law which governs this appeal is that no act can be a criminal offence unless it is done voluntarily. The prosecution must prove the state of mind of the accused. The circumstances are normally such as to permit a presumption of volition and mental capacity. That is not so when the accused, as here, has placed before the court evidence sufficient to raise an issue that he was unconscious of his actions at the time of the alleged offence. No burden of proof is imposed upon an accused raising such defence beyond pointing to facts which indicate the existence of such a condition.

The second principle is that no person found not guilty by reason of insanity should be committed to a hospital for the criminally insane unless he suffers from disease of the mind in need of treatment or likely to recur. Here, on medical evidence accepted by the trial judge, the prospect of a recurrence of dissociation is extremely remote. There was no finding that the appellant suffered from psychosis, neurosis or personality disorder. He does not have an organic disease of the brain. This was an isolated event. The appellant has already spent several weeks in a mental institution undergoing psychiatric, neurological and psychological assessment, the result of which did not indicate need for treatment. There are undoubtedly policy considerations to be considered, such as the in terrorem argument that the floodgates will be raised if psychological blow automatism is recognized in law.

There are competing policy interests. Where the condition is transient rather than persistent, unlikely to recur, not in need of treatment and not the result of self-induced intoxication, the policy objectives in finding such a person insane are not served. Such a person is not a danger to himself or to society generally. The notion cannot be accepted, that an extraordinary external event, i.e., an intense emotional shock, can cause a state of dissociation or automatism, if, and only if, all normal persons subjected to that sort of shock would react in that way. The inquiry is directed to the accused’s actual

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state of mind. It is his subjective mental condition with which the law is concerned. Nor can it be accepted that whether an automatic state is an insane reaction or a sane reaction may depend upon the intensity of the shock. In principle, the defence of automatism should be available whenever there is evidence of unconsciousness throughout the commission of the crime that cannot be attributed to fault or negligence on the part of the accused. Such evidence should be supported by expert medical opinion that the accused did not feign memory loss and that there is no underlying pathological condition which points to a disease requiring detention and treatment.

[R. v. K. (1970), 1970 CanLII 431 (ON SC), 3 C.C.C. (2d) 84; Bratty v. A.G. Northern Ireland, [1963] A.C. 386, referred to.]

APPEAL from a judgment of the Court of Appeal for Ontario¹, allowing an appeal from the acquittal of the appellant by a Country Court judge and ordering a new trial. Appeal dismissed, Dickson, Estey and Mclntyre JJ. dissenting.

Michael A. Wadsworth, for the appellant.

Douglas C. Hunt, for the respondent.

The judgment of Martland, Ritchie, Pigeon and Beetz JJ. was delivered by

RITCHIE J.—This is an appeal from a judgment of the Court of Appeal for Ontario whereby that Court set aside the appellant’s acquittal at trial for “causing bodily harm with intent to wound”. The appellant had, at the same time, been charged with having a rock in his possession “for the purpose of committing the offence of wounding” but no appeal was taken from his acquittal on this charge.

The circumstances under which the alleged offences were committed are recounted with accuracy in the reasons for judgment prepared for delivery by my brother Dickson in this case which I have had the advantage of reading and also in the judgment delivered by Mr. Justice Martin on behalf of the Court of Appeal for Ontario. An “Agreed Statement of Facts” has also been filed

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as a part of the record in these proceedings and, when read together with the factual analyses provided by the judges concerned, it becomes plain that there is no dispute as to the behaviour of the appellant on February 28 and March 1, 1974. On the former date, he had agreed to help a girl friend with some work which she was doing for a geology class of which they were both members and in the course of the afternoon he had access, while he was alone, to the girl’s notebook in which he found a letter written to one of her friends disclosing that she considered other members of the opposite sex more exciting and desirable than the appellant to whom she referred somewhat obliquely as “a nothing”.

It appears to me to be important to note at this stage that it is agreed by paragraph 5 of the Agreed Statement of Facts that “The appellant had never dated any other girl for any length of time and had only a minimal amount of sexual experience. An introvert, he was infatuated with the attractive outgoing” (girl). In any event, the appellant took the letter out of his friend’s notebook and taking it home with him he appears to have brooded on it during the evening and underlined certain portions.

On the following day (March 1), the appellant had arranged to watch a friend play a game of squash at about noon and on his way to the squash courts “quite by chance” he met his girl friend and asked her to join him; when they reached the squash court, however, they entered a gallery from which to view the players but no one was playing and they started downstairs towards the locker area but on reaching the foot of the stairs the appellant asked the girl what she thought of a mutual friend and upon her replying that he was “just a friend”, the appellant asked what she thought of him and it was when she said that he was a friend too that he hit her on the head with a rock wrapped in cloth which he had brought from the geology laboratory that morning—the next thing the girl knew was that the appellant was kneeling on the floor with his hands around her neck choking her and crying out “You bitch”, “You bitch”.

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I have found it necessary to recite the facts in skeletal form in order to illustrate the background against which the defence of non-insane automatism was advanced on behalf of the appellant.

It should be observed also that the appellant was subjected to a number of interviews with psychiatrists with the result that the courts have found themselves involved in the shadowy area of mental disorders concerning which it is not surprising to find that there are wide differences in opinion amongst the “experts”. The meaning of the word “automatism”, in any event so far as it is employed in the defence of non-insane automatism, has, in my opinion, been satisfactorily defined by Mr. Justice Lacourcière of the Court of Appeal of Ontario in the case of R. v. K.²:

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.

The defence of automatism as used in the present case of course involves a consideration of the provisions of s. 16 of the Criminal Code which read as follows:

16. (1) No person shall be convicted of an offence in respect of an act or omission on his part while he was insane.

(2) For the purposes of this section a person is insane when he is in a state of natural imbecility or has disease of the mind to an extent that renders him incapable of appreciating the nature and quality of an act or omission or of knowing that an act or omission is wrong.

(3) A person who has specific delusions, but is in other respects sane, shall not be acquitted on the ground of insanity unless the delusions caused him to believe in the existence of a state of things that, if it existed, would have justified or excused his act or omission.

(4) Every one shall, until the contrary is proved, be presumed to be and to have been sane. 1953-54, c. 51, s. 16.

What is said here is that although at the relevant time the appellant was in a state where,

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though capable of action he was not conscious of what he was doing, and more particularly that he was not suffering from a disease of the mind and was therefore not insane. The central question in deciding any case involving the defence of automatism is whether or not the accused was suffering from a disease of the mind. The opinions of psychiatrists go no further than characterizing the condition in which the appellant was found as being “a dissociative state” but it is clear, at least since the case of Bratty v. A.G. Northern Ireland³, that the question of whether or not such a state amounts to “a disease of the mind” is a question of law for the judge to determine. The general rule is that it is for the judge as a question of law to decide what constitutes a “disease of the mind”, but that the question of whether or not the facts in a given case disclose the existence of such a disease is a question to be determined by the trier of fact. I think it would be superfluous for me to retrace the line of authorities in this area as they have been so exhaustively discussed by my brother Dickson and also by Mr. Justice Martin of the Court of Appeal and by the learned trial judge. I am satisfied in this regard to adopt the following passages from the reasons for judgment of Mr. Justice Martin which are now conveniently reported in (1977), 1977 CanLII 48 (ON CA), 40 C.R.N.S. 46. He there said at p. 62:

In general, the distinction to be drawn is between a malfunctioning of the mind arising from some cause that is primarily internal to the accused, having its source in his psychological or emotional makeup, or in some organic pathology, as opposed to a malfunctioning of the mind, which is the transient effect produced by some specific external factor such as, for example, concussion. Any malfunctioning of the mind or mental disorder having its source primarily in some subjective condition or weakness internal to the accused (whether fully understood or not) may be a ‘disease of the mind’ if it prevents the accused from knowing what he is doing, but transient disturbances of consciousness due to certain specific external factors do not fall within the concept of disease of the mind. (For an interesting and helpful discussion see ‘The Concept of Mental Disease In Criminal Law Insanity Tests’ 33 University of Chicago L. Rev. 229, by Herbert Fingarette. Particular transient mental disturbances may not, however, be capable of being properly categorized in relation to

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whether they constitute ‘disease of the mind’ on the basis of a generalized statement and must be decided on a case-by-case basis.

The same learned judge later stated in the same judgment at p. 68:

In my view, the ordinary stresses and disappointments of life which are the common lot of mankind do not constitute an external cause constituting an explanation for a malfunctioning of the mind which takes it out of the category of a ‘disease of the mind’. To hold otherwise would deprive the concept of an external factor of any real meaning. In my view, the emotional stress suffered by the respondent as a result of his disappointment with respect to Miss X cannot be said to be an external factor producing the automatism within the authorities, and the dissociative state must be considered as having its source primarily in the respondent’s psychological or emotional make-up. I conclude, therefore, that, in the circumstances of this case, the dissociative state in which the respondent was said to be constituted a ‘disease of the mind’. I leave aside, until it becomes necessary to decide them, cases where a dissociative state has resulted from emotional shock without physical injury, resulting from such causes, for example, as being involved in a serious accident although no physical injury has resulted; being the victim of a murderous attack with an uplifted knife, notwithstanding that the victim has managed to escape physical injury; seeing a loved one murdered or seriously assaulted, and like situations. Such extraordinary external events might reasonably be presumed to affect the average normal person without reference to the subjective makeup of the person exposed to such experience.

For the above reasons I am of the opinion, with deference, that the learned trial judge erred in holding that the so-called ‘psychological blow’, which was said to have caused the dissociative state, was, in the circumstances of this case, an externally originating cause, and she should have held that if the respondent was in a dissociative state at the time he struck Miss X he suffered from ‘disease of the mind’. A new trial must, accordingly, be had on count 2.

In my view, a possible key to the cause of the malfunctioning of the appellant’s mind at the time of the alleged assault is to be found in paragraph 5 of the Agreed Statement of Facts to which I have already referred, and where it is said of him:

5. The Appellant had never dated any other girl for any length of time, and had only a minimal amount of sexual

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experience. An introvert, he was infatuated with the attractive, out-going…

It seems to me that his infatuation with this young woman had created an abnormal condition in his mind under the influence of which he acted unnaturally and violently to an imagined slight to which a normal person would not have reacted in the same manner.

It was contended on behalf of the appellant that a finding of disease of the mind and consequently of insanity in the present case would involve gross unfairness to the appellant who could be subject to the provisions of s. 545 of the Criminal Code and thus detained at the pleasure of the Lieutenant-Governor of the province. That such a result does not carry with it the hardship contended for is illustrated by the following passage from the reasons for judgment of Mr. Justice Martin at p. 69:

It would, of course, be unthinkable that a person found not guilty on account of insanity because of a transient mental disorder constituting a disease of the mind, who was not dangerous and who required no further treatment, should continue to be confined. The present provisions of s. 545(1)(b) [re-en. 1972, c.13, s.45], however, authorize the Lieutenant-Governor to make an order if, in his opinion, it would be in the best interest of the accused and not contrary to the interest of the public for the discharge of a person found not guilty on account of insanity, either absolutely or subject to such conditions as he prescribes. In addition to the periodic reviews required to be made by a board of review appointed pursuant to s. 547(1) of the Code, the Lieutenant-Governor under s. 547(6) of the Code may request the board of review to review the case of any person found not guilty on account of insanity, in which case the board of review is required to report forthwith whether such person has recovered and, if so, whether in its opinion it is in the interest of the public and of that person for the Lieutenant-Governor to order that he be discharged absolutely or subject to such conditions as the Lieutenant-Governor may prescribe.

For all these reasons, as well as for those expressed by Mr. Justice Martin in the Court of Appeal for Ontario, I would dismiss the appeal and dispose of the matter in the manner proposed by him.

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The reasons of Dickson, Estey and Mclntyre JJ. were delivered by

DICKSON J. (dissenting)—The automatism “defence” has come into considerable prominence in recent years. Although the word “automatism” made its way but lately to the legal stage, it is basic principle that absence of volition in respect of the act involved is always a defence to a crime. A defence that the act is involuntary entitles the accused to a complete and unqualified acquittal. That the defence of automatism exists as a middle ground between criminal responsibility and legal insanity is beyond question. Although spoken as a defence, in the sense that it is raised by the accused, the Crown always bears the burden of proving a voluntary act.

The issue in this appeal is whether automatism resulting from a “psychological blow” is available to an accused in answer to a charge of causing bodily harm with intent to wound. The appellant, Wayne Kenneth Rabey, suddenly and without warning assaulted a fellow student and friend, causing her injury. The theory of the defence was that his behaviour was caused by a psychological blow, an intense emotional shock which induced a “dissociative state”, during which for a time, the appellant was neither conscious of, nor able to control his conduct, so that it was involuntary. This is sometimes spoken of as non-insane automatism, to distinguish it from cases in which the state of automatism is attributable to disease of the mind.

At common law, a person who engaged in what would otherwise have been criminal conduct was not guilty of a crime if he did so in a state of unconsciousness or semi-consciousness. Nor was he responsible if he was, by reason of disease of the mind or defect of reason, unable to appreciate the nature and quality of an act or that its commission was wrong. The fundamental precept of our criminal law is that a man is responsible only for his

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conscious, intentional acts. Devlin J. summed up the position in R. v. Kemp⁴:

In the eyes of the common law if a man is not responsible for his actions he is entitled to be acquitted by the ordinary form of acquittal, and it matters not whether his lack of responsibility was due to insanity or to any other cause. (at p. 251)

In order to protect the public from the dangerous criminally insane, the common law was changed by statute, long ago. By the Criminal Lunatics Act, 1800, and the Trial of Lunatics Act, 1883, and in Canada by the Criminal Code, a verdict of not guilty by reason of insanity results in committal to an institution. The purpose of the qualified verdict of acquittal is, of course, to ensure custody and treatment for those who might pose a continuing threat to society by reason of mental illness. In Canada, an accused who is acquitted on the ground of insanity is kept in strict custody in the place and in the manner that the Court directs, until the pleasure of the lieutenant-governor of the province is known [s. 542(2) of the Code].

The term “automatism” first appeared in the cases and in the periodical literature about thirty years ago. It is seen with increasing frequency. The defence of automatism is successfully invoked in circumstances of a criminal act committed unconsciously; and, in the past, has generally covered acts done while sleepwalking or under concussional states following head injuries.

The defence of automatism is, in some respects, akin to that of insanity. In both instances, the issue is whether an accused had sufficient control over, or knowledge of, his criminal act, to be held culpable. The two defences are, however, separate and distinct. As Professor Edwards observed in 21 Mod. L. Rev. 375, at p. 384:

…Both circumstances are concerned to prove mental irresponsibility, the essential difference… being that in the case of insanity the defect of the understanding must originate in a disease of the mind, whereas in the defence of automatism simpliciter the criminal law is

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not concerned with any question of the disease of the mind.

Although separate, the relationship between the two defences cannot be discounted. Automatism may be subsumed in the defence of insanity in cases in which the unconscious action of an accused can be traced to, or rooted in, a disease of the mind. Where that is so, the defence of insanity prevails. This is all felicitously expressed by Gresson P. in R. v. Cottle⁵, at p. 1007:

It would appear that automatism raised as a defence to a criminal charge may be something quite different and distinct from insanity. In a particular case, it may be that the automatism relied on is due to some ‘disease of the mind’ but it is not necessarily so. Automatism, which strictly means action without conscious volition, has been adopted in criminal law as a term to denote conduct of which the doer is not conscious—in short doing something without knowledge of it, and without memory afterwards of having done it—a temporary eclipse of consciousness that nevertheless leaves the person so affected able to exercise bodily movements. In such a case, the action is one which the mind in its normal functioning does not control. This may be due to some ‘disease of the mind’ or it may not; it may happen with a perfectly healthy mind (e.g. in somnambulism which may be unaccompanied by an abnormality of mind), or it may occur where the mind is temporarily affected as the result of a blow, or by the influence of a drug or other intoxication. It may on the other hand be caused by an abnormal condition of the mind capable of being designated a mental disease. What are known as the M’Naghten Rules can have no application unless there is some form of ‘disease of the mind’, which is not necessarily present in all cases of automatism.

I

The Facts

At the time of the alleged offence, March 1, 1974, the appellant, twenty years of age, was a third year geology student in an honours science course at the University of Toronto. During the fall of 1973, he had spent some time with the

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complainant, also a third year science student, with whom he shared a number of classes. Along with two male classmates, the two studied and lunched together. Their social activities extended to walks together, dinner at one another’s homes and forays to a local bar. The appellant was somewhat shy and though he began to develop strong feelings for the attractive, out-going complainant, the sentiment was not reciprocated.

Plans for the ski trip to Quebec were made in November and the two planned to share a room. The complainant then invited another student to accompany them, creating a more platonic overtone. The three did in fact go to Quebec. The appellant testified that his relationship with the complainant deteriorated in early 1974. They no longer went on walks or visited for dinner. He still saw much of her at school.

On February 28, 1974, the complainant asked the appellant to assist her with an assignment. While she was absent a few moments, he flipped through her books to locate an equation and found a letter she had written to a female friend. He took the letter without her knowledge and read it at home that evening. The letter contains a number of references to sexual activity, both actual and wished for. Toward the end of the letter, this paragraph appears:

And for some reason all the guys I know want to go out with me and not be just friends any more so I can’t talk to them. I don’t want to go out with them and they know it so there is static in the air which is why I want to leave. Hell I can insult Wayne [the appellant] and Rick and they still bug me in class. I want to be alone or with just one good guy, not with a bunch of nothings.

The appellant was hurt and angry as he read the letter. He marked the passages referred to above with a pen.

The following morning, he removed a rock sample of galena from the geology lab. This was not unusual, for he was permitted to take samples

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home for purposes of study. At about noon, as he left to watch a squash match, he met the complainant. He testified that, “just for about a second, not even that, I felt sort of strange, I can’t describe how I felt”. He referred to it as a flash. He suggested she watch the match with him. The two proceeded to the squash court. The game was not in progress, so they left by the far stairwell. The appellant remembered asking her what she thought of Gord, a friend of theirs, hearing the reply that he was “just a friend”, and “really the next thing I remember was choking her and I remember the face was a funny colour and I remember seeing a lot of blood and I stopped”. He realized his hands were around her throat.

The complainant testified that following the question about Gord, the appellant then asked, “What do you think of me?” She replied, “You’re just a friend too”. As she opened a set of fire doors, she heard a crash and a “crumbling sound”. The appellant grabbed her around the arms and struck her on the head. She lost consciousness momentarily. When she recovered consciousness, he was choking her.

A student happened along, to whom the appellant said, “there’s been a terrible accident”. He was pale, sweating, glassy-eyed and had a frightened expression. When the witness looked over the railing and saw the complainant’s head, her body being under the stairs, the appellant said, “I’ve killed her and I am going to kill you too”. The appellant had only a partial recollection of his encounter with this witness.

A professor who was summoned testified that the appellant was very pale and bewildered. His description of the appellant was that he was perspiring; very, very nervous; distraught; upset; absolutely pale, no colour in his face; had moisture about the mouth; was shakey, jerky in his speech; absolutely bewildered, “out of it”. In reply, he said that although the appellant was halting in his

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speech, he was coherent. According to the nurse who next saw the appellant, he looked very upset. His pulse was very fast and not strong; he had a limp “clammy” appearance. She was unable to convince him he had not killed the complainant. To the Dean, the appellant said, “I don’t know why I started or why I stopped” and that, “he liked her better than anyone he had ever known”. The Dean testified the appellant spoke slowly in a confused sort of way, was very depressed and perhaps dazed.

To Constable Pollitt, the appellant said, “I did it, I know I did it, I just couldn’t stop hitting her”. The appellant gave a statement to the police, which reads in part:

I was asking her about the ballet, then I asked her if she liked this guy Gord. She said something about just as a friend, then I guess I hit her right then on the head, she was bleeding from the head and the next thing I remember it all happened so fast she was on the floor and I was sitting on top of her choking her. I thought she was dead there was blood everywhere, I just don’t know what happened.

The statement concluded:

I don’t know why I did it because I wasn’t even mad when this happened, and I don’t remember parts of what happened and when I realized what I had done I went to the nurse’s office and then to phone the police, I actually thought I’d killed somebody.

A number of character witnesses spoke highly of the appellant. Evidence was led that he had been a well behaved young man until this incident. He had never lost his temper or displayed signs of anger.

The complainant made a complete recovery within a short time.

II

The Medical Evidence

The appellant was remanded for psychiatric assessment and committed on March 5, 1974, to

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the Lakeshore Hospital. He was discharged on April 1, 1974. Detailed medical examinations disclosed no evidence of neurological disease. A psychological survey showed no indication of psychotic process. Dr. Slyfield conducted a number of interviews in the preparation of his report which concludes:

Psychological testing done by Mr. Wejtko indicates superior intellectual ability, a personality profile within the range of normality, and a tendency to use the psychological defenses of avoidance, repression and blocking. There was no evidence of psychotic disintegration.

If Wayne is telling the truth about his amnesia for most of the incident, then it is probable that his consciousness was dissociated at the time. His somnambulistic episode lends some support to this explanation. However, such a psychological mechanism need not indicate mental illness.

In the opinion of Dr. Orchard, assistant professor of psychiatry at the University of Toronto and witness for the defence, the appellant entered into a complete dissociative state, a disorder of consciousness which occurs as a result of part of the nervous system “shutting off.” A person in a severe dissociative state may be capable of performing physical actions without consciousness of such actions. When the appellant entered the dissociative state near the foot of the stairs, his mind “shut off”, and the return of consciousness was gradual. In Dr. Orchard’s opinion, the dissociative state which occurred was comparable to that produced by a physical blow; though caused by a “psychological blow”, certain physical effects were produced as observed by the student, the professor, the nurse and the Dean.

According to Dr. Orchard, the appellant was a young man of average health, or better than average health, with no pre-disposition to dissociate. The severe dissociative state, such as the appellant suffered, usually occurs in persons within the category of normal people. According to Dr. Orchard, it is rare for the severe dissociative state not

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caused by some underlying pathology to recur. In his opinion, there was only a very slight possibility that the appellant would suffer a recurrence of this disorder of consciousness. Dr. Orchard could find no indication of any pathological condition, which he defined as a “diseased condition or abnormally sick condition”. In his view, the dissociative state itself is an “occurrence”, not a mental illness and not a disease of the mind.

Dr. Rowsell who, like Dr. Orchard, is a psychiatrist of eminence, examined the appellant and testified on behalf of the Crown. In his opinion, the appellant was not in a dissociative state, but rather was a controlled young man who went into an extreme state of rage at that moment and, while in that state, struck the complainant on the head and choked her. Dr. Rowsell felt that if, contrary to his opinion, the appellant was in a dissociative state, he suffered from disease of the mind. According to Dr. Rowsell, consciousness is the distinguishing factor of mental life; the dissociative state is, by definition, a subdivision of hysterical neurosis, which is a definite mental illness. It is by definition a disorder of the mind. Dr. Rowsell did not suggest there was an underlying pathology which induced the alleged dissociative state. His report reads in part:

He shows no evidence of psychosis. (A psychosis is a disorder of thinking, feeling and behaviour, accompanied by a break with reality. This means that the individual is no longer able to interpret events, both internal and external, as would a person in good mental health.)…

There is no evidence of any organic brain disorder which would impair his consciousness. Therefore, the issue could be raised as to whether he was in an automatic state at the time of the event. In my opinion he was not. The psychiatric term for such a state would be Dissociative Reaction.

The evidence of Dr. Rowsell was that Rabey was conscious at the time of the act but suffered hysterical amnesia after the event, which Dr. Rowsell categorized as neurosis, a disease of the mind.

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Dr. Rowsell, unlike Dr. Orchard, was of the opinion that the appellant still had a psychiatric problem for which he required treatment to help him face up to what occurred. The treatment would take six months to a year, and could be undertaken on an out-patient basis. The prognosis was excellent.

Dr. Orchard, on the other hand, was of the view that inasmuch as the appellant had been a relatively normal person prior to the occurrence, likelihood of any recurrence was negligible. In Dr. Orchard’s words:

I think he has a pretty healthy personality and he will find a healthy way through all this. So I don’t see it in need of any treatment. I don’t see him as sick. I do agree with Dr. Rowsell he is not in any way a criminal type of person.

Dr. Rowsell considered that the appellant was not “in any way a criminal type of person”. Dr. Orchard shared that view.

III

At Trial and on Appeal

The trial judge, Dymond Co. Ct. J., rejected the Crown theory of planned revenge and the medical opinion advanced by Dr. Rowsell of tremendous rage and loss of memory from protective hysterical amnesia. Referring to R. v. K.⁶ and Parnerkar v. The Queen⁷, the judge concluded that a dissociative state brought on by psychological trauma can support a defence of automatism. The ruling in Parnerkar flowed from the medical evidence there, distinctly different from the evidence in this case.

On the issue of automatic behaviour the judge held:

…I am satisfied from the evidence given by Dr. Orchard, by the accused himself, and by the witnesses Pollard, Turner, Houston, Huggett and Degutis that there was evidence before the Court to paraphrase from

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Mr. Justice Kelly in Reg. v. Sproule, a decision released April 16th 1975, quote, and I’m paraphrasing: “upon which a jury properly instructed could have found that at the time of the wounding Rabey had been suffering from a malfunction of mind described as dissociation of the type brought about by an externally originating cause”. Such external cause would have been the words about Gord being a friend, which, tied with the knowledge of what the letter had said, constituted an external blow or trauma which resulted in Rabey’s being in a dissociative state. It can be compared with the blow to the skull causing a concussion where the skull is thin.

Elsewhere in the judgment the following passage appears:

I am therefore of the opinion that a defence of malfunction of the mind described as a dissociative state or a dissociation brought about by an externally operating cause is still open when the external cause is a psychological trauma, provided the other necessary conditions are met.

The “necessary conditions” to which the judge referred were:

1. There must be no disease of the mind, Bratty v. Attorney-General. In this case both psychiatrists have given as their opinion that at the time of the event the appellant was not suffering from any disease of the mind and no evidence was led to indicate that he was so suffering, other than Dr. Rowsell’s opinion that if he were in a dissociative state, it would be a disease of the mind.

2. The condition must not arise as a result of some pre-existing pathological condition or disease. Both doctors agreed there was none.

3. The condition must not be attributable to some self-advanced incapacity, such as the consumption of liquor. The only self-advanced incapacity conceivable was the taking of the letter, and I do not believe the consequences thereof could have been foreseen.

4. The condition could not have been reasonably foreseen as the result of a particular act of omission or commission.

5. According to Lord Denning, a disease of the mind is any mental disorder which has manifested itself in violence and is prone to recur. The opinion of Dr. Orchard was that in so far as there can be any certainty in medicine the state will not recur. This is

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far from “prone to recur”, and Dr. Rowsell did not indicate he thought the actions would recur.

The judge concluded:

I am satisfied that Rabey was not insane within the meaning of section 16 of the Criminal Code when the acts were committed, and I am in a state of real doubt and I believe reasonable doubt as to whether the accused acted in a state of automatism, so that there was no mind behind the actions, and in effect the actions were not his or whether he intended to perform the acts. I must therefore give the benefit of the doubt to the accused, since I have found that a proper foundation was laid for an inference to be reasonably made that the accused acted in a state of automatism brought about by an external cause.

In acquitting the appellant the judge made two findings of particular significance: first, that the appellant was not insane within the meaning of s. 16 of the Criminal Code when the acts were committed and, second, that the appellant had acted in a state of automatism brought about by an external cause.

It is important to note that the Crown did not challenge the finding of automatism in this Court or in the Ontario Court of Appeal. We must therefore accept, for the purposes of this appeal, that the acts to which I have referred occurred without will, purpose or reasoned intention on the part of the appellant. The only question for decision is whether, having found automatism, the trial judge was bound in law to find that the appellant was a proper subject for indefinite detention as an insane person.

On appeal to the Ontario Court of Appeal, the acquittal on the charge of causing bodily harm was reversed and a new trial directed on that count. The Court held that the psychological blow suffered was not an externally originating cause of the dissociative state. The acquittal at trial on a companion charge of possession of a rock for the purpose of wounding was upheld.

Mr. Justice Martin delivered a lengthy judgment on behalf of the Court of Appeal. He held that disease of the mind is a legal term, having both medical, and legal or policy, components. The

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policy component must compromise exemption from responsibility with the need to protect the public. Ultimately the issue as to what constitutes a disease of the mind is a legal one; the concept is broad, embracing mental disorders of organic and functional origin, whether curable or incurable, temporary or not, recurring or non-recurring. With respect, I agree with these views, which were confirmed, at least in part, by this Court in Cooper v. The Queen⁸.

Mr. Justice Martin went on to hold, however, that the likelihood of recurrence is not a factor to be taken into account. In this respect, he differed from Lord Denning in Bratty v Attorney-General for Northern Ireland⁹. Mr. Justice Martin noted that it would be unreasonable to hold that a serious mental disorder did not consitute a disease of the mind simply because it was unlikely to recur. I agree. A test of proneness to recur does not entail the converse conclusion, that if the mental malady is not prone to recur it cannot be a disease of the mind. A condition, organic in nature, which causes an isolated act of unconscious violence could well be regarded as a case of temporary insanity. I question, however, whether Lord Denning intended to exclude temporary insanity as a disease of the mind. The phrase “prone to recur” is, I should have thought, merely another manner of connoting a need for treatment which is, after all, one of the principal reasons for confinement of the mentally ill offender.

The learned Justice of Appeal held that transient mental states produced by external causes (i.e., drugs, concussion) are not diseases of the mind. This is accepted legal doctrine. He held also that the distinction between insanity and automatism rests upon determining whether the cause of the malfunction is internal to an accused or is produced by an external factor. As to this, there may be more doubt. Mr. Justice Martin said:

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In general, the distinction to be drawn is between a malfunctioning of the mind arising from some cause that is primarily internal to the accused, having its source in his psychological or emotional make-up, or in some organic pathology, as opposed to a malfunctioning of the mind which is the transient effect produced by some specific external factor such, as, for example, concussion. Any malfunctioning of the mind, or mental disorder having its source in some subjective condition or weakness internal to the accused… may be a “disease of the mind”… but transient disturbances of consciousness due to specific external factors do not fall within the concept disease of the mind.

I will have more to say on this point as well as upon the opinion of Mr. Justice Martin that in Parnerkar the view of Culliton C.J.S. was not dependent on the evidence of the medical witness; rather, the dissociated state, as induced by the psychological blow, was a pathological condition.

It was the further view of Mr. Justice Martin that the ordinary stresses and disappointments of life which are the common lot of mankind do not constitute an external cause; the emotional stress suffered by the appellant could not be said to be an external factor producing automatism within the authorities; the source of the dissociative state was the appellant’s psychological or emotional makeup.

Mr. Justice Martin considered it “unthinkable” that a person found not guilty on account of insanity because of a transient mental disorder constituting a disease of the mind, who was not dangerous and who required no further treatment, would continue to be confined.

IV

I turn now to the authorities, with the threshold observation that none of them is binding upon this Court or particularly helpful in the resolution of this case.

The English decisions provide some guidance as to the general principles though none of them deals directly with the plea of automatism in the context of psychological blow. Canadian decisions on automatism have tended to be erratic. In one or

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two of the cases, the Courts have permitted the defence on the strength of a psychological blow in circumstances which suggest the presence of a pathological condition or disease of the mind.

The defence of automatism was first successfully raised in R. v. Charlson¹⁰, in which Barry J. instructed the jury in these broad terms:

If he did not know what he was doing, if his actions were purely automatic and his mind had no control over the movement of his limbs, if he was in the same position as a person in an epileptic fit and no responsibility rests on him at all, then the proper verdict is “not guilty”. (at p. 864)

The decision introduced a defence of automatism based on involuntary conduct and made it clear that it was possible to prove involuntariness through mental disorder not amounting to a disease of the mind.

In the later decision of R. v. Kemp, supra, in which the accused suffered from the organic disease of arteriosclerosis, Devlin J. did not accept the distinction between diseases affecting the mind, according to origins, mental or physical; the concern of the law is with the mental condition which brought about the criminal act. The critical passage of the judgment is at p. 253:

In my judgment the condition of the brain is irrelevant and so is the question of whether the condition of the mind is curable or incurable, or whether it is temporary or permanent. There is no warranty for introducing those considerations into the definition of the M’Naghten rules. Either temporary or permanent insanity is sufficient to satisfy them.

Devlin J. also spoke of the purpose of a qualified verdict of guilty but insane (at p. 251):

The object of the Act, no doubt, was that people who committed crimes of violence, even though they were not responsible for their actions, ought not to be allowed to go free because they might commit an act of violence again…

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Although Kemp claimed an outright acquittal on the basis of Charlson’s case, Devlin J. instructed only on insanity. It is important to note, however, that far from doubting the correctness of Charlson’s case, Devlin J. pointed out that if the accused was otherwise sane at the time of the act, but was then not conscious of his acts, he was entitled to an unqualified acquittal.

Hill v. Baxter¹¹ is the first of a series of driving cases. Here, although the accused claimed to have suffered a “black-out” while driving, there was no medical evidence to support his plea of automatism. The notion of automatism discussed in the several judgments was limited in scope. Apart from the possibility of a stroke or epileptic fit, Lord Goddard spoke in terms of novus actus interveniens.

The reasons of Devlin J. are more interesting, bearing in mind his earlier pronouncement in Kemp. At p. 285, he stated:

For the purposes of the criminal law there are two categories of mental irresponsibility, one where the disorder is due to disease and the other where it is not. The distinction is not an arbitrary one. If disease is not the cause, if there is some temporary loss of consciousness arising accidentally, it is reasonable to hope that it will not be repeated and that it is safe to let an acquitted man go entirely free. But if disease is present, the same thing may happen again, and therefore, since 1800 (i.e., Criminal Lunatics Act), the law has provided that persons acquitted on this ground should be subject to restraint.

Kemp was not considered in Baxter.

The decision in Bratty v. Attorney-General, supra, is important, as a pronouncement by the House of Lords recognizing automatism and distinguishing it from insanity. The facts are familiar. The appellant had killed a young girl and shortly thereafter stated to police, “I had some terrible feeling and then a sort of blackness”. On evidence of a condition of psychomotor epilepsy, the defence

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of insanity was left to the jury. The Law Lords agreed that automatism was not available as a defence in the circumstances of that case. Where disease of the mind is the only explanation of the unconscious acts, automatism is not a defence alternative to insanity.

Viscount Kilmuir recognized, however, that in some circumstances, the two defences can be raised simultaneously. Where the loss of conscious control can have arisen from disease or from another cause not indicative of disease, whether it is insanity or automatism which ultimately excuses is a question of fact:

…it may be alleged that the accused had a blow on the head, after which he acted without being conscious of what he was doing or was a sleep-walker. There might be a divergence of view as to whether there was a defect of reason from disease of the mind (compare the curious position which arose in R. v. Kemp). The jury might not accept the evidence of a defect of reason from disease of the mind, but at the same time accept the evidence that the prisoner did not know what he was doing. (at p. 403)

Though not a majority opinion, the judgment of Lord Denning has attracted attention. He spoke generally of automatism. While he referred specifically to concussion and somnambulism as examples, his definition does not attempt an exhaustive list of causes, and frames the defence for all involuntary acts:

No act is punishable if it is done involuntarily: and an involuntary act in this context—some people nowadays prefer to speak of it as “automatism”—means an act which is done by the muscles without any control by the mind, such as a spasm, a reflex action or a convulsion; or an act done by a person who is not conscious of what he is doing, such as an act done whilst suffering from concussion or whilst sleep-walking.

Loss of memory afterwards is never a defence in itself, so long as he was conscious at the time… (at p. 409)

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Not every involuntary act leads to an absolute acquittal. A finding of insanity follows where there exists the prospect of recurrence:

Suppose a crime is committed by a man in a state of automatism or clouded consciousness due to a recurrent disease of the mind. Such an act is no doubt involuntary, but it does not give rise to an unqualified acquittal, for that would mean he would be let at large to do it again. The only proper verdict is one which ensures that the person who suffers from the disease is kept secure in a hospital so as not to be a danger to himself or others. (at p. 410)

Lord Denning expressed disagreement with the decision in Charlson’s case and proposed this test:

It seems to me that any mental disorder which has manifested itself in violence and is prone to recur is a disease of the mind. (at p. 412)

In another leading case, R. v. Carter¹², a defence based on post-traumatic automatism was raised. Sholl J. regarded the practice instituted by the English Lunatics Acts (1800 and 1883) as being “designed to protect the public from possible attacks by persons acquitted on the ground of mental irresponsibility which might recur” (at p. 109). In his opinion, in view of the increase in medical knowledge in the intervening century and a half, “it would be unwise to extend the practice with which the M’Naghten Rules are associated to cases where there is no reason to apprehend any similar danger to the public” (at p. 109). It is outside the policy of the law to extend the practice where there is no reason to fear repetition of the crime and no evidence of brain damage or disease. He would not stretch the concept of disease of the mind to the length of Devlin J. in Kemp and Dixon J. in R. v. Porter¹³.

There is a series of lesser English and Australian cases dealing with automatism. R. v. Wakefield¹⁴ is concerned with the plea in circumstances of a

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physical blow. In Cooper v. McKenna¹⁵, the accused had suffered a concussion from a severe blow on the head incurred a few hours previously in a football match. Though the defence was given effect on the basis the accused had not acted consciously, Stable J. commented at p. 419:

…It is a defence that must be closely scrutinized. It is common knowledge that “black-out”, to use one of the titles, is one of the first refuges of a guilty conscience, and a popular excuse.

See also Armstrong v. Clark¹⁶ (insulin); Watmore v. Jenkins¹⁷ (insulin); R. v. Sibbles¹⁸ (high blood pressure, beer and a minor blow).

In a more recent judgment, R. v. Quick, R. v. Paddison¹⁹, the English Court of Appeal held that hypoglycaemia, a condition in which there is an excess of insulin in the bloodstream relative to the concentration of sugar, was not a disease of the mind.

Lawton L.J. proposed these guidelines, somewhat narrower than the formulation of Devlin J. in Kemp (at pp. 734-5):

In our judgment, the fundamental concept is of a malfunctioning of the mind caused by disease. A malfunctioning of the mind of transitory effect caused by the application to the body of some external factor such as violence, drugs, including anaesthetics, alcohol and hypnotic influences cannot fairly be said to be due to disease. Such malfunctioning… will not always relieve an accused from criminal responsibility. A self-induced incapacity will not excuse… nor will one which could have been reasonably foreseen. From time to time difficult border line cases are likely to arise. When they do, the test suggested by the New Zealand Court of Appeal in Cottle, supra, is likely to give the correct result, viz. can this mental condition be fairly regarded as amounting to or producing a defect of reason from disease of the mind?

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The first Canadian decision is R. v. Kasperek²⁰, a case in which the defence raised was “temporary blackout” and “amnesia”. It was held the denial of insanity, with an assertion of amnesia, was untenable. This decision predates the English authorities which recognized a defence of automatism.

In R. v. Minor²¹, a death resulted from the accused’s dangerous and erratic handling of his car. The facts indicated that just prior to driving, the accused, in attendance at a wedding reception, had been struck and knocked down. According to medical evidence, he had suffered from an injury which rendered him unconscious for an unknown interval. The salient passage is at pp. 34-5:

There is ample authority to the effect that when a person is unconscious from any cause and is in a condition when he cannot form an intent… he had a good defence… In my opinion the provisions with respect to insanity… do not apply to the defence set up in this case, namely, that the accused did not know what he was doing at the time of the accident.

The decision of the Saskatchewan Appeal Court in R. v. Hartridge²² provides a thorough review of the authorities dealing with automatism. The case has limited value as a precedent due to the factor of alcohol-induced amnesia. Culliton C.J.S. said, however, on behalf of the Court:

Difficulty may arise in determining what constitutes a disease of the mind. In the application of the M’Naghten rules, disease of the mind has generally been accepted as any pathological condition, organic or otherwise, which effectively prevents an accused from knowing the nature and quality of his acts. This I take to have been the definition adopted by all of the Law Lords except Lord Denning. (at p. 351)

Pathology is that branch of medicine which treats of the essential nature of disease, especially of the structural and functional changes in tissues and organs of the body which cause or are caused by disease. The definition of disease of the mind in

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Hartridge simply brings us back to the question of “disease”, which, upon the medical evidence, was noticeably absent in the case of the present appellant. A like emphasis upon “disease” is to be noted in R. v. Quick, R. v. Paddison, supra, where, at p. 734, Lawton L.J. delivering the judgment of the Court said:

Our task has been to decide what the law means now by the words “disease of the mind”. In our judgment, the fundamental concept is of a malfunctioning of the mind caused by disease.

The jury charge in R. v. K., supra, as far as I am aware, contains the first plea of psychological blow automatism in this country. Both insanity and automatism were before the jury. In view of the uncontradicted evidence of an underlying pathological condition and a course of psychiatric treatment prior to the killing, one may seriously query whether the trial judge correctly left the alternative defence of automatism with the jury. In the event, the defence gained the accused an acquittal.

A plea of automatism raised at trial was sustained before this Court in Bleta v. The Queen²³, a case in which the Court was concerned, however, with an evidentiary matter. In the course of an affray between the appellant and the deceased, the former was knocked onto the pavement, whereupon he forcibly struck his head. Moments later, he got up and delivered a fatal blow. Witnesses testified that after the fall, the appellant was dazed. On medical evidence that the physical blow deprived him of voluntary control of his actions, the appellant was acquitted at trial. With no discussion as to the availability of the defence of automatism, which appears not to have been in issue in this Court, the acquittal was restored.

Parnerkar v. The Queen, supra, is perhaps the case most directly in point in the resolution of the present appeal. The trial judge and appellate court

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in the case at bar disagreed in their respective interpretations of the judgment rendered by Culliton C.J.S. The case reached this Court, but the plea of non-insane automatism was not directly considered. Only Ritchie J. (in whose judgment Spence J. concurred) expressed a view on the issue of automatism. He agreed that the defence of automatism should not have been left with the jury.

The passage in the judgment of Culliton C.J.S. which has given rise to uncertainty reads:

In my opinion, if the evidence of Dr. Benjamin is accepted, that Parnerkar was in a dissociated state at the time he killed Anna, he was, at that time, suffering from a disease of the mind within the M’Naghten rules as defined by this Court. If the acts committed by Parnerkar were unconscious acts, they depended upon a defect of reason from disease of the mind, and consequently the defence, if any, was one of insanity, and not of automatism. Therefore, in my respectful view, the learned trial judge erred in law in putting the defence of automatism to the jury. I would also point out that Dr. Benjamin stated, if Parnerkar was in a dissociated state, then during that time he was temporarily insane. (at p. 24)

It is unclear whether Culliton C.J.S., unsupported by earlier authority, made a finding that, as a matter of law, a dissociated state is a disease of the mind, or whether he merely accepted the medical opinion that, on these facts, there was a disease of the mind. In the present case Mr. Justice Martin took the former view of the meaning to be attributed to the words of Culliton C.J.S.; the trial judge took the latter view. There is little in the way of elaboration, beyond that contained in the quoted passage, on the issue of disease of the mind.

There are three or four decisions since Parnerkar in which automatism induced by a psychological blow has been pleaded. In R. v. James²⁴, dissociation caused by emotional stress was categorized as insanity rather than as non-insane automatism but in that case the medical evidence disclosed an underlying pathological condition of

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psychotic proportion. In R. v. Cullum²⁵, Zalev Co. Ct. J. acquitted an accused who was in a dissociated state due to situational emotional stress. In Cullum, there was evidence that the factors inducing the dissociative state were “alcohol and the girls”; there was also evidence of a predisposition to dissociate; recurrence could not be ruled out. See also R. v. Cusack²⁶, in which the Prince Edward Island Supreme Court on appeal dismissed a Crown appeal from an acquittal by a jury on a charge of attempted murder. The sole defence was one of non-insane automatism. There was considerable evidence that the accused was not in conscious control of his actions.

Another case to which one might refer is R. v. Sproule²⁷, decided by the Ontario Court of Appeal differently constituted than in the case at bar. In that case, the accused had an argument with a girl who had earlier informed him her interest was on the wane. A discussion between the two rapidly escalated into an argument during which the girl was shot. The judgment of the Court was delivered by Kelly J.A. who stated that the defence sought to tender evidence to prove that Sproule, at the time of the shooting, had been acting in a state of automatism. Mr. Justice Kelly then continued:

Such a condition, the state of automatism, is a demonstration of a malfunction of the mind technically described as dissociation. That malfunction may be non-recurring, brought about by an externally originated cause, examples of which are a blow on the head (Regina v. Bleta, 1963 CanLII 29 (ON CA), [1964] 1 O.R. 485, 41 C.R. 377, [1964] 2 C.C.C. 190, reversed 1964 CanLII 14 (SCC), [1964] S.C.R. 561, 44 C.R. 193, [1965] 1 C.C.C. 1, 48 D.L.R. (2d) 139) or hypoglycemia (Regina v. Paddison, [1973] Q.B. 910, 57 Cr. App. R. 722, [1973] 3 All E.R. 347 at 356). That type of malfunction is not a disease of the mind within the M’Naghten rule and (save when self-induced) is capable of being a defence which would entitle a jury to bring in a verdict of acquittal. (at p. 64)

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The final case I wish to note is Cooper v. The Queen²⁸, a recent decision in which this Court considered the obligation of the trial judge to charge on insanity where the accused had a lengthy psychiatric history, but the medical evidence was that he did not suffer from disease of the mind. In the course of the judgment, the Court had occasion to make the following observations: (at p. 1158)

Disease of the mind is a legal term. It is within the province of the judge to determine what mental conditions are within the meaning of that phrase and whether there is any evidence that an accused suffers from an abnormal mental condition comprehended by that term. More importantly, if there is any evidence the accused did suffer such a disease in legal terms, the question of fact must be left with the jury.

In the context of that case, the Court held: (at p. 1159)

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 Cooper and in the case at bar, there was evidence of interruption of the thought processes in the course of committing certain acts and criminal responsibility was in issue. In Cooper, the question was whether the trial judge was required to charge on insanity. The inquiry in the present case goes somewhat deeper. The question here is whether the accused, having acted in a state of unconsciousness, while in a transitory mental state, must be committed to an institution.

V

This case raises interesting issues, and the judicial conclusion, in my view, should be guided by general principles of criminal responsibility. Before alluding to those principles, it is useful to recall s. 16(4) of the Criminal Code which reads:

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Every one shall, until the contrary is proved, be presumed to be and to have been sane.

In the usual case in which an accused pleads insanity, he has the burden of overcoming the presumption of sanity. In the present case, the appellant is not seeking to establish that he was insane on March 1, 1974. The Crown is asserting the insanity in answer to the defence of automatism raised by the appellant. The presumption of sanity runs in the appellant’s favour.

We turn to s. 16(2): a person is insane when he is in a state of natural imbecility or has a disease of the mind to an extent that renders him incapable of appreciating the nature and quality of an act or omission or of knowing that an act or omission is wrong. The important words, for present purposes, are “disease of the mind”.

The first principle, fundamental to our criminal law, which governs this appeal is that no act can be a criminal offence unless it is done voluntarily. Consciousness is a sine qua non to criminal liability.

The prosecution must prove every element of the crime charged. One such element is the state of mind of the accused, in the sense that the act was voluntary. The circumstances are normally such as to permit a presumption of volition and mental capacity. That is not so when the accused, as here, has placed before the court, by cross-examination of Crown witnesses or by evidence called on his own behalf, or both, evidence sufficient to raise an issue that he was unconscious of his actions at the time of the alleged offence. No burden of proof is imposed upon an accused raising such defence beyond pointing to facts which indicate the existence of such a condition: R. v. Berger²⁹, at p. 379. Whether lack of consciousness relates to mens rea or to actus reus or both may be important in a case in which the offence charged is one of absolute liability, but the conceptual distinction does

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not concern us in the case at bar.

The second principle is that no person should be committed to a hospital for the criminally insane unless he suffers from disease of the mind in need of treatment or likely to recur.

The Ontario Court of Appeal held that the excusing factor was insanity. This finding was reached though the appellant exhibited no pathological symptoms indicative of a previously existing, or ongoing, psychiatric disorder. On medical evidence accepted by the trial judge, the prospect of a recurrence of dissociation is extremely remote. There was no finding that the appellant suffered from psychosis, neurosis or personality disorder. He does not have an organic disease of the brain. This was an isolated event. The appellant has already spent several weeks in a mental institution undergoing psychiatric, neurological and psychological assessment, the result of which did not indicate need for treatment.

There are undoubtedly policy considerations to be considered. Automatism as a defence is easily feigned. It is said the credibility of our criminal justice system will be severely strained if a person who has committed a violent act is allowed an absolute acquittal on a plea of automatism arising from a psychological blow. The argument is made that the success of the defence depends upon the semantic ability of psychiatrists, tracing a narrow path between the twin shoals of criminal responsibility and an insanity verdict. Added to these concerns is the in terrorem argument that the floodgates will be raised if psychological blow automatism is recognized in law.

There are competing policy interests. Where the condition is transient rather than persistent, unlikely to recur, not in need of treatment and not the result of self-induced intoxication, the policy objectives in finding such a person insane are not

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served. Such a person is not a danger to himself or to society generally.

The Ontario Court of Appeal in the present case focused upon “external cause”. The “ordinary stresses and disappointments of life” were held not to constitute an external cause. The Court considered that the “emotional stress” suffered by the appellant could not be said to be an external factor producing the automatism; the dissociative state had its source primarily in the psychological or emotional make-up of the appellant.

There is no evidence to support Mr. Justice Martin’s statement attributing the dissociated state to psychological or emotional make-up of the appellant. To exclude the defence of automatism, it lay upon the Crown to establish that the appellant suffered from a disease of the mind at the time of the attack. The existence of the mental disease must be demonstrated in evidence. Here there is no such evidence from any of the expert or other witnesses with references to the crucial period of the assault. Moreover as earlier noted, s. 16(4) presumes sanity. The Court of Appeal’s conclusion was directly contrary to the testimony of Dr. Orchard, accepted by the trial judge, and finds no support in the testimony of Dr. Rowsell.

Martin J.A. left open the question whether it is possible to dissociate as a result of emotional shock rather than physical injury. The effect of the appellate court judgment was to differ with the trial judge’s finding that the dissociation was brought about by an externally operating cause. In the circumstances, I do not think it is open to this Court to disturb the findings of fact at trial.

If the effect of the appellate court judgment is that, as a matter of law, emotional stress can never constitute an external factor then, with respect, I disagree. Indeed, in the passage quoted below the court seems to concede as much. If the controlling factor is one of degree of emotional stress, and the

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application of some form of quantitative test, then the question becomes one of fact for the trier of fact and not one of law for an appellate court.

It is not clear to me why, as a matter of law, an emotional blow, which can be devastating, should be regarded as an external cause of automatism in some circumstances and an internal cause in others, as the Court of Appeal would seem to propose in this passage:

…I leave aside until it becomes necessary to decide them, cases where a dissociative state has resulted from emotional shock without physical injury, resulting from such causes, for example, as being involved in a serious accident although no physical injury has resulted; being the victim of a murderous attack with an uplifted knife, notwithstanding the victim has managed to escape physical injury; seeing a loved one murdered or seriously assaulted, and the like situations. Such extraordinary external events might reasonably be presumed to affect the average normal person without reference to the subjective make-up of the person exposed to such experience.

I cannot accept the notion that an extraordinary external event, i.e. an intense emotional shock, can cause a state of dissociation or automatism, if and only if all normal persons subjected to that sort of shock would react in that way. If I understand the quoted passage correctly, an objective standard is contemplated for one of the possible causes of automatism, namely, psychological blow, leaving intact the subjective standard for other causes of automatism, such as physical blow, or reaction to drugs.

As in all other aspects of the criminal law, except negligence offences, the inquiry is directed to the accused’s actual state of mind. It is his subjective mental conditions with which the law is concerned. If he has a brittle skull and sustains a concussion which causes him to run amok, he has a valid defence of automatism. If he has an irregular metabolism which induced an unanticipated and violent reaction to a drug, he will not be responsible for his acts. If he is driven into shock and unconsciousness by an emotional blow, and was susceptible to that reaction but has no disease,

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there is no reason in principle why a plea of automatism should not be available. The fact that other people would not have reacted as he did should not obscure the reality that the external psychological blow did cause a loss of consciousness. A person’s subjective reaction, in the absence of any other medical or factual evidence supportive of insanity, should not put him into the category of persons legally insane. Nor am I prepared to accept the proposition, which seems implicit in the passage quoted, that whether an automatic state is an insane reaction or a sane reaction may depend upon the intensity of the shock.

Schiffer states in his text, “Mental Disorder and The Criminal Trial Process” (1978), that psychological blow automatism is described as a reaction to a shock (at p. 101):

However, in cases where the psychological stress has taken the form of a sudden jolt or blow to the accused, the court may be more willing to treat a short-lived bout of automatism as sane. Because the automatism, in order to be a defence in itself, must be an “on the sudden” reaction to psychological stress, the defence of “psychological blow automatism” may be seen as somewhat analogous to the defence of provocation.

I agree with the requirement that there be a shock precipitating the state of automatism. Dissociation caused by a low stress threshold and surrender to anxiety cannot fairly be said to result from a psychological blow. In a recent decision of the B.C. Court of Appeal, R. v. MacLeod, as yet unreported, Craig J.A. adopted the judgment of Martin J.A. in Rabey. The facts of MacLeod cannot be compared with those in the instant appeal. There, the accused absorbed four double drinks of liquor prior to entering the alleged state of dissociation. His loss of consciousness cannot be traced to an immediate emotional shock. He had been subject to ongoing stress for some time, which was heightened by his wife’s recent departure. Though unwilling to classify it a disease of the mind, the accused’s medical witness described it as a “neurotic disorder” which could be induced

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by an “anxiety reaction”. The Court of Appeal held non-insame automatism was not available.

Dr. Glanville Williams’ new book “Textbook of Criminal Law” (1978) is helpful in this discussion, in particular chapter 27. The author cites as the main instances of automatism: “sleepwalking, concussion, some cases of epilepsy, hypoglycaemia and dissociative states”. Williams says (at pp. 608-9) that “automatism” has come to express “any abnormal state of consciousness (whether confusion, delusion or dissociation) that is regarded as incompatible with the existence of mens rea, while not amounting to insanity”, adding:

It would better be called “impaired consciousness”, but the orthodox expression can be used if we bear in mind that it does not mean what it says.

and in a footnote:

Because automatism is a legal concept, a psychiatrist should be asked to testify to the mental condition as psychiatrically recognized, not to “automatism”. It is for the judge to make the translation. In most of the conditions referred to legally as automatism the psychiatrist would speak of an altered state of consciousness. (at p. 609)

The Parnerkar case is discussed at some length and the following observations made with respect thereto:

The decision illustrates the difficulty that can be caused to the courts by over-enthusiastic psychiatrists. If such evidence were regularly given and accepted a considerable breach would be made in the law of homicide. A medical witness who proclaims that the defendant, though awake, did not know that he was stabbing a person because of his dissociated state invites incredulity, particularly where it is shown that the defendant immediately afterwards telephoned for an ambulance and the police. Further, to assert that this medical condition amounts to insanity ignores the distinction that has been developed between sane and non-sane automatism. If Parnerkar was in a state of automatism at all it was of the non-insane variety, since there was no

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evidence of psychosis or brain damage or continuing danger. (at p. 613) (Underlining added.)

At the conclusion of the discussion on Parnerkar, Williams makes the following comment, particularly apt in the present case:

It may also be remarked that commitment to hospital is inappropriate in a case of hysterical dissociation, since once the episode is over the patient does not need to be detained. (at p. 613)

Under the heading “Insanity versus Automatism” Williams states that before the decision in Quick, Lord Denning’s view in Bratty was generally accepted. The test of insanity was the likelihood of recurrence of danger. In Quick, the Court of Appeal adopted what might seem at first sight to be a different test for insane versus non-insane automatism. But the real question is whether the violence is likely to be repeated. Williams concludes that “On the whole, it would be much better if the courts kept to Lord Denning’s plain rule; the rule in Quick adds nothing to it”. (at p. 615)

This view, which the Ontario Court of Appeal appears to have rejected, finds ample support in the legal literature. See Beck, “Voluntary Conduct: Automatism, Insanity and Drunkenness”, (1966-67) 9 Crim. L.Q. 315, at p. 321, “The cause of the automatic conduct, and the threat of recurrence, are plainly factors that determine the line between sane and insane automatism”; Whitlock, “Criminal Responsibility and Mental Illness” at p. 120, “The test of whether or not an episode of automatism is to be judged as sane or insane action seems to rest on the likelihood of its repetition”; J. LI. J. Edwards, “Automatism and Criminal Responsibility”, 21 Mod. L. Rev. 375, at p. 385, “Where evidence is available of recurrent attacks of automatism during which the accused resorts to violence… inevitably leads to consideration of the imposition of some restraint”; Prevez-

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er, “Automatism and Involuntary Conduct” [1958] Crim. L.R. 440, at p. 441, “If… it can safely be predicted that his conduct is not likely to recur, having regard to the cause of the automatism, there can be no point in finding him insane and detaining him in Broadmoor”; Martin, “Insanity as a Defence”, (1965-6) 8 Crim. L.Q. 240, at p. 253, “Perhaps the distinction lies in the likelihood of recurrence and whether the person suffering from it is prone to acts of violence when in that state”.

In principle, the defence of automatism should be available whenever there is evidence of unconsciousness throughout the commission of the crime, that cannot be attributed to fault or negligence of his part. Such evidence should be supported by expert medical opinion that the accused did not feign memory loss and that there is no underlying pathological condition which points to a disease requiring detention and treatment.

I would only add that s. 16 determines the consequences of the finding of “no consciousness”, on the basis of a legal conclusion guided by the medical evidence of the day. What is disease of the mind in the medical science of today may not be so tomorrow. The court will establish the meaning of disease of the mind on the basis of scientific evidence as it unfolds from day to day. The court will find as a matter of fact in each case whether a disease of the mind, so defined, is present.

The circumstances in this case are highly unusual, uncomplicated by alcohol or psychiatric history. The real question in the case is whether the appellant should be confined in an institution for the criminally insane. The trial judge negated an act of passion, lack of self-control or impulsiveness. The medical evidence negated a state of disease or disorder or mental disturbance arising from infirmity. Save for what was said by Dr. Rowsell,

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whose evidence as to ex post facto hysterical amnesia was rejected by the trial judge, the medical experts gave the appellant a clean mental bill of health. I can see no possible justification for sending the case back for a new trial.

I would allow the appeal, set aside the judgment of the Ontario Court of Appeal, and restore the verdict of acquittal.

Appeal dismissed, DICKSON, ESTEY and MCINTYRE JJ. dissenting.

Solicitor for the appellant: Michael A. Wadsworth, Toronto.

Solicitor for the respondent: The Attorney General of Ontario, Toronto.

Footnotes

1. 1(1977), 1977 CanLII 48 (ON CA), 17 O.R. (2d) 1, 40 C.R.N.S. 46, 37 C.C.C. (2d) 461, 79 D.L.R. (3d) 414.
2. 2(1970), 1970 CanLII 431 (ON SC), 3 C.C.C. (2d) 84.
3. 3[1963] A.C. 386.
4. 4[1956] 3 All E.R. 249.
5. 5[1958] N.Z.L.R. 999.
6. 6(1970), 1970 CanLII 431 (ON SC), 3 C.C.C. (2d) 84.
7. 71973 CanLII 149 (SCC), [1974] S.C.R. 449, aff, g. (1971), 1971 CanLII 819 (SK CA), 5 C.C.C. (2d) 11 (Sask. C.A.).
8. 81979 CanLII 63 (SCC), [1980] 1 S.C.R. 1149.
9. 9[1963] A.C. 386.
10. 10[1955] 1 All E.R. 859.
11. 11[1958] 1 Q.B. 277.
12. 12[1959] V.R. 105.
13. 13(1933), 55 C.L.R. 182.
14. 14(1957), 75 W.N. (N.S.W.) 66.
15. 15[1960] Queensland L.R. 406.
16. 16[1957] 2 Q.B. 391.
17. 17[1962] 2 All E.R. 868.
18. 18[1959] Crim. L.R. 660.
19. 19(1973), 57 Cr. App. R. 722.
20. 20(1951), 1951 CanLII 71 (ON CA), 101 C.C.C. 375.
21. 21(1955), 1955 CanLII 223 (SK CA), 112 C.C.C. 29 (Sask. C.A.).
22. 22(1966), 1966 CanLII 347 (SK CA), 57 D.L.R. (2d) 332.
23. 231964 CanLII 14 (SCC), [1964] S.C.R. 561.
24. 24(1974), 30 C.R.N.S. 65 (Ont. S.C.).
25. 25(1973), 1973 CanLII 1348 (ON SC), 14 C.C.C. (2d) 294 (Ont. Co. Ct.).
26. 261971 CanLII 1267 (PE SCTD), [1971] 1 Nfld. & P.E.I.R. 496.
27. 27(1975), 1975 CanLII 1354 (ON CA), 30 C.R.N.S. 56.
28. 281979 CanLII 63 (SCC), [1980] 1 S.C.R. 1149.
29. 29(1975), 1975 CanLII 1250 (BC CA), 27 C.C.C. (2d) 357.