COURT FILE NO.: CR-21-0097-00

DATE: 2022-12-01

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING

A. Sadler and K. Van Kessel, for the Crown

• and -

Courtney Labelle

G. Labine and B. Rogers, for the Accused

Accused

HEARD: September 21, 2022, at Thunder Bay, Ontario

Mr. Justice J.S. Fregeau

Ruling as to Air of Reality and Defence of Non-Mental Disorder Automatism

BACKGROUND

[1] The accused was charged with the January 1, 2020, second-degree murder of her 11-year old son, K.L., and the aggravated assault of her father, Eugene Labelle. She was tried by judge and jury in Thunder Bay, Ontario between September 12 and September 22, 2022.

[2] It was not in dispute that the accused, at approximately 7:00 a.m. on January 1, 2020, stabbed her son K.L. multiple times causing his death. The accused had smoked a considerable amount of crack cocaine in the hours prior to the stabbing. Dr. Kravtsenyuk, a psychiatrist, testified for the defence. Dr. Kravtsenyuk was qualified as an expert in forensic psychiatry. She opined that the accused was suffering from drug induced psychosis, secondary to crack cocaine intoxication, at the time of the stabbing. As a result, the accused’s state of mind was the primary issue for the jury.

[3] On September 20, 2022, following the conclusion of the evidence, an initial pre-charge conference was conducted with counsel. It was agreed that the jury had to be instructed on the issue of intoxication as it related to whether the Crown had proven beyond a reasonable doubt that the accused had the requisite subjective intent for second degree murder. The Crown conceded that the jury should be charged only as to the mens rea of recklessness.

[4] The accused submitted that the air of reality threshold had been met for the defence of non-mental disorder automatism and that this defence should also be left with the jury. If the evidence of automatism was accepted by the jury, the accused would be acquitted. Mental disorder automatism was not in issue. The Crown argued that there was no air of reality to the defence of non-mental disorder automatism and that it should not be put to the jury.

[5] On September 21, 2022, I ruled orally that there was no air of reality to the defence of non-mental disorder automatism and that I would therefore not instruct the jury on that defence. On September 22, 2022, the jury convicted the accused of second-degree murder.

[6] The following are my reasons for ruling that the defence of non-mental disorder automatism would not be left with the jury.

SUMMARY OF THE RELEVANT EVIDENCE

The Accused

[7] During the evening of December 31, 2019, while with her siblings and father at the residence of her deceased mother, the accused testified that she smoked an unknown amount of crack cocaine and drank approximately one beer. The accused testified that she had also smoked some crack cocaine before arriving at her mother’s residence. She and her brother then went from her mother’s residence to a New Year’s party where she drank one “shot” of vodka.

[8] After leaving the New Year’s party on her own and during the early morning hours of January 1, 2020, the accused purchased $200-$300 worth of crack cocaine. She testified that she smoked “almost a ball” of crack cocaine, referring to an “8 ball”, a 3.5 gram measurement of powdered cocaine. She did not know the equivalent amount in the form of crack cocaine.

[9] The accused testified that she then recalled wandering the streets of Thunder Bay before entering a “bus box” and apparently waiting for a taxi. She had no recollection of travelling from the “bus box” to her sister’s home, the location of the stabbing. Her next recollection was of her father Eugene on top of her, wrestling her to the living room floor of her sister’s home, where Mr. Labelle and his partner were staying while visiting Thunder Bay. The accused was then subdued by police and arrested.

Eugene Labelle

[10] Mr. LaBelle testified that he fell asleep in the living room of his daughter’s home while watching television with K.L. during the early morning hours of January 1, 2020. At some time during the night, Mr. Labelle awoke to find the accused present in the living room. Mr. Labelle wished her a Happy New Year, left her to watch her son who was asleep on the couch and went to bed in the bedroom where his partner was sleeping.

[11] Mr. LaBelle next recalls waking up to muffled sounds that he described as similar to someone being punched in the stomach. He ran to the living room and observed the accused standing over K.L.’s body on the living room floor with what he thought was a stick in her hand. When he got closer, he realized the accused was stabbing K.L. with a knife. Mr. LaBelle ran and punched and then tackled the accused and sat on top of her while struggling with her for control of the knife. He yelled at his partner to call 911. Mr. LaBelle testified that he weighs approximately 320 lbs. and that the accused weighed about 100 lbs. at the time. He was surprised at how strong the accused was and how difficult it was for him to physically subdue her that night.

The Police Witnesses

[12] The police officers who attended the scene of the stabbing and who arrested the accused and took her to the police detachment described the accused’s behaviour as “erratic”, “frantic” and “bizarre”. They also described her as uncooperative and unresponsive. Police officers observed her “flail, scream, moan and wail”. She attempted to choke herself with the handcuffs while in the police cruiser.

Booking Room Video

[13] The booking room video was entered as an exhibit at trial. The contents of the video are difficult to describe. The accused is shown as she is processed at the Thunder Bay Police Services detachment. Throughout the video, the accused, extremely dishevelled and covered in blood, wails and moans incomprehensibly. She is physically supported by two police officers, one on each arm. Intermittently, she appears to be consciously lifting her legs off the floor.

[14] Dr. Kravtsenyuk made the following observations of the accused during the booking room video:

1. She was unsteady on her feet;
2. She required support and assistance throughout the entire booking period;
3. She appeared dishevelled and unkempt;
4. She made incomprehensive and unidentifiable sounds;
5. She was, at times, non-responsive to direction; and
6. She appeared confused and under the influence of substances.

Dr. Kravtsenyuk

[15] Dr. Kravtsenyuk, a psychiatrist, testified for the defence. She was qualified as an expert allowed to provide opinion evidence with respect to the state of mind of the accused on January 1, 2020.

[16] Dr. Kravtsenyuk had earlier completed an assessment to assist in determining whether the accused met the criteria for exemption from criminal responsibility on account of mental disorder pursuant to s. 16(1) of the Criminal Code. In her report, dated December 21, 2020, Dr. Kravtsenyuk opined that the accused did not meet the criteria. Dr. Kravtsenyuk’s December 21, 2020, report was referred to extensively during her examination and cross-examination but it was not put into evidence at the trial of the accused.

[17] For the purposes of her s. 16 assessment, Dr. Kravtsenyuk interviewed the accused three times by videoconference, each interview being approximately one hour in length. She also reviewed the entire Crown brief and all available clinical records with respect to the accused. Dr. Kravtsenyuk testified at the accused’s preliminary hearing, held July 27, 2021, by Zoom. She also reviewed the transcript of the other witnesses who testified. In addition to testifying at the accused’s trial, Dr. Kravtsenyuk attended other portions of the trial, including the testimony of the accused. Dr. Kravtsenyuk also viewed the booking room video in its entirety.

[18] In direct examination, Dr. Kravtsenyuk was asked to provide her opinion as to the mental state of the accused at the time of the offence. Counsel specifically directed Dr. Kravtsenyuk to consider her observations of the accused during the booking room video when providing her opinion. Dr. Kravtsenyuk answered as follows: “In my opinion, Ms. Labelle was under the influence of substances, most likely a stimulant. Intoxication was present with drug induced psychosis.”

[19] Dr. Kravtsenyuk was then asked her opinion with respect to her observations of the accused’s behaviour during the booking room video. She responded as follows: “With respect to the viewed video, it supported my previously stated opinion…that she was suffering from the influence of substances, particularly intoxication and a drug induced psychosis”.

[20] Defence counsel then asked Dr. Kravtsenyuk for her opinion as to whether the accused “had control of her involuntary actions at the time of the offence”. Dr. Kravtsenyuk answered as follows:

Based on the information available to me from my previous assessment and from this new information that has been made available to me today [referring to the booking room video], I would hold the previously stated opinion that Ms. LaBelle was under the influence of substances which affected her ability to appreciate the actions that she was doing at the [material] time.

[21] In cross-examination, Crown counsel had Dr. Kravtsenyuk confirm that her opinion at trial as to the accused’s mental state was consistent with her opinion in her December 21, 2020, report and with the opinion she gave at the July 27, 2021, preliminary hearing. Dr. Kravtsenyuk confirmed the accuracy of her opinion from her report, which provided the following:

Although Ms. LaBelle may have been altered in her mental state at the material time…there is inadequate information to suggest she was deprived of the knowledge of the direct physical consequences of her actions. Therefore [I conclude] she retained the ability to appreciate the nature and quality of her actions.

[22] Crown counsel then asked Dr. Kravtsenyuk if, given that opinion, it was her evidence “that [the accused] would have been able to understand the lethality of her actions”. Dr. Kravtsenyuk agreed that she would have.

[23] Crown counsel also asked Dr. Kravtsenyuk to confirm that when she used the phrase “the nature and quality of her actions” she meant that “at a minimum…[the accused] would be able to understand that she was stabbing someone”. Dr. Kravtsenyuk agreed that this was an accurate paraphrasing of her opinion.

[24] Later in the cross-examination, Dr. Kravtsenyuk stated that it was helpful for her to have watched the booking room video because this video provided an opportunity to observe the accused very soon after she stabbed her son. Dr. Kravtsenyuk testified that what she observed of the accused during the booking room video “corresponded to an individual who was clearly impaired and from what I know, under the influence”.

[25] Dr. Kravtsenyuk agreed with Crown counsel’s suggestion that the fact that an individual does not understand the wrongfulness of their actions did not necessarily mean that they did not understand the likely consequences of their actions. Dr. Kravtsenyuk further agreed that it was her opinion that the accused would have understood the lethal consequences of her actions but not “the moral wrongfulness of her action[s] at the time”. When asked if the accused’s understanding of the consequences of her actions at the time of the offence meant that she would also have had control over her actions, Dr. Kravtsenyuk replied, “She would more likely have control over her actions.”

THE DEFENCE OF NON-MENTAL DISORDER AUTOMATISM

[26] In R. v. Parks, 1992 CanLII 78 (SCC), [1992] 2 S.C.R. 871, the issue before the Court was whether sleepwalking should be classified as non-insane automatism resulting in an acquittal or as a “disease of the mind” (insane automatism), giving rise to a verdict of not guilty by reason of insanity.

[27] Lamer C.J., as he then was, (dissenting in part), referred to the following definition of automatism from Black’s Law Dictionary (5th ed. 1979):

Behaviour performed in a state of mental unconsciousness or dissociation without lawful awareness, i.e., somnambulism, fugues. Term is applied to actions or conduct of an individual apparently occurring without will, purpose, or reasoned intention on his part; a condition sometimes observed in persons who, without being actually insane, suffer from obscuration of the mental faculties, loss of volition or of memory…

[28] La Forest J., writing for the majority, stated the following at para. 41:

Automatism occupies a unique place in our criminal law system. Although spoken of as a “defence”, it is conceptually a sub-set of the voluntariness requirement, which in turn is part of the actus reus component of criminal liability. A useful introduction is found in the dissenting reasons of Dickson J. (as he then was) in Rabey v. The Queen, 1980 CanLII 44 (SCC), [1980] 2 S.C.R. 513, at p.522:

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 is automatism exists as a middle ground between criminal responsibility and legal insanity is beyond question. Although spoken of as a defence, in the sense that it is raised by the accused, the Crown always bears the burden of proving a voluntary act.

[29] In R. v. Stone, 1999 CanLII 688 (SCC), [1999] 2 S.C.R. 290, the accused admitted to stabbing his wife 47 times. He claimed to have done so while in a state of automatism brought on by his wife’s insulting words. The trial judge declined to instruct the jury on non-insane automatism. The accused was found guilty of manslaughter. One of several issues before the Supreme Court was whether the defence of non-insane automatism should have been left to the jury.

[30] At trial, the defence psychiatrist testified that the accused’s account of the facts was consistent with a dissociative episode caused by a series of psychological blows. The defence psychiatrist opined that the accused was in a dissociative state for at least the majority of the attack on his wife.

[31] The Crown psychiatrist testified that it was possible that the accused was in a dissociative state when he killed his wife, but it was extremely unlikely. The Crown psychiatrist’s skepticism was based upon several factors. The accused’s lack of memory in itself was not conclusive, the frenzied nature of the attack was equally consistent with rage as with dissociation and the fact that the wife of the accused was both the trigger of the dissociative episode, and the victim of the accused’s dissociated violence rendered the claim of dissociation suspect.

[32] In Stone, at para. 156, Bastarache J. noted that references to unconsciousness in the previous legal definitions of automatism had attracted criticism. He chose to define automatism “as a state of impaired consciousness, rather than unconsciousness, in which an individual, though capable of action, has no voluntary control over that action”.

[33] The Ontario Court of Appeal provided a more detailed definition of automatism in R. v. Luedecke, 2008 ONCA 716, at para. 54:

Automatism refers to involuntary conduct that is the product of a mental state in which the conscious mind is disassociated from the part of the mind that controls action. A person in a state of automatism may perform acts, sometimes complicated and apparently purposeful acts, but have no control over those actions.

[34] At para. 161 of Stone, Bastarache J. also put to rest the terms “insane” automatism and “non-insane” automatism. He preferred the terms “mental disorder” automatism and “non-mental disorder” automatism because they more accurately reflected recent changes to s. 16 of the Criminal Code.

[35] At para. 170 of Stone, Bastarache J. observed that voluntariness, rather than consciousness, is the key legal element of automatistic behaviour since a defence of automatism amounts to a denial of the voluntariness component of the actus reus. At para. 171, Bastarache J. stated as follows:

The law presumes that people act voluntarily. Accordingly, since a defence of automatism amounts to a claim that one’s actions were not voluntary, the accused must rebut the presumption of voluntariness. An evidentiary burden is thereby imposed on the accused. The nature of this evidentiary burden stems from the legal burden imposed in cases involving claims of automatism. Generally, the legal burden in such cases has been on the Crown to prove voluntariness, a component of the actus reus, beyond a reasonable doubt – hence Dickson J.’s contention in Rabey that an accused claiming automatism need only raise evidence sufficient to permit a properly instructed jury to find a reasonable doubt as to voluntariness in order to rebut the presumption of voluntariness. The Crown then has the legal burden of proving voluntariness beyond a reasonable doubt to the trier of fact. If the Crown fails to satisfy this burden, the accused will be acquitted.

[36] Bastarache J. was of the opinion that a review of the legal burden applicable in cases involving claims of automatism, one reflecting policy concerns surrounding such claims, was in order. At para. 179, Bastarache J. concluded that “the legal burden in cases involving claims of automatism must be on the defence to prove involuntariness on a balance of probabilities to the trier of fact”. He further concluded that requiring that an accused bear the legal burden of proving voluntariness on a balance of probabilities was justified under s. 1 of the Charter.

[37] This change in the legal burden in cases involving claims of automatism necessitated a change to the evidentiary burden. To meet the evidentiary burden, the defence must satisfy 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: Stone, para. 182.

[38] Bastarache J. went on to review the nature of the evidence required to satisfy this revised evidentiary burden. At para. 187, he stated:

In order to satisfy the evidentiary burden, all cases will require an assertion of involuntariness and confirming psychiatric evidence. However, this burden will generally require more than an assertion of involuntariness on the part of the accused accompanied by confirming expert evidence that automatism is plausible assuming the account of “events given to the expert by the accused was accurate and truthful”.

[39] At paragraphs 188 to 192 of Stone, Bastarache J. provided some guidance on what additional evidence is relevant to the determination of whether there is sufficient evidence which would permit a properly instructed jury to find that the accused acted involuntarily on a balance of probabilities. The examples included:

1. The nature of the alleged automatism trigger;
2. The existence or non-existence of evidence which corroborates the accused’s claim of automatism, such as evidence of a documented medical history of automatistic-like dissociative states, or the lack of such evidence;
3. Corroborating evidence of bystanders who observed the accused’s physical presentation immediately before, during or after the alleged involuntary act. Such evidence must be approached very cautiously since automatism and rage may often be indistinguishable to untrained bystanders;
4. Motive - a motiveless act will generally lend plausibility to an accused’s claim of involuntariness. A question that trial judges should ask in assessing whether the defence has raised evidence which would permit a properly instructed jury to find that the accused acted involuntarily on a balance of probabilities is whether the crime in question is explicable without reference to the alleged automatism. If the answer to this question is no, the plausibility of the accused’s claim of involuntariness is heightened. If the answer is yes, the plausibility of the claim of involuntariness will be decreased.

[40] In summing up at para. 192, Bastarache J. held that in order to satisfy the evidentiary burden in cases involving claims of automatism, ‘the defence must make an assertion of involuntariness and call expert psychiatric or psychological evidence confirming that assertion”.

[41] In R. v. Brown, 2022 SCC 18, [2022] S.C.J. No. 18, at para. 50, the Court noted that extreme intoxication akin to automatism is an exigent defence requiring the accused to show that their consciousness was so impaired as to deprive them of all willed control over their actions. The Court emphasized that “this is not the same as simply waking up with no memory of committing a crime. A failure to remember does not prove that an individual was acting involuntarily. Nor is it the same as suffering a psychotic episode where physical voluntariness remains intact”.

[42] The Court in Brown further noted, at para. 56, that following Daviault, at common law, an accused was entitled to an acquittal if they could prove, on a balance of probabilities, that they acted involuntarily. However, in order to do so, the accused must adduce expert evidence.

THE AIR OF REALITY TEST

[43] In R. v. Schwartz, 1988 CanLII 11 (SCC), [1988] 2 S.C.R. 443, at para. 38, Dickson C.J., as he then was, clarified the distinction between, and the terminology to describe, the burden of establishing a case and the burden of putting an issue in play:

I prefer to use the terms “persuasive burden” to refer to the requirement of proving a case or disproving defences, and “evidential burden” to mean the requirement of putting an issue into play by reference to evidence before the court. The party who has the persuasive burden is required to persuade the trier of fact, to convince the trier of fact that a certain set of facts existed. Failure to persuade means that the party loses. The party with an evidential burden is not required to convince the trier of fact of anything, only to point out evidence which suggests that certain facts existed. The phrase “onus of proof” should be restricted to the persuasive burden, since an issue can be put into play without being proven.

[44] In R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, the accused was charged with first degree murder. The trial judge allowed the defence of self-defence to be put to the jury. McLachlin C.J., as she then was, at para. 48, framed the issue before the Court as “the correct evidential standard to be applied in determining whether there is an air of reality to the defence of self-defence on the facts of the case”.

[45] At para. 49 of Cinous, McLachlin C.J. found that the correct approach to the air of reality test was well established: “The test is whether there is evidence on the record upon which a properly instructed jury acting reasonably could acquit”. She added that this “single clearly-stated test applies to all defences” and that “there is no need to…apply different tests to different classes of cases”.

[46] At para. 50, McLachlin C.J. explained that the principle that a defence should be put to the jury if and only if there is an evidential foundation for it “reflects the practical concern that allowing a defence to go to the jury in the absence of an evidential foundation would invite verdicts not supported by the evidence, serving only to confuse the jury and get in the way of a fair trial and true verdict”.

[47] The basic requirement of an evidential foundation for defences gives rise to two well-established principles. First, a trial judge must put to the jury all defences that arise on the facts, whether or not they have been specifically raised by an accused. Where there is an air of reality to a defence, it should go to the jury. Second, a trial judge has a positive duty to keep from the jury defences lacking an evidential foundation. The air of reality test imposes only an evidential, and not a persuasive, burden on the accused: Cinous, paras. 51 and 52.

[48] In applying the air of reality test, a trial judge must consider the totality of the evidence, and assume the evidence relied upon by the accused is true. The evidential foundation can be indicated by evidence emanating from the direct examination or cross-examination of the accused, of defence witnesses, or of Crown witnesses. It can also rest upon the factual circumstances of the case or from any other evidential source on the record. There is no requirement that the evidence be adduced by the accused: Cinous, para. 53.

[49] The air of reality test is not intended to assess whether the defence is likely, unlikely, somewhat likely, or very likely to succeed at the end of the day. The question for the trial judge is whether the evidence discloses a real issue to be decided by the jury, and not how the jury should ultimately decide the issue. Cinous, para. 54.

[50] In Cinous, at para. 60, McLachlin C.J. observed that the air of reality test has remained consistent in Canadian jurisprudence:

The issue has remained the same, namely: whether a defence rests upon an evidential foundation warranting that it be put to a jury. Most significantly, the specific question to be asked by a trial judge in determining whether the threshold evidential burden for putting a defence to a jury is met, has remained constant. Cory J. stated the question in [R. v. Osolin, 1993 CanLII 54 (SCC), [1993] 4 S.C.R. 595], at para. 682:

The term “air of reality” simply means that the trial judge must determine if the evidence put forward is such that, if believed, a reasonable jury properly charged could have acquitted.

[51] In R. v. Fontaine, 2004 SCC 27, [2004] 1 S.C.R. 702, the accused was charged with first degree murder. At trial, he advanced the defence of mental disorder automatism. The trial judge refused to put that defence to the jury on the ground that the required evidential foundation had not been laid. The accused was convicted. The Court of Appeal quashed the conviction and ordered a new trial.

[52] The Supreme Court, in dismissing the Crown’s appeal, held that the accused’s defence of mental disorder automatism should have been put to the jury. The Court, at para. 70, following a comprehensive review of McLachlin C.J.’s reasons in Cinous, concluded that any prior confusion regarding the “air of reality” requirement has been resolved by Cinous:

With respect to all defences, the evidential burden is discharged if there is some evidence upon which a properly instructed jury acting reasonably could acquit on the basis of that defence [emphasis mine]. The “air of reality” test adds nothing to this well-established standard and should not be used to raise the governing evidential threshold or to introduce a persuasive requirement.

[53] The trial judge, in determining whether a defence is in play, must assume the truth of the evidence that tends to support it, leaving the reliability, credibility and weight of that evidence to be determined by the jury: Fontaine, para. 72. The Court summarized as follows, at para. 74:

In short, as regards all affirmative defences, I think it preferable to say that the evidential burden will be discharged where there is some evidence that puts the defence “in play”. And the defence will be in play whenever a properly instructed jury could reasonably, on account of that evidence, conclude in favour of the accused.

[54] The Court in Fontaine went on to discuss the evidential burden applicable to automatism. Referring to the Court’s earlier decision in R. v. Stone, 1999 CanLII 688 (SCC), [1999] 2 S.C.R. 290, the Court in Fontaine, at para. 81, stated as follows:

Writing for the majority in Stone, Bastarache J. found, at para. 170, that “voluntariness, rather than consciousness, is the key legal element of automatistic behaviour since a defence of automatism amounts to a denial of the voluntariness component of the actus reus”.

[55] At para. 82 of Fontaine, the Court noted that Bastarache J., in Stone at para. 182, went on to state that to meet the evidentiary burden in a case of automatism, “the defence must satisfy 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” [emphasis mine].

[56] At para. 90 of Fontaine, the Court clarified the distinction between the evidentiary burden and the persuasive burden when automatism is raised as a defence:

The ultimate issue is whether the jury is persuaded that the accused probably perpetrated the alleged criminal act in a state of automatism. For the issue to reach the jury, there must be some evidence upon which that finding could reasonably be made by a properly instructed jury acting judicially. If there is, the evidence is said to be “sufficient” – the evidentiary burden has been discharged and automatism is “in play” before the jury.

THE POSITION OF THE CROWN

[57] The Crown submits that the court must be cognizant of the clear distinction between the mental disorder provisions in section 16 of the Criminal Code and the defence of non-mental disorder automatism.

[58] The Crown submits that the mental disorder provisions in section 16 of the Criminal Code exempt an accused from criminal responsibility for an act committed while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of their actions or of knowing their actions were wrong. The Crown further submits that where psychiatric symptoms, including psychosis, are caused by voluntary drug consumption and drug induced intoxication, the defence of mental disorder is not available.

[59] Incapacity to appreciate the nature and quality of one’s actions or of knowing those actions are wrong are not part of the automatism analysis, according to the Crown. The Crown submits that a person can lack the capacity to appreciate the nature and quality of their actions and the capacity to know their acts are wrong yet still voluntarily engage in those actions.

[60] The Crown suggests that the defence of drug induced, non-mental disorder automatism requires proof that an accused was in an involuntary state such that, although conscious and capable of physical actions, the accused had no voluntary control over those actions. The threshold required to establish the defence is high – neither a complete lack of memory nor evidence that the accused was suffering from psychosis is sufficient, according to the Crown.

[61] The Crown submits that when the air of reality test is applied to the defence of non-mental disorder automatism to determine if that defence will be put to the jury, the trial judge must consider that an accused is required to establish this defence, before the trier of fact, on a balance of probabilities. This, in turn, raises the threshold in the application of the air of reality test such that the question for the trial judge, in determining whether to leave the defence to the jury, becomes whether a properly instructed jury acting reasonably could be satisfied on a balance of probabilities that the accused had acted involuntarily. The Crown submits that the evidence in this case does not meet that threshold.

[62] The Crown, citing R. v. Brown, 2022 SCC 18, 2022 SCC18, submits that the defence of non-mental disorder automatism requires an accused to show that their consciousness was so impaired as to deprive them of all willed control over their actions. Extreme intoxication short of automatism, a lack of memory or a psychotic episode where physical voluntariness remains intact are not sufficient, according to the Crown.

[63] The Crown submits that the law clearly establishes that evidence in support of the defence of non-mental disorder automatism must include expert psychiatric or psychological evidence supporting that defence.

[64] The Crown concedes that there is evidence that the accused smoked a large quantity of crack cocaine during the early morning hours of January 1, 2020, that she was acting bizarrely at the time of and after stabbing her son and that she had no memory of stabbing her son. The Crown further acknowledges that the expert opinion evidence of Dr. Kravtsenyuk was that the accused, at the time of the offence, was suffering from a drug induced psychosis.

[65] However, the Crown submits that Dr. Kravtsenyuk further opined that the accused would have nonetheless been able to understand that she was stabbing someone, would have been able to understand the lethality of her actions, including the consequences and that “she would more likely have control over her actions”.

[66] The Crown submits that there is no direct evidence from the accused that she was acting involuntarily when she stabbed her son. The Crown accepts that this gap in the evidence is capable of being bridged with expert evidence, potentially enabling a jury, considering all of the evidence, to conclude that the accused was probably acting involuntarily when she stabbed her son. The air of reality threshold is not met in this case, however, because the expert evidence of Dr. Kravtsenyuk does not bridge that evidentiary gap and does not support a conclusion that the accused was probably acting involuntarily, according to the Crown.

[67] The Crown submits that Dr. Kravtsenyuk did not testify, on direct or cross-examination, directly or indirectly, that the accused was acting involuntarily, or was in a dissociative state, when she stabbed her son. The Crown contends that the evidence of Dr. Kravtsenyuk is arguably more consistent with the suggestion that the accused was acting voluntarily, rather than involuntarily, when she stabbed her son.

[68] The Crown submits that the purpose of the air of reality test – ensuring that the jury is not left with a defence that is not legally sustainable - is relevant to the analysis. The defence is not legally sustainable in this case because the suggestion that the accused was acting involuntarily is simply not supported by the expert evidence. If a jury could not properly conclude that the conduct of the accused was probably involuntary, the defence of non-mental disorder automatism must not be left with them, according to the Crown.

[69] The Crown argues that the evidence of Dr. Kravtsenyuk – instead of supporting the defence of automatism – has the effect of showing the accused was in control of her actions.

[70] The Crown submits that on the evidence in this case, viewed in its entirety, a properly instructed jury could not find that the accused was probably acting involuntarily when she stabbed her son on January 1, 2020.

THE POSITION OF THE ACCUSED

[71] The accused submits that there is evidence to support the submission that the drug induced psychosis that Dr. Kravtsenyuk opined the accused was suffering when she stabbed her son probably reached the level of non-mental disorder automatism. As a result, a properly instructed jury, acting reasonably, could find that the accused’s actions were probably involuntary and the defence must be left with jury.

[72] The accused submits that Dr. Kravtsenyuk’s opinion that the accused was suffering from a drug induced psychosis at the time of the offence was not challenged or contradicted.

[73] In addition to the expert opinion evidence of Dr. Kravtsenyuk, the accused submits that multiple police officers who interacted with the accused immediately following the stabbing described her behaviour as crazy, erratic and bizarre. The officers also testified that the accused did not respond to verbal commands or physical direction and that she did not identify them as police officers or acknowledge her father or son in any way, according to the accused. The accused submits that the accused’s father and/or his partner also described the accused as “going bonkers and acting crazy and/or strange.

[74] The accused suggests that the booking room video is proximate, cogent evidence of the accused’s mental state immediately following the commission of the offence. The accused contends that it cannot be disputed that this evidence depicts the accused as unsteady on her feet to the point of requiring constant support from two officers to remain upright, disheveled, unkempt and incomprehensible.

[75] The accused acknowledges that the defence of non-mental disorder automatism must be supported by expert psychiatric or psychological evidence. The accused submits that the uncontradicted evidence of Dr. Kravtsenyuk clearly establishes that the accused was in a drug induced psychotic state when she stabbed her son.

[76] The accused further submits that the evidence Dr. Kravtsenyuk and of the lay witnesses, together with the evidence of the accused’s physical and mental condition as depicted in the booking room video, considered holistically as required, could lead a jury to the conclusion that the accused was probably acting involuntarily when she stabbed her son.

[77] The accused submits that she is only required to establish an evidential foundation for the defence of non-mental disorder automatism and that it is for the ultimate trier of fact – the jury – to determine if she has established the defence on a balance of probabilities. The accused submits that she has met the requisite evidential burden and that the defence therefore must be left with the jury.

DISCUSSION

[78] In my view, neither the applicable law nor the facts are in issue in this decision. Both have been extensively reviewed and I will not repeat them except as strictly necessary.

[79] Automatism refers to involuntary conduct in which the conscious mind is disassociated from the part of the mind that controls action. A person in a state of automatism has no control over their actions. A defence of automatism amounts to a denial of the voluntariness component of the actus reus.

[80] The law presumes that people act voluntarily. An accused who advances the defence of automatism must rebut the presumption of voluntariness and prove involuntariness on a balance of probabilities.

[81] To meet the evidentiary burden and have the defence put to the jury, the accused must persuade the trial judge that there is evidence upon which a properly instructed jury, acting reasonably, could find that the accused was probably acting involuntarily.

[82] To satisfy this evidentiary burden requires, at a minimum, an assertion of involuntariness and supporting or confirming psychiatric evidence. Other additional evidence may be relevant to the determination of whether there is some evidence which would permit a properly instructed jury to find that the accused acted involuntarily on a balance of probabilities.

[83] A trial judge must put to the jury all defences that arise on the facts, whether or not they have been specifically raised by the accused. Where there is an air of reality to a defence, it must go to the jury. However, a trial judge also has a positive duty to keep from the jury defences lacking an evidential foundation. The principle that a defence should be put to the jury if and only if there is an evidential foundation for it “reflects the practical concern that allowing a defence to go to the jury in the absence of an evidential foundation would invite verdicts not supported by the evidence…and get in the way of a fair trial and true verdict”: Cinous, para. 50.

[84] The trial judge, in determining whether a defence has an air of reality such that it is “in play”, must consider and assume the truth of all relevant evidence. The credibility of witnesses and the reliability and weight of the evidence is left to be determined by the jury.

[85] The accused’s evidence was that she smoked a considerable quantity of crack cocaine during the early morning hours of January 1, 2020 and that she has no memory of stabbing her son at approximately 7:00 a.m. that day. Dr. Kravtsenyuk’s expert opinion evidence was that the accused was in a drug induced psychotic state when she stabbed her son.

[86] The evidence of all lay witnesses is consistent – the accused was acting erratically and bizarrely, moaning and wailing incomprehensively in the period of time immediately following the stabbing. The booking room video is consistent with this evidence.

[87] There is no evidence of an “automatistic trigger” to account for the accused’s alleged involuntary behaviour, other than her cocaine consumption and some evidence as to her being occasionally “frustrated” by her son’s behaviour. The accused herself, having no memory of stabbing her son, did not directly testify that she was acting involuntarily. There is no evidence which in any way corroborates the accused’s claim of automatism, such as a documented medical history of automatistic-like dissociative states. Significantly, there is no evidence of a motive for the horrific actions of the accused. Although the accused did testify that she occasionally became angry with K.L., there was no evidence that her actions on January 1, 2020, were provoked.

[88] In my view, the evidence of Dr. Kravtsenyuk is critical to the issue of whether the accused has established an evidential foundation for the defence of non-mental disorder automatism such that I am required to put that defence to the jury.

[89] Dr. Kravtsenyuk did not, directly or indirectly, testify that the accused was, or even that she may have been, acting involuntarily or in a dissociative state when she stabbed her son. Dr. Kravtsenyuk was privy to all relevant evidence, including the booking room video. Dr. Kravtsenyuk was not asked to opine on whether the consumption of a large quantity of crack cocaine could induce an automatistic condition in an individual.

[90] I note the comments of Bastarache J. at para. 124 of Stone, where he suggests that the evidence of “bystanders”, who can provide evidence about the appearance of an accused at the time of the incident, can be important evidence in assessing the validity of a claim of dissociation. In this case, Dr. Kravtsenyuk, an expert in forensic psychiatry, observed the accused for the duration of the booking room video, taken at a point in time very shortly after the accused stabbed her son.

[91] Dr. Kravtsenyuk herself testified that “it was helpful to watch the video…and being able to see the…most [proximate] mental status of [the accused]”. She was asked to comment on her observations of the accused during this video on both direct and cross examination.

[92] In direct examination, Dr. Kravtsenyuk was asked, in three successive questions, to provide her opinion as to the mental state of the accused, given all of the evidence she had observed “and especially emphasizing the observations…made with respect to the [booking room video]”. Dr. Kravtsenyuk testified that the booking room video supported her previously stated opinion that the accused was under the influence of stimulants and suffering a drug induced psychosis.

[93] Dr. Kravtsenyuk was then specifically asked for her opinion as to whether or not the accused “had control of her involuntary actions at the time of the offence”. She replied that “I would hold the previously stated opinion that [the accused] was under the influence of substances which affected her ability to appreciate the actions that she was doing at the time…”.

[94] In cross-examination, when commenting on the fact that viewing the booking room video was helpful for her, Dr. Kravtsenyuk again testified that her observations of the accused on that video “corresponded to an individual who was clearly impaired and from what I know, under the influence”.

[95] At the outset of the cross-examination of Dr. Kravtsenyuk, Crown counsel was careful to make it abundantly clear that Dr. Kravtsenyuk clearly appreciated the legal definition of automatism and the distinction between automatism and psychosis.

[96] The evidence of the defence expert psychiatrist does not support the assertion that the accused acted involuntarily when she stabbed her son on January 1, 2020. The accused clearly had no memory of that tragic event. Dr. Kravtsenyuk’s expert opinion was that the accused was in a drug induced psychotic state at the time of the offence. That opinion is unchallenged. However, neither the accused’s lack of memory or the fact that she was in a psychotic state, or both, amount to non-mental disorder automatism.

[97] I accept the submissions of the Crown that Dr. Kravtsenyuk also testified that the accused, while in this drug induced psychotic state, would have been able to understand that she was stabbing someone and able to understand the lethality and consequences of doing so. When asked by the Crown if the accused would not then have had control over her actions, Dr. Kravtsenyuk replied that the accused “would more likely have control over her actions”.

[98] “In order to meet the air of reality test and have the defence of non-mental disorder automatism left with the jury, the accused must establish an evidentiary foundation upon which a jury, properly instructed and acting reasonably, could find on a balance of probabilities, that the accused acted involuntarily when she stabbed her son on January 1, 2020 and caused his death. Put another way, is there evidence upon which the jury could find that the accused was probably acting involuntarily.

[99] There is evidence that the accused consumed crack cocaine in the hours before the alleged offence took place. There is evidence that the accused was in a state of drug induced psychosis around the time of the alleged offence. Critically though, the assertion that the accused was acting involuntarily is not supported by the evidence of the defence’s own psychiatric expert.

[100] I accept the submission of the Crown that the defence of non-mental disorder automatism does not meet the air of reality test because the assertion that the accused acted involuntarily is simply not supported by the expert evidence taken at its highest, and when considered together with all other evidence.

[101] Allowing the defence to go to the jury in light of that significant and material evidentiary gap would be inviting a verdict which is not supported by the evidence. Trial judges have a positive, gatekeeping duty to keep from the jury defences lacking an evidential foundation. The defence of non-mental disorder automatism will not be left with the jury.

The Honourable Mr. Justice J.S. Fregeau

Released: December 1, 2022

COURT FILE NO.: CR-21-0097-00

DATE: 2022-12-01

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING

• and –

Courtney Labelle

Accused

Ruling as to Air of Reality and Defence of Non-Mental Disorder Automatism

Fregeau J.

Released: December 1, 2022

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