CITATION: R. v. Enns, 2016 ONSC 2229
COURT FILE NO.: CR-15-11-AP
DATE: 2016-03-31
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Mr. P. Keen, for the Appellant
Appellant
- and -
JERRY A. ENNS
Mr. M. Van Walleghem, for the Respondent
Respondent
HEARD: March 3, 2016 at Kenora, Ontario
Mr. Justice J.S. Fregeau
Introduction
[1] This is an appeal by the Crown from the acquittal of the accused on charges that he did, on or about October 28, 2013, operate a motor vehicle with a blood alcohol concentration in excess of the legal limit and did operate a motor vehicle while his ability to do so was impaired by alcohol, contrary to sections 253(a) and 253(b) of the Criminal Code.
The Issue
[2] At trial, the accused led psychiatric evidence suggesting that he was suffering from non-mental disorder automatism, namely dissociative fugue, on October 28, 2013.
[3] The trial judge held that the actus reus of the offences had been proven beyond a reasonable doubt but that the “evidence has raised a reasonable doubt with respect to the mens rea component” because of the “possibility” that the accused was in a Dissociative State.
[4] The appellant submits that the trial judge applied the wrong burden of proof and thereby committed an error of law.
Facts
[5] On October 28, 2013, the respondent was stopped near Vermillion Bay, Ontario while driving his vehicle because he was observed to be driving erratically. The respondent was alone in the vehicle. The officer detected an odour of alcohol coming from the vehicle. The officer also observed a partial can of beer in the cup holder in the centre console of the vehicle and a full case of beer in the back seat of the vehicle. The respondent admitted that he had been consuming alcohol. The respondent’s Breathalyzer readings were 147 and 133 milligrams of alcohol in 100 millilitres of blood.
[6] The respondent was observed to be confused. He indicated to the officer that he did not know where he was or how he got there. The respondent resides in Winnipeg, Manitoba, approximately 200 miles west of the location where he was stopped. He told the officer that he had been drinking beer in his garage that morning but could not recall when he had started drinking or how much he had consumed. The respondent also advised the police that he suffered from “fugue” and that his “fugue situation” had occurred before.
[7] At trial, the respondent testified that he only had a vague recollection of the incident. He testified that he recalled being at home and getting his work tools ready. His next recollection was being in a jail cell. The respondent testified that on three other occasions he had driven to various locations in a vehicle without a reason for being there and not knowing how he had got there. The respondent testified that he was being treated for anxiety by Dr. Modirrousta, a psychiatrist practicing in Winnipeg.
[8] Dr. Modirrousta was qualified as an expert in psychiatry. She testified that the respondent was referred to her due to amnesic episodes and because his EEG and brain MRI showed no abnormalities. Dr. Modirrousta examined the respondent four times between November 21, 2013 and September 18, 2014. She diagnosed the respondent with an anxiety disorder.
[9] In commenting on the respondent’s driving to locations for no reason and without recollection of how he had got there, the doctor testified that it was “quite possible” that the respondent suffered from a rare condition known as “dissociative amnesia with a fugue episode” triggered by stress and/or anxiety. Dr. Modirrousta testified that people suffering from dissociative fugue “don’t understand what they’re doing”.
[10] Dr. Modirrousta testified that dissociative amnesia normally follows traumatic events or periods of acute or chronic stress. In cases of dissociative amnesia with fugue episodes, people could forget a period of time, travel to locations for no reason and lose their identity.
[11] The doctor did not diagnose the respondent with dissociative amnesia with fugue episodes. Her “first diagnosis or assessment is Anxiety Disorder”. The doctor testified that “it is quite possible” that the respondent was suffering from “dissociated amnesia with fugue episodes”.
[12] Dr. Modirrousta was not familiar with the term “automaton”.
The Decision of the Trial Judge
[13] The trial judge reviewed the evidence of the arresting officer, the respondent and Dr. Modirrousta and concluded that the actus reus had been proven beyond a reasonable doubt. The trial judge then found that it “remains a possibility” that the respondent was “in the fugue state” and that the evidence of that possibility ‘”has raised a reasonable doubt with respect to the mens rea component”. The trial judge acquitted the respondent on both charges.
Discussion
Did the trial judge err in law in imposing the burden on the Crown to disprove the defence of non-mental disorder automatism rather than requiring the respondent to establish the defence on a balance of probabilities?
[14] In closing submissions at trial, counsel for the respondent put the defence of non-mental disorder automatism squarely before the trial judge. Counsel further acknowledged that the onus was on the respondent to establish that defence on a balance of probabilities.
[15] Section 16 of the Criminal Code applies where an accused person alleges he or she was suffering from a mental disorder at the time of allegedly committing an offence. Section 16 of the Code reads as follows:
- (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.
(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.
(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.
[16] The Supreme Court of Canada comprehensively reviewed the defence of automatism in R. v. Stone, 1999 688 (SCC), [1999] 2 S.C.R. 290 (S.C.C.) and established a general test applicable to all cases involving claims of automatism.
[17] Two forms of automatism are recognized at law: mental disorder automatism and non-mental disorder automatism. Involuntary action which does not stem from a disease of the mind gives rise to a claim of non-mental disorder automatism which, if successful, entitles the accused to an acquittal. R. v. Stone para. 157.
[18] The defence of non-mental disorder automatism is a claim that an accused person acted involuntarily and that such behavior does not stem from a mental disorder. The criminal law presumes that people act voluntarily. To rebut this presumption based on a defence of non-mental disorder automatism, the accused is required to establish the defence on a balance of probabilities. R. v. Stone para. 179.
[19] When advancing a claim of automatism, the defence must first satisfy the evidentiary burden and establish to the satisfaction of the trial judge that there is evidence upon which a properly instructed jury could find that the accused acted involuntarily on a balance of probabilities. R. v. Stone para. 182.
[20] In order to satisfy the evidentiary burden, the defence must assert involuntariness and provide confirming psychiatric evidence. Satisfying the evidentiary burden will generally require more than an assertion of involuntariness on the part of the accused accompanied by confirming expert evidence that automatism is plausible. R. v. Stone para. 187.
[21] If the accused has laid a proper foundation for the defence of automatism and satisfied the evidentiary burden, the trial judge must then determine whether mental disorder or non-mental disorder automatism should be left with the trier of fact. R. v. Stone para. 193.
[22] If the trial judge concludes that the condition the accused claims to have suffered from is not a disease of the mind, only the defence of non-mental disorder automatism will be left with the trier of fact. The question for the trier of fact will then be whether the defence has proven that the accused acted involuntarily on a balance of probabilities. If the defence has proven that the accused acted involuntarily on a balance of probabilities, the defence of non-mental disorder automatism has been made out and the accused is entitled to an acquittal. R. v. Stone para. 219.
[23] The trial judge did not expressly state that the respondent had satisfied the evidentiary burden for non-mental disorder automatism. However, it is implicit in the trial judge’s reasons that the respondent had done so because at the end of the day he acquitted the accused.
[24] Once the respondent satisfied the evidentiary burden for non-mental disorder automatism, it was incumbent on the trial judge to then determine if the accused had proven, on a balance of probabilities, that at the time of the offences he was acting involuntarily.
[25] The trial judge did not do so. The trial judge found that it was a “possibility” that the respondent was in a “Fugue state” and that this possibility “raised a reasonable doubt with respect to the mens rea component.” In requiring the Crown to disprove involuntariness beyond a reasonable doubt, the trial judge erred in law. The appeal is allowed.
[26] Section 834(1)(a) of the Code provides that an appeal court may affirm, reverse or modify the conviction, judgment, verdict of the summary conviction court.
[27] The test established at common law with respect to setting aside an acquittal and entering a verdict of guilty is as follows:
An appellate court may overturn an acquittal and enter a conviction rather than ordering a new trial where the Crown satisfies the court that, had there been a proper application of the law, the verdict would not have been the same, and further demonstrates that the accused should have been found guilty but for the error of law. All the findings necessary to support a verdict of guilty must have been made, either explicitly or implicitly, or not be in issue. R. v. Cassidy, 1989 25 (SCC), [1989] 2 S.C.R. 345 at para.16.
[28] Having read the transcript of evidence and the trial judge’s reasons, I conclude that the trial judge made all necessary findings of fact to enter a conviction. He held that “there is no doubt that (the respondent) committed the actus reus.” Had there been a proper application of the law as to the burden of proof to be applied to the defence of non-mental disorder automatism, the respondent would have been found guilty.
[29] I order that a conviction be entered in substitution of the not guilty verdict on the charge contrary to s. 253(b) of the Code. I order that a judicial stay be entered on the charge contrary to s. 253(a) of the Code, pursuant to R. v. Kienapple, [1975] 1 S.C.R. 725.
[30] The Crown has asked, in the event that the appeal is granted and a conviction entered, that the respondent be sentenced to the minimum fine and the minimum driving prohibition. I find that this is appropriate.
[31] Pursuant to sections 255(1)(a)(i) and 259(1)(a) of the Code, the respondent is fined $1,000.00 (plus applicable surcharge) and is prohibited from operating a motor vehicle on any street, road, highway or other public place in Canada for a period of one year. The respondent shall have six months to pay the fine.
The Hon. Mr. Justice J.S. Fregeau
Released:
CITATION: R. v. Enns 2016 ONSC 2229
COURT FILE NO.: CR-15-11-AP
DATE: 2016-03-31
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
JERRY A. ENNS
REASONS ON APPEAL
Fregeau J.
Released: March 31, 2016
/sf