Supreme Court Judgments

R. v. Stone, [1999] 2 S.C.R. 290

Bert Thomas Stone                                                                            Appellant

v.

Her Majesty The Queen                                                                   Respondent

and between

Her Majesty The Queen                                                                   Appellant

v.

Bert Thomas Stone                                                                            Respondent

and

The Attorney General of Canada,

the Attorney General for Ontario and

the Attorney General for Alberta                                                     Interveners

Indexed as:  R. v. Stone

File Nos.:  25969, 26032.

1998:  June 26; 1999:  May 27.

Present:  Lamer C.J. and L’Heureux‑Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ.

on appeal from the court of appeal for british columbia

Criminal law -- Defences -- Insane and non-insane automatism -- Accused killing wife after she had allegedly assaulted him verbally -- Accused convicted of manslaughter and sentenced to seven years’ imprisonment -- Whether accused entitled to have either or both automatism defences left with the jury -- Criminal Code, R.S.C., 1985, c. C-46, ss. 2 , 16 .

Courts -- Production of documents --Privilege -- Defence document referred to in opening remarks -- Document ordered produced for Crown -- Whether production properly ordered -- Whether miscarriage of justice resulted from order for production.

Sentencing -- Verdict – Jury instructed on murder and provocation -- Accused convicted of manslaughter and sentenced to seven years’ imprisonment -- Whether provocation properly considered in reducing verdict of murder and as mitigating  factor in determining sentence -- Whether sentence fit and properly reflecting gravity of the offence and moral culpability of the accused -- Criminal Code, R.S.C., 1985, c. C-46, ss. 232 , 687 , 718.2 .

The accused admitted stabbing his wife 47 times but claimed to have done it while in an automatistic state brought on by nothing more than his wife’s insulting words.  The accused testified that he felt a “whoosh” sensation washing over him.  When his eyes focussed again, he was staring straight ahead and felt something in his hand.  He was holding a six-inch hunting knife.  He looked over and saw his wife slumped over on the seat.  He disposed of the body in his truck tool box, cleaned up, drove home, prepared a note for his step-daughter, and checked into a hotel.  He then collected a debt, sold a car and flew to Mexico.  While in Mexico, the accused awoke one morning to the sensation of having his throat cut.  In trying to recall his dream, he remembered stabbing his wife twice in the chest before experiencing a “whooshing” sensation.  He returned to Canada about six weeks later, spoke to a lawyer and surrendered himself to police.  He was charged with murder.

In his defence, the accused claimed:  insane automatism, non-insane automatism, lack of intent, and alternatively, provocation.  The trial judge ruled that the defence had laid a proper evidentiary foundation for insane, but not non-insane, automatism.  Accordingly, he instructed the jury on insane automatism, intention in relation to second degree murder and provocation.  The accused was found guilty of manslaughter and sentenced to seven years’ imprisonment.

In opening remarks at trial, counsel for the defence stated that the evidence which would be given by the defence psychiatrist would support the defence of automatism.  The defence only made this expert’s report  available to the Crown after the latter successfully brought a motion for disclosure.

The Court of Appeal upheld accused’s conviction and dismissed the Crown’s appeal of the sentence.  Both the accused and the Crown appealed to this Court.  At issue here were:  (1) whether the “defence” of sane automatism should have been left to the jury; (2) whether the defence psychiatric report was properly ordered disclosed to the Crown; and (3)(a) whether the sentencing judge could consider provocation as a mitigating factor for manslaughter where the same provocation had already been considered in reducing the charge to manslaughter; and (b) whether the sentence was fit and properly reflected the gravity of the offence and the moral culpability of the offender.

Held (Lamer C.J. and Iacobucci, Major and Binnie JJ. dissenting on the appeal from conviction):  The accused’s appeal from conviction should be dismissed.  The Crown’s sentence appeal should also be dismissed.

(1)  “Defence” of sane automatism

Per L’Heureux-Dubé, Gonthier, Cory, McLachlin and Bastarache JJ.:  Two forms of automatism are recognized at law.  Non-insane automatism arises where involuntary action does not stem from a disease of the mind and entitles the accused to an acquittal.  Insane automatism, on the other hand, arises only where involuntary action is found, at law, to result from a disease of the mind and is subsumed by the defence of mental disorder.  A successful defence of insane automatism will trigger s. 16  of the Criminal Code  and result in a verdict of not criminally responsible on account of mental disorder.

The law presumes that people act voluntarily.  Since a defence of automatism amounts to a claim that one’s actions were not voluntary, the accused must establish a proper foundation for this defence before it can be left with the trier of fact.  This is the equivalent of satisfying the evidentiary burden for automatism.  Once the evidentiary foundation has been established, the trial judge must determine whether the condition alleged by the accused is mental disorder or non-mental disorder automatism.

A two-step approach should therefore apply to all cases involving claims of automatism.  First, the defence must establish a proper foundation for automatism.  This burden is only met where the trial judge concludes that there is evidence upon which a properly instructed jury could find that the accused acted involuntarily on a balance of probabilities.  In all cases, this will require that the defence make an assertion of involuntariness and call confirming psychiatric evidence.  Other relevant factors to be considered in determining whether this defence burden has been satisfied include:  the severity of the triggering stimulus; corroborating evidence of bystanders; corroborating medical history of automatistic-like dissociative states; whether there is evidence of a motive for the crime; and whether the alleged trigger of the automatism is also the victim of the automatistic violence.  No one factor is determinative.  The trial judge must weigh all of the available evidence on a case-by-case basis.  Placing this burden on the defence, while constituting a limitation of an accused’s s. 11(d) Charter rights, is justified under s. 1.

Second, given the establishment of a proper foundation, the trial judge must determine whether the condition alleged by the accused is mental disorder or non-mental disorder automatism.  The assessment of which form of automatism should be left with the trier of fact comes down to the question of whether or not the alleged condition is a mental disorder.  Mental disorder is a legal term defined in the Code as “a disease of the mind”.  The question of what conditions are included in that term is a question of mixed law and fact because it involves an assessment of the particular evidence in the case rather than a general principle of law.  Trial judges should start from the proposition that the condition is a disease of the mind and then determine whether the evidence in the particular case takes the condition out of the disease of the mind category.

There are two distinct approaches to the disease of the mind inquiry.  Under the first, the internal cause theory, the trial judge must compare the accused’s automatistic reaction to the way one would expect a normal person to react in order to determine whether the condition the accused claims to have suffered from is a disease of the mind.  The trial judge must consider the nature of the alleged trigger of the automatism and determine whether a normal person might have reacted to it by entering an automatistic state.  This comparison is a contextual objective one.  Evidence of an extremely shocking trigger will be required to establish that a normal person might have reacted to it by entering an automatistic state as the accused claims to have done.

The objective element of the internal cause theory does not violate ss. 7 (the fundamental principles of justice) and 11(d) (the right to be presumed innocent) of the Charter.  The objective inquiry is applied to assess whether the condition claimed by the accused is a disease of the mind only after a subjective inquiry has been completed by the trial judge into whether there is evidence upon which a properly instructed jury could find, on a balance of probabilities, that the accused acted involuntarily.  The objective standard affects only the classification of the defence rather than the assessment of whether the actus reus of the offence has been established.  That is, the objective component does not affect the burden of proof on the issue of whether the accused voluntarily committed the offence.  Moreover, the impact of the objective comparison is limited even with regard to the disease of the mind inquiry because the internal cause theory is only an analytical tool.  Consideration of the subjective psychological make-up of the accused in the internal cause theory would frustrate the very purpose of making the comparison which is the determination of whether the accused was suffering from a disease of the mind in a legal sense.

The second approach, the continuing danger theory, holds that any condition which is likely to present a recurring danger to the public should be treated as a disease of the mind.  While a continuing danger suggests a disease of the mind, a finding of no continuing danger does not preclude a finding of a disease of the mind.  Trial judges may consider any of the evidence before them in order to assess the likelihood of recurrence of violence and in particular the psychiatric history of the accused and the likelihood that the trigger alleged to have caused the automatistic episode will recur. 

The internal cause theory and the continuing danger theory should not be viewed as alternative or mutually exclusive approaches to the disease of the mind inquiry.  Rather, a holistic approach should be adopted under which either or both of these approaches to the inquiry may be considered by trial judges.  It is therefore more appropriate to refer to the internal cause factor and the continuing danger factor.  In addition to these two factors, policy factors may also be considered in determining whether the condition the accused claims to have suffered from is a disease of the mind.

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 as the trial judge will have already found that there is evidence upon which a properly instructed jury could find, on a balance of probabilities, that the accused acted involuntarily.  The question for the trier of fact will then be whether the defence has proven, on a balance of probabilities, that the accused acted involuntarily.  A positive answer to this question by the trier of fact will result in an absolute acquittal.  On the other hand, if the trial judge concludes that the alleged condition is a disease of the mind, only mental disorder automatism will be left with the trier of fact.  The case will then proceed like any other s. 16 case, leaving for the trier of fact the question of whether the defence has proven, on a balance of probabilities, that the accused suffered from a mental disorder which rendered him or her incapable of appreciating the nature and quality of the act in question.  The determination of this issue by the trier of fact will absorb the question of whether the accused in fact acted involuntarily.

No substantial wrong or miscarriage of justice occurred here.

Per Lamer C.J. and Iacobucci, Major and Binnie JJ. (dissenting):  The  defence of non-mental disorder automatism should not have been taken away from the jury in light of the trial judge’s evidentiary ruling that there was evidence the accused was unconscious throughout the commission of the offence.  The correctness of the ruling was affirmed by the British Columbia Court of Appeal.

Automatism is conceptually a sub-set of the voluntariness requirement, which in turn is part of the actus reus, and accordingly puts in issue the Crown’s ability to prove all of the elements of the offence beyond a reasonable doubt.  While sane individuals are presumed to be responsible for their voluntary acts or omissions,  no such inference of voluntariness can be drawn if the accused leads credible evidence, supported by expert testimony, that he was unconscious throughout the commission of the offence.   A judge-made classification of situations into mental disorder automatism and non-mental disorder automatism cannot relieve the Crown of the obligation to prove all elements of the offence, including voluntariness.  Otherwise there would be strong objections under s. 7 (fundamental principles of justice) and s. 11(d) (presumption of innocence) of the Charter, and no attempt was made in this case to provide a s. 1 justification.  Similar Charter objections apply to any attempt to add  to the evidential burden on the accused the further persuasive or legal burden to establish automatism on a balance of probabilities.

The law on automatism is correctly concerned with public safety.  The risk of recurrence is legitimately part of the “policy component” of the legal analysis of “disease of the mind”.  In the present case, neither psychiatrist considered recurrence a significant possibility. 

The mental disorder provisions of the Criminal Code  were not appropriate to resolve the automatism issue here.  It was wrong of the courts to require the accused to substitute for his chosen defence of involuntariness the conceptually quite different plea of insanity.  Both Crown and defence psychiatrists agreed that the accused did not suffer from a medically defined disease of the mind.  He was either unconscious at the time of the killing or he was not telling the truth at the time of the trial.  This was a question for the jury.  The statutory inquiry into whether he was “suffering from a mental disorder” that rendered him “incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong” are qualitative questions that are not really responsive to his allegation that he was not conscious of having acted at all.  While s. 16 of the Code may provide an appropriate structure to resolve cases of medical “diseases of the mind”, it may not be responsive to the real issues where the “disease of the mind” derives from legal classification, rather than medical classification.  If the jury was satisfied that the s. 16 requirements were met, that would end the matter:  the accused would have been found not criminally responsible on account of mental disorder (NCRMD).  He or she would not be permitted to ignore NCRMD status and seek a full acquittal on the basis of involuntariness.  However,  if the jury rejects NCRMD status, it should still be left with the elementary instruction that the accused is entitled to an acquittal if the Crown fails to establish beyond a reasonable doubt all of the elements of the offence, including voluntariness.

The evidence established that there are states of automatism where perfectly sane people lose conscious control over their actions.  Once the trial judge exercised his gatekeeper function to screen frivolous or feigned claims, it was for the jury to make up its mind on the credibility of the plea of automatism.  This jurisdiction should not be removed by “judicially created policy”.  It is to be expected that the jury will subject the evidence of involuntariness to appropriate scrutiny.  There was discussion in Rabey v. The Queen about the need to maintain the credibility of the justice system.  The jury is as well placed as anyone in the justice system to uphold its credibility.  The bottom line is, after all, that the task of weighing the credibility of such defences was confined by Parliament to the jury.  The Court should respect the allocation of that responsibility.

(2)  Disclosure

Per the Court:  The defence waived the privilege in its psychiatrist’s report at the opening of its case when counsel disclosed the elements in that report favourable to his client.  In any event, if disclosure was premature, the accused suffered no prejudice.  A witness, once on the stand, is no longer offering private advice to a party but rather is offering an opinion for the assistance of the court.  The opposing party must be given access to the foundation of such opinions to test them adequately.  Thus, even if the defence counsel’s opening address had been insufficient to constitute a waiver, s. 686(1)(b)(iii) of the Code would properly be applied to cure the error.

(3)  Sentence Appeal

Per the Court:  The sentencing judge must consider all of the circumstances of the offence, including whether it involved provocation.  An accused does not gain a “double benefit” if provocation is considered in reducing a verdict from murder to manslaughter under s. 232 of the Code.  Rather, s. 232 provides an accused with a single benefit and to give it full effect, provocation must be considered in sentencing as well.

The judiciary must bring the law into harmony with prevailing social values.  A spousal connection between offender and victim is recognized as an aggravating factor in sentencing under s. 718.2(a)(ii) and under the common law.  Here, the Crown failed to establish that the sentencing judge did not properly consider the domestic nature of this offence in reaching his decision on sentence.

Appellate courts, in minimizing disparity of sentences in cases involving similar offences and similar offenders, may fix ranges for particular categories of offences as guidelines for lower courts provided they clearly describe the category created and the logic behind the range appropriate to it.  They must not, however, interfere with sentencing judges’ duty to consider all relevant circumstances in sentencing.

Variation of sentence should only be made if an appellate court is convinced that a sentence is “not fit” or “clearly unreasonable”, provided the trial judge has not erred in principle, failed to consider a relevant factor or overemphasized the appropriate factors.  This was not the case here.

Cases Cited

By Bastarache J.

Applied:  R. v. Shropshire, [1995] 4 S.C.R. 227; considered:  Rabey v. The Queen, [1980] 2 S.C.R. 513, aff’g (1977), 17 O.R. (2d) 1; R. v. Parks, [1992] 2 S.C.R. 871; R. v. Daviault, [1994] 3 S.C.R. 63; referred to:  R. v. MacLeod (1980), 52 C.C.C. (2d) 193; R. v. Archibald (1992), 15 B.C.A.C. 301; R. v. Eklund, [1985] B.C.J. No. 2415 (QL); R. v. Peruta (1992), 78 C.C.C. (3d) 350, sub nom. Brouillette c. R., [1992] R.J.Q. 2776; Hodgkinson v. Simms (1988), 33 B.C.L.R. (2d) 129; R. v. M. (C.A.), [1996] 1 S.C.R. 500; R. v. K. (1970), 3 C.C.C. (2d) 84; R. v. Chaulk, [1990] 3 S.C.R. 1303; Bratty v. Attorney-General for Northern Ireland, [1963] A.C. 386; R. v. Falconer (1990), 50 A. Crim. R. 244; R. v. Cottle, [1958] N.Z.L.R. 999; Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748; R. v. Théroux, [1993] 2 S.C.R. 5; R. v. Szymusiak, [1972] 3 O.R. 602; Hill v. Baxter, [1958] 1 Q.B. 277; State v. Caddell, 215 S.E.2d 348 (1975); Fulcher v. State, 633 P.2d 142 (1981); Polston v. State, 685 P.2d 1 (1984); State v. Fields, 376 S.E.2d 740 (1989); R. v. Swain, [1991] 1 S.C.R. 933; General Electric Co. v. Joiner, 118 S.Ct. 512 (1997); R. v. Cameron (1992), 71 C.C.C. (3d) 272; R. v. Bevan, [1993] 2 S.C.R. 599; R. v. McDonnell, [1997] 1 S.C.R. 948; R. v. Laberge (1995), 165 A.R. 375; R. v. Martineau, [1990] 2 S.C.R. 633; R. v. Creighton, [1993] 3 S.C.R. 3; R. v. Campbell (1991), 70 Man. R. (2d) 158; R. v. Woermann (1992), 81 Man. R. (2d) 255; Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219; R. v. Lavallee, [1990] 1 S.C.R. 852; R. v. Seaboyer, [1991] 2 S.C.R. 577; Weatherall v. Canada (Attorney General), [1993] 2 S.C.R. 872; R. v. Doyle (1991), 108 N.S.R. (2d) 1; R. v. Brown (1992), 13 C.R. (4th) 346; R. v. Pitkeathly (1994), 29 C.R. (4th) 182; R. v. Jackson (1996), 106 C.C.C. (3d) 557; R. v. Edwards (1996), 28 O.R. (3d) 54.

By Binnie J. (dissenting)

Bratty v. Attorney-General for Northern Ireland, [1963] A.C. 386; Rabey v. The Queen, [1980] 2 S.C.R. 513, aff’g (1977), 17 O.R. (2d) 1; R. v. MacLeod (1980), 52 C.C.C. (2d) 193; R. v. Parks, [1992] 2 S.C.R. 871; R. v. Peruta (1992), 78 C.C.C. (3d) 350, sub nom. Brouillette c. R., [1992] R.J.Q. 2776; Hodgkinson v. Simms (1988), 33 B.C.L.R. (2d) 129; R. v. Szymusiak, [1972] 3 O.R. 602; R. v. Daviault, [1994] 3 S.C.R. 63; R. v. Théroux, [1993] 2 S.C.R. 5; R. v. Chaulk, [1990] 3 S.C.R. 1303; R. v. K. (1970), 3 C.C.C. (2d) 84; R. v. Falconer (1990), 50 A. Crim. R. 244; R. v. Tolson (1889), 23 Q.B.D. 168; Parnerkar v. The Queen, [1974] S.C.R. 449; R. v. Cameron (1992), 71 C.C.C. (3d) 272; R. v. Schwartz, [1988] 2 S.C.R. 443; Leary v. The Queen, [1978] 1 S.C.R. 29; Linney v. The Queen, [1978] 1 S.C.R. 646; R. v. Thibert, [1996] 1 S.C.R. 37;  R. v. Lavallee, [1990] 1 S.C.R. 852; R. v. Malott, [1998] 1 S.C.R. 123; Latour v. The King, [1951] S.C.R. 19; R. v. Osolin, [1993] 4 S.C.R. 595; State v. Hinkle, 489 S.E.2d 257 (1996); Hawkins v. The Queen (1994), 72 A. Crim. R. 288; R. v. Cottle, [1958] N.Z.L.R. 999; Police v. Bannin, [1991] 2 N.Z.L.R. 237; R. v. Quick, [1973] 3 All E.R. 347; R. v. Hennessy (1989), 89 Cr. App. R. 10; M‘Naghten’s Case (1843), 10 Cl. & Fin. 200, 8 E.R. 718; R. v. Martineau, [1990] 2 S.C.R. 633; Hill v. Baxter, [1958] 1 Q.B. 277; R. v. Burgess, [1991] 2 All E.R. 769; R. v. Kemp, [1956] 3 All E.R. 249; R. v. Sullivan, [1984] A.C. 156; R. v. Swain, [1991] 1 S.C.R. 933; R. v. Corbett, [1988] 1 S.C.R. 670; R. v. Bernard, [1988] 2 S.C.R. 833; R. v. Hill, [1986] 1 S.C.R. 313.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms , ss. 1 , 7 , 11( d ) , (f).

Criminal Code , R.S.C., 1985, c. C-46 , ss. 2  (“mental disorder”) [ad. 1991, c. 43, s. 1], 16 [rep. ibid., s. 2], 232, 235, 236, Part XX.1, 672.34 [ad. 1991, c. 43, s. 4], 672.54 [ad. idem], 686(1)(b)(iii), 687(1), 718.2 [ad. 1995, c. 22, s. 6], (a) [ad. idem], (ii) [am. 1997, c. 23, s. 17].

Authors Cited

Campbell, Kenneth L.  “Psychological Blow Automatism:  A Narrow Defence” (1980-81), 23 Crim. L.Q. 342.

Canada.  Department of Justice.  Proposals to amend the Criminal Code (general principles).  Ottawa:  Department of Justice Canada, 1993.

Canadian Psychiatric Association.  Brief to the House of Commons Standing Committee on Justice and the Solicitor General.  RE:  Proposed Revisions for Automatism as Contained in the Draft, “Toward a New General Part for the Criminal Code of Canada ”.  Prepared by Drs. Maralyn MacKay and Nizar Ladha.  Ottawa:  1992.

Grant, Isabel, Dorothy Chunn and Christine Boyle.  The Law of Homicide, loose-leaf ed.  Scarborough, Ont.:  Carswell, 1994 (updated 1998, release 1).

Grant, Isabel and Laura Spitz.  Case Comment on R. v. Parks (1993), 72 Can. Bar Rev. 224.

Halsbury’s Laws of England, vol. 11(1), 4th ed. (reissue).  London:  Butterworths, 1990.

Holland, Winnifred H.  “Automatism and Criminal Responsibility” (1982-83), 25 Crim. L.Q. 95.

LaFave, Wayne R. and Austin W. Scott.  Substantive Criminal Law, vol. 1.  St. Paul, Minn.:  West Publishing Co., 1986.

Sopinka, John, Sidney N. Lederman and Alan W. Bryant.  The Law of Evidence in Canada.  Toronto:  Butterworths, 1992.

Stuart, Don.  Canadian Criminal Law:  A Treatise, 3rd ed.  Scarborough, Ont.:  Carswell, 1995.

Tollefson, Edwin A. and Bernard Starkman.  Mental Disorder in Criminal Proceedings.  Scarborough, Ont.:  Carswell, 1993.

Williams, Glanville.  Textbook of Criminal Law, 2nd ed.  London:  Stevens, 1983.

APPEAL from a judgment of the British Columbia Court of Appeal (1997), 86 B.C.A.C. 169, 142 W.A.C. 169, 113 C.C.C. (3d) 158, 6 C.R. (5th) 367, [1997] B.C.J. No. 179 (QL), dismissing the accused’s appeal from his conviction of manslaughter by

Brenner J.  Appeal dismissed, Lamer C.J. and Iacobucci, Major and Binnie JJ. dissenting.

APPEAL from a judgment of the British Columbia Court of Appeal (1997), 89 B.C.A.C. 139, 145 W.A.C. 139, [1997] B.C.J. No. 694 (QL), dismissing the Crown’s appeal from the sentence imposed on the accused by Brenner J.  Appeal dismissed.

David G. Butcher and Derek A. Brindle, for Bert Thomas Stone.

Gil D. McKinnon, Q.C., Ujjal Dosanjh, Q.C., and Marion Paruk, for Her Majesty the Queen.

Graham Garton, Q.C., for the intervener the Attorney General of Canada.

Gary T. Trotter, for the intervener the Attorney General for Ontario.

Written submissions only by Jack Watson, Q.C., for the intervener the Attorney General for Alberta.

The reasons of Lamer C.J. and Iacobucci, Major and Binnie JJ. were delivered by

//Binnie J.//

1                                   Binnie J. (dissenting as to appeal from conviction^*) -- A fundamental principle of the criminal law is that no act can be a criminal offence unless it is performed or omitted voluntarily.  In this case the appellant acknowledges that he killed his wife.  He stabbed her 47 times with his knife in a frenzy.  His defence was that he lost consciousness when his mind snapped under the weight of verbal abuse which the defence psychiatrist characterized as “exceptionally cruel” and “psychologically sadistic”.  The trial judge ruled in favour of the appellant that “there is evidence of unconsciousness throughout the commission of the crime”, and the British Columbia Court of Appeal agreed ((1997), 86 B.C.A.C. 169, at p. 173) that “a properly instructed jury, acting reasonably, could find some form of automatism”. 

2                                   The appellant had elected trial by jury.  He says he was entitled to have the issue of voluntariness, thus properly raised, determined by the jury.  He says that there was no proper legal basis for the courts in British Columbia to deprive him of the benefit of an evidentiary ruling which put in issue the Crown’s ability to prove the actus reus of the offence. 

3                                   The trial judge ruled that the evidence of involuntariness was only relevant (if at all) to a defence of not criminally responsible by reason of mental disorder (NCRMD).  This was upheld by the Court of Appeal.  When it is appreciated that all of the experts agreed the appellant did not suffer from any condition that medicine would classify as a disease of the mind, it is perhaps not surprising that the jury found the accused to be sane.  He was convicted of manslaughter.  The contention of the appellant that the act of killing, while not the product of a mentally disordered mind, was nevertheless involuntary, was never put to the jury.       

4                                   The appellant argues that the judicial reasoning that effectively took the issue of voluntariness away from the jury violates the presumption of his innocence and his entitlement to the benefit of a jury trial guaranteed by s. 11(d) and (f) and is not saved by s. 1  of the Canadian Charter of Rights and Freedoms .

5                                   The appellant also objects to the compelled disclosure of his psychiatrist’s expert report to the Crown contrary, he says, to his claim of privilege.  His argument is that the result of such disclosure was to conscript against him his own description of events to the defence psychiatrist, thereby violating his right to remain silent. 

6                                   In my view, it follows from the concurrent findings in the courts below (that the appellant successfully put in issue his consciousness at the time of the offence) that he was entitled to the jury’s verdict on whether or not his conduct, though sane, was involuntary.  That issue having been withdrawn from the jury, and the Crown thereby having been relieved of the one real challenge to its proof, the appellant is entitled to a new trial.

I. Facts

7                                          I do not propose to repeat Justice Bastarache’s summary of the facts except where necessary to explain our divergence in the result.

8                                   The prelude to the knife attack was a day-long drive from the Okanagan Valley to Vancouver, during which, according to the appellant, his wife created an explosive situation by her aggressive verbal attacks.  The appellant had planned to take his sons out to dinner and a movie, but abandoned these plans because of his wife’s objection.  The appellant instead visited briefly with his sons.  His wife waited in the truck.  According to the appellant, his wife accelerated her attack on him upon his return to the driver’s seat.  She taunted him that his former wife had been “fucking all my friends” (while the two had been married) and that “[my sons] weren’t my kids at all”.  As the verbal abuse continued, he said, “I can see she’s losing it”, so he pulled into a vacant lot and “she’s still yelling at me that I’m nothing but a piece of shit”.  His wife then allegedly said she had told the police that he had been abusing her and that they were about to arrest him, and threatened to get a court order to force him out of their home leaving her in the house, collecting alimony and child support.  He says she told him that she felt sick every time he touched her, that he was a “lousy fuck” with a small penis, and that she would never have sex with him again.  As stated, a psychological report filed by the defence at trial characterized the comments attributed to Mrs. Stone as “exceptionally cruel, psychologically sadistic, and profoundly rejecting”.

9                                   The appellant finally pulled off the highway in Burnaby to a vacant lot and described sitting in the truck with his head down, listening to his wife, and thinking that he and his boys did not deserve to be treated this way and “it’s just kind of fading away”.  From there, he said, he remembered only a “whooshing” sensation washing over him, from his feet to his head.  According to his account, when subsequently his eyes focussed, he was staring straight ahead and felt something in his hand.  He looked down and saw his wife slumped over on the seat.  He was holding the hunting knife that he kept stored in the truck.  His wife was dead, having been stabbed 47 times.  The appellant says that, at that time, he had no memory of stabbing his wife.

10                               After 10 or 15 minutes, the appellant put his wife’s body in a toolbox in the back of the truck and returned home.  The next day, he sold some assets, settled some debts, and flew to Mexico.  At trial the appellant recounted that one morning (while in Mexico), he awoke with the sensation of having his throat cut.  In trying to recall what he had been dreaming about, the appellant remembered his wife’s being stabbed in the chest. While the appellant maintained in his evidence-in-chief that he did not remember picking up the knife or taking it from its sheath, he did admit in cross-examination, when confronted with prior statements attributed to him in the psychiatrist’s report, to a vague recollection through the dream of stabbing his wife twice in the chest before the “whooshing” sensation.  His psychiatrist, Dr. Paul Janke, testified that the appellant had told him that, while in Mexico, he “became aware of a memory of having a knife in his hand and stabbing Donna Stone twice in the chest before having the ‘whooshing’ sensation . . . whenever we talked about the stabbing, it would be in the context of stabbing twice and, and then having the whooshing experience” (emphasis added).  One of Dr. Janke’s tasks was to separate out the effects of amnesia after the event from the alleged unconsciousness during the events themselves, for as noted by Lord Denning in Bratty v. Attorney-General for Northern Ireland, [1963] A.C. 386, at p. 409: “Loss of memory afterwards is never a defence in itself, so long as he was conscious at the time”.

11                               Roughly six weeks after the stabbing, the appellant returned to Canada and surrendered to police.

12                               At trial, Dr. Janke testified for the defence that, at the time of the stabbing, the appellant was in a dissociative state caused by “extreme” psychological blows:

Q    But the comments that you reviewed and that are in evidence between Mrs. Stone and Mr. Stone aren’t such, are they, of such an extraordinary nature that they might reasonably be presumed to affect the ordinary person?

A    We -- I would be astonished if somebody told me that being, being informed that they were about to lose their home and all their possessions; that their, what they thought were their children by a former wife were actually the product of affairs that the wife was having; and ultimately being told that you had a small penis and were poor in bed, most men would find that an extraordinary blow.  If somebody told me they weren’t upset by that, I would be concerned about it.

Q    No question –

A    Those are extreme --

Q    -- that he was upset.

A    No, those are extreme blows.

13                               The defence was confronted with the decision of this Court in Rabey v. The Queen, [1980] 2 S.C.R. 513, which was said to hold that unless a state of automatism can be attributed on the evidence to some cause external to the mind of the accused, it must be related to a plea of insanity.

14                               The appellant tried to run simultaneously both the non-insane and insane branches of the automatism plea, as well as provocation.  He suggested, based on an obiter dictum in Rabey, supra, that the “psychological shock” inflicted on him was of so great a magnitude that it would have unhinged the ordinary person, thus qualifying as “externally” induced automatism which had nothing to do with a disease of the mind in any organic or other medical sense.  He submitted in the alternative that if, contrary to the psychiatric evidence, the courts were to insist on characterizing his condition as a disease of the mind, then a finding of NCRMD would be consistent with Dr. Janke’s evidence that the unconscious nature of his conduct excluded an “appreciation” of the consequences. 

II.  Judgments

A.  The Supreme Court of British Columbia

(1)  The Evidential Ruling in the Appellant’s Favour

15                               Brenner J. reasoned that the “defence” of automatism is only available where there is evidence of unconsciousness throughout the entire commission of a crime.  While recognizing that there was some evidence before the court to the effect that the appellant recalled stabbing his wife twice in the chest, Brenner J. ultimately held that an accused’s having some recollection of what has occurred does not preclude the availability of the defence.  That decided, he held, seemingly based on the entirety of the defence testimony, that there was evidence of unconsciousness throughout the commission of the offence and the accused had successfully laid a foundation for the plea of automatism.  The relevant portion of his ruling is as follows:

In this case, it is my view that there is evidence of unconsciousness throughout the commission of the crime.  The only evidence of recall is the recollection that came to the accused following a dream after he had gone to Mexico some days after the event.

That being the case, it seems to me that the defence has met the threshold test pursuant to which I must at least consider whether the defence of automatism of either the insane or non-insane variety should be left to the jury.  [Emphasis added.]

(2)  The Withdrawal of the Issue of Non-Insane Automatism from the Jury

16                               Brenner J. considered that, in the absence of evidence to the contrary, the cause of the automatism (if it existed) must have been “internal” to the appellant’s brain.  On this basis, he concluded that he was bound by R. v. MacLeod (1980), 52 C.C.C. (2d) 193, to withhold the defence of “non-insane automatism” from the jury.  In MacLeod the British Columbia Court of Appeal had applied the Rabey analysis to an accused who claimed to have “dissociated” owing to an accumulation of stresses in his family life and, while dissociated, to have sexually assaulted a five-year-old child who suffered from cerebral palsy.  The British Columbia Court of Appeal in MacLeod held that the accused was either insane or should be held criminally responsible for his actions notwithstanding the alleged automatism.

(3) The Jury Charge

17                               Brenner J. referred the jury to the specific pieces of evidence particularly relevant to consideration of the automatism defence.  In the course of this process, he highlighted the evidence of dissociation:

Dr. Janke, the forensic psychiatrist who testified for the defence, expressed the opinion that the accused was in a dissociative state when he killed his wife, and Dr. Murphy, the Crown forensic psychiatrist, expressed the opinion that the likelihood of the accused being in a dissociative state was very low. 

You will recall that Dr. Janke explained to you what dissociation was.  He explained the phenomenon as a situation where an individual’s thinking component and his judgment is separated from his body and his actions.  He explained to you it was typically associated with some loss of memory, and I took from his evidence that the degree of memory loss will often or frequently depend on how deep the dissociative state.

                                                                   . . .

He says, in his opinion, at the time the accused killed his wife, he did not have control over his actions, and a person in the accused’s state, in Dr. Janke’s opinion, would not appreciate the nature and quality of his act. [Emphasis added.]

18                               Brenner J. concluded his instruction on this point by explaining the series of questions the jury should address:

If you are satisfied on a balance of probabilities that the evidence establishes that the accused was suffering from a disease of the mind, you must then determine whether the disease of the mind rendered him either incapable of appreciating the nature and quality of the act he was doing or incapable of knowing that the act was wrong.      

We do not know, of course, on which aspects of these multi-faceted questions the accused failed to satisfy the jury.  We only know that at the conclusion of their deliberations the following exchange took place:

REGISTRAR: Members of the jury, have you reached a verdict?

MR. FOREMAN: We have, my lord.

THE COURT: Mr. Foreman, do you find the accused criminally responsible or not criminally responsible by reason of mental disorder?

THE FOREMAN: We find that the defendant is criminally responsible.

THE COURT: Proceed with the next question, Madam Registrar.

REGISTRAR: Do you find the accused guilty or not guilty of second degree murder.

THE FOREMAN: Not guilty.

THE COURT: Thank you, Mr. Foreman.

Based on that verdict, I will direct that a verdict of guilty of the offence of manslaughter be entered. . . .

The jury was not told that if they concluded that the accused was not suffering from a disease of the mind they could nevertheless decide that the appellant’s actions were not voluntary and that such a finding, if made, would necessitate an acquittal.  The jury was told, in effect, that notwithstanding the trial judge’s ruling that there was evidence of “unconsciousness throughout the commission of the crime”, the minimum verdict was manslaughter.       

(4)  Compelled Disclosure of the Expert Report to Crown

19                               At the conclusion of the defence opening address, the Crown asked that the trial judge order that the defence provide them with a copy of Dr. Janke’s report.   Defence counsel objected that he had no obligation to disclose the report until Dr. Janke was called to the witness stand.

20                               Brenner J. ordered that the report be produced stating that “the Crown ought to be in a position of being able to explore on cross-examination with the accused whatever statements Dr. Janke may or may not have relied upon in his report”.

B.  British Columbia Court of Appeal (1997), 86 B.C.A.C. 169

(1) The Automatism Issue

21                               McEachern C.J. began by noting at p. 173 that, when considering whether to put a possible defence to a jury, a trial judge must determine whether there is sufficient evidence to lend an “air of reality” to the defence.  He held that the trial judge had found that there was an “air of reality” to the appellant’s assertion of automatism, but that this conclusion related to the concept in general, and not to a specific form of automatism.

22                               Despite somewhat inconsistent evidence, both the trial court and the Court of Appeal held that there was evidence of dissociation throughout the length of the appellant’s attack on his wife.

23                               Referring to Rabey, supra, McEachern C.J. reasoned at p. 173 that the trial judge next had to determine if there was any evidence “from which the jury could reasonably conclude that the dissociated state was not caused by a disease of the mind” (emphasis added).  In the absence of such evidence, he held that a dissociated state could only result from a disease of the mind.

24                               McEachern C.J. noted by a process of elimination that the only potential explanation for Stone’s behaviour was the impact of his wife’s abuse.  He considered that such psychological blows are usually insufficient to cause “non-insane automatism”.  This led to the conclusion that the violent reaction to psychological trauma should be attributed primarily to the individual’s internal psychological or emotional weaknesses.  He held, at p. 175, that Brenner J. had properly applied the Rabey test in concluding that the cause of the appellant’s dissociative state, if such had occurred, was primarily related to his reaction to verbal abuse “which is more properly characterized as an internal as opposed to an external cause, and is, accordingly, a disease of the mind” (emphasis added).  As such, he held that the trial judge had properly refused to put “sane automatism” to the jury.

25                               McEachern C.J. noted that this Court’s decision in R. v. Parks, [1992] 2 S.C.R. 871 (the sleepwalker case), may justify using something other than an internal/external cause approach to identify a “disease of the mind”.  He referred specifically to a passage from the majority judgment of La Forest J. which said that the distinction drawn in Rabey between internal and external causes is meant only as an analytical tool, and not as an all-encompassing methodology. 

26                               Despite this, McEachern C.J. preferred the Rabey approach.  He thought, at p. 176, that the present case was one where, “but for some ill-defined, but readily understood internal component of a person’s psychological state, the ordinary processes of a conscious mind would normally prevent such a violent reaction to criticism and insults”.  Viewing the problem as one of an exceptional frailty of mind, McEachern C.J. held that the trial judge was correct not to charge the jury on “non-insane automatism”.

(2) Compelled Disclosure of the Expert Report to Crown

27                               McEachern C.J. recognized that, while the disclosure had permitted an orderly cross-examination of the appellant who was, inevitably, the only factual source for the psychiatric opinions, the trial judge should not have ordered the production of Dr. Janke’s report prior to his being called as a witness.  In this respect he relied upon a long line of cases, including R. v. Peruta (1992), 78 C.C.C. (3d) 350, sub nom. Brouillette c. R., [1992] R.J.Q. 2776 (C.A.), and Hodgkinson v. Simms (1988), 33 B.C.L.R. (2d) 129 (C.A.), which confirmed that an expert report obtained for the assistance of counsel is privileged unless and until the accused takes the stand.

28                               That said, McEachern C.J. preserved the conviction by relying on s. 686(1)(b)(iii) of the Criminal Code , R.S.C., 1985, c. C-46 .  He held that no miscarriage of justice occurred as a result of the premature disclosure.  Counsel for the accused had made a commitment in his opening address to the jury to call Dr. Janke.  Disclosure would have been required once Dr. Janke had begun to testify because any privilege attaching to it would have been waived by the defence putting him on the stand.  Absent timely disclosure, the Crown would have had the option of standing the accused down and resuming his cross-examination after Dr. Janke had testified and the report had been disclosed.  Accordingly, the end result would have been the same.

III.  Analysis

A.  The Automatism Issue

29                               This appeal raises questions about the allocation of issues between the judge and jury in the difficult area of automatism.  Part of the difficulty stems from the concern of some judges that juries may be too quick to accept the story of an accused  that he or she doesn’t remember what happened, or that the conduct was “uncontrollable”, or some other feigned version of events.  In R. v. Szymusiak, [1972] 3 O.R. 602 (C.A.), at p. 608, Schroeder J.A. observed that automatism is:

. . . a defence which in a true and proper case may be the only one open to an honest man, but it may just as readily be the last refuge of a scoundrel.  It is for these reasons that a Judge presiding at a trial has the responsibility cast upon him of separating the wheat from the chaff.

One might also cite to the same effect the scoffing tone of G. Williams in his Textbook of Criminal Law (2nd ed. 1983), at pp. 673-74:

. . . where a person who is fully awake flees from the police, or attacks another in jealousy or anger, a defence of dissociation is hard to credit, however many experts are called to give evidence in support of it.  How strange, the layman may say, and how very convenient for the defendant, that this alleged state of dissociation descended on him at the very moment when he had reason for evading the police, or when he was face to face with a person whom he had a strong motive for attacking.  The more down-to-earth explanation of the defendant’s “narrowing of the field of consciousness” is that it resulted merely from an overwhelming passion which led him to pay no attention to ordinary moral or prudential considerations; this is not inconsistent with the supposition that he was perfectly aware of what he was doing, psychiatric evidence to the contrary notwithstanding.

In giving heed to these wise words of scepticism, the courts must nevertheless respect the allocation by Parliament to the jury the tasks of assessing credibility and the making of findings of fact.  A concern that the jury may fall into error is no basis for taking away part of its jurisdiction.  The central feature of this appeal is the finding of the trial judge, accepted by the British Columbia Court of Appeal, that there was “evidence of unconsciousness throughout the commission of the crime”.  The appellant says he was entitled to have his case dealt with by the jury on that basis.

(1)  The Evidentiary Ruling

30                               The trial judge properly instructed himself with respect to the evidential onus.  He applied the test set out by Dickson J., as he then was, in Rabey, supra, at p. 552:

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.

Although given in dissent, Dickson J.’s statement of the evidential burden was subsequently adopted and applied by the majority of this Court in Parks, supra.

31                               The trial judge properly applied the test.  There is no suggestion that the appellant’s alleged state of unconsciousness, if it existed, came about through his own fault or negligence.  The appellant’s evidence that he was unconscious “throughout the commission of the crime” was supported by the expert medical opinion of Dr. Janke, who said it was a “necessary component” of doing his forensic assessment to determine whether the appellant was “fabricating”.  Dr. Janke went further than merely reporting what the appellant had said to him.  Dr. Janke’s professional opinion was that the appellant was not fabricating his story, that the allegation of unconsciousness was corroborated to some extent by the appellant’s psychological make-up, and that it would be very difficult (albeit not impossible) for the appellant to present a story of dissociation “in a sophisticated way that would fool an experienced forensic psychiatrist”.  Dr. Janke testified that the appellant suffered from no underlying pathological condition which pointed to a disease requiring detention and treatment.

32                               The evidence on unconsciousness was somewhat equivocal, in my review of it, but I did not have the advantage of seeing and hearing the appellant or Dr. Janke, and I am not in any position to impeach the conclusion of the trial judge that:

In this case, it is my view that there is evidence of unconsciousness throughout the commission of the crime.  The only evidence of recall is the recollection that came to the accused following a dream after he had gone to Mexico some days after the event. 

That being the case, it seems to me that the defence has met the threshold test. . . .   [Emphasis added.]

I agree with Bastarache J. in para. 192 of his reasons that it would be preferable to have additional corroborative evidence, such as bystanders to the event or a documented history of automatistic-like dissociative states.  However, the absence of such corroboration cannot relieve the court of the duty to consider the defence that is in fact presented, warts and all.  Under our system, once the evidential burden is met, the assessment of the credibility of the defence is up to the jury.

(2)  Proof of the Offence

33                               In Parks, supra, a majority of this Court observed that “voluntariness” can be seen as part of the actus reus requirement of criminal liability, per La Forest J., at p. 896:

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.  [Emphasis added.]

34                               The same point was made by Lamer C.J. and La Forest J. in R. v. Daviault, [1994] 3 S.C.R. 63.  See also McLachlin J. in R. v. Théroux, [1993] 2 S.C.R. 5 (cited by Cory J. in Daviault, at p. 74), who observed, at p. 17:

The term mens rea, properly understood, does not encompass all of the mental elements of a crime.  The actus reus has its own mental element; the act must be the voluntary act of the accused for the actus reus to exist. Mens rea, on the other hand, refers to the guilty mind, the wrongful intention, of the accused.  Its function in criminal law is to prevent the conviction of the morally innocent ^__ those who do not understand or intend the consequences of their acts.  Typically, mens rea is concerned with the consequences of the prohibited actus reus. [Emphasis added.]

35                               Cory J. in Daviault, at pp. 75 and 102, pointed out that automatism may also relate in some circumstances to mens rea.  See also R. v. Chaulk, [1990] 3 S.C.R. 1303.  For the purposes of this appeal, however, it is sufficient to note that a claim of automatism puts in issue the Crown’s ability to prove all of the elements of the offence beyond a reasonable doubt. 

(3)  Relieving the Crown of Part of its Persuasive Burden of Proof

36                               The Crown supports the ruling of the courts in British Columbia on a number of grounds:

(a)   the presumption of voluntariness;

(b)  the decision of this Court in Rabey, supra;

(c)   the contention that the mental disorder provisions of the Criminal Code  were appropriate to resolve the automatism issue on the facts of this case.

I will address each of these Crown arguments in turn.

(a) Ground 1:  The Presumption of Voluntariness

37                               The criminal law is premised on the responsibility of sane individuals for their voluntary acts or omissions.  We infer from common experience that the acts of an apparently conscious person are usually voluntary.  The issue here, however, is whether such an inference of voluntariness can be drawn after the trial judge has ruled that there is credible evidence that the accused was unconscious throughout the commission of the offence. 

38                               Everyday experience for most of us does not teach whether the acts of a person in a severely impaired state of consciousness, such as sleepwalking or an epileptic fit, are voluntary.  Dickson J., dissenting, stated in Rabey, supra, at p. 545, “Consciousness is a sine qua non to criminal liability”.

(i)  Relationship between Voluntariness and Consciousness

39                               The concepts of unconsciousness and involuntariness are linked in the definition of automatism proposed by the Ontario High Court of Justice in R. v. K. (1970), 3 C.C.C. (2d) 84, at p. 84, and adopted by a majority in this Court in Rabey, supra, at p. 518:

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.  [Emphasis added.]

The relationship between voluntariness and consciousness was also addressed by Mason C.J., Brennan and McHugh JJ. in R. v. Falconer (1990), 50 A. Crim. R. 244 (Aust. H.C.), at p. 250:

Although the prosecution bears the ultimate onus of proving beyond reasonable doubt that an act which is an element of an offence charged was a willed act or, at common law, was done voluntarily . . ., the prosecution may rely on the inference that an act done by an apparently conscious actor is willed or voluntary to discharge that onus unless there are grounds for believing that the accused was unable to control that act.   [Emphasis added.]

Just as the High Court was prepared to infer voluntariness from consciousness, evidence of lack of consciousness may support a claim of automatism (i.e., that there was a lack of voluntariness).  The question is, What is meant in this context by “lack of consciousness”?  In the present case, the Crown psychiatrist contended that in medical terms the appellant could not be considered unconscious:

A    I’m not sure what unconscious means in the legal sense, but --

Q    In the medical sense.

A    In the medical sense, he wasn’t unconscious.  Unconscious means flat out on the floor.  He clearly wasn’t, from all the information that we have, unconscious in that sense.

40                               From the legal perspective, “unconsciousness” is used in the sense that the accused, like the sleepwalker, is shown “not to have known what he was doing”.  (See Parks, supra, and R. v. Tolson (1889), 23 Q.B.D. 168, at p. 187.)  This excludes the person who is provoked and says, “I couldn’t help myself”, or who simply professes to be at a loss to explain uncharacteristic conduct:  see generally Lord Denning in Bratty, supra, at p. 409, who there defined automatism as:

. . . 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.  [Emphasis added.]

Voluntary action presupposes a measure of conscious control.  Dickson J. in Rabey allowed, at p. 522, that, “[a]t 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” (emphasis added).  In context, however, the reference to “semi-consciousness” was to a state of diminished awareness that negated control.  I think Crown counsel’s submissions in oral argument were consistent with this approach.  He submitted that automatism describes “involuntary behaviour that occurs without the minimum mental element necessary to will the act”, and “[i]t is the state of a person who, though capable of action, is incapable of knowing that the act is taking place” (emphasis added).  His definitions encompassed the notions of awareness and control.  I agree with the Crown’s submissions in this regard.  Dr. Janke, the defence psychiatrist, used “consciousness” in the sense of awareness or control, as is clear from the following extracts from his evidence:

[A person] can, as in Mr. Stone’s case, have a fragment of memory and, fragmentary memory even before the attack, the actual attack on Donna Stone, and not be in a, not have any control over what they are actually doing. 

                                                                   . . .

Based on Mr. Stone’s descriptions of the events and my understanding of the circumstances from the other materials, it would be my opinion that he did not have control over his actions.  [Emphasis added.]

At the same time, the evidence that the appellant recalled some weeks after the killing “stabbing twice and, and then having the whooshing experience” raised an important problem for the trial judge.  If it were contended that the appellant suffered a “black-out” of consciousness, and was incapable of exercising any conscious control over his actions, voluntariness would be put in issue.  The appellant would have identified an explanation for his lack of control, namely that he was unconscious at the time.  If, however, the appellant was conscious, even for only the initial stab wounds, he would be confronted with the presumption of voluntariness for that period of time.  The trial judge dealt with this issue as follows:

During the submissions by counsel, I indicated that my review of the authorities suggested that the defence of automatism was only available in the event that there is evidence of unconsciousness throughout the entire commission of a crime.  That is the language used by Chief Justice Dickson.  In this case, there is some evidence that the accused was aware and was not unconscious throughout the commission of the crime.  He was able to testify before the court that he recalled stabbing his wife twice in the chest.  The question at issue at this stage is whether that evidence takes this case out of the realm of automatism as a matter of law.

                                                                   . . .

On my reading of the authorities, I conclude that the authorities do not exclude the possibility of the defence of automatism being available because an accused is able to have some recollection of what occurred.

In this case, it is my view that there is evidence of unconsciousness throughout the commission of the crime.  The only evidence of recall is the recollection that came to the accused following a dream after he had gone to Mexico some days after the event.

That being the case, it seems to me that the defence has met the threshold test. . . .

The trial judge thus found, at the conclusion of a careful analysis, that a properly instructed jury, acting reasonably, could find that the appellant was unconscious “throughout the commission of the crime”.  He found the evidence was capable (if believed) of satisfying the definition of automatism given by Dickson J. in Rabey.  In these circumstances, “the defence of automatism should be available” (Rabey, supra, per Dickson J., at p. 552).  This initial ruling was not disturbed by the British Columbia Court of Appeal.  This Court is thus confronted with concurrent findings on this crucial point.  The remaining issue is whether there was any legal justification for depriving the appellant of the benefit of that evidentiary ruling, and taking the issue of automatism away from the jury.

(ii)  Provocation and Automatism

41                               The appellant relied on both automatism and provocation.  It is important to differentiate these concepts.  Automatism is not a medically repackaged and enhanced variant of the provocation defence, although provocation is sometimes put forward as a fallback position in the event automatism is rejected.  As stated, a plea of automatism puts in issue the Crown’s ability to prove its case.  Provocation, under s. 232 of the Code, operates to reduce to manslaughter an established case of “[c]ulpable homicide that otherwise would be murder”.  The two concepts are quite distinct and their application depends on the nature of the impact on an accused of the triggering event.

42                               In Parnerkar v. The Queen, [1974] S.C.R. 449, the accused, who was born in India, killed the woman he wanted to marry by stabbing her with a knife.  The accused had travelled from Toronto to Regina to see the victim, a divorced mother of Hungarian origin, with whom he had had an on-again off-again romantic attachment for about seven years.  From the victim’s point of view, the romance had cooled.  She wanted the accused out of her house and out of her life.  Her son testified (at p. 459) that prior to the stabbing his mother had said, “I will not marry you because you are black”, although the accused denied hearing this remark.  Two or three of the victim’s letters were produced by the accused to the victim’s children.  The victim tore up an envelope, symbolically ending the relationship.  Events exploded.  The victim was stabbed.  This Court, in a divided decision, held that the defence of insane automatism had properly been left with the jury (which rejected it) and that the precipitating conduct did not amount to provocation because it did not constitute a “wrongful act or insult” within the meaning of the Code (p. 473).  The Court did not allow the jury to consider the plea of non-insane automatism.  Parnerkar was a precursor to Rabey in this respect.

43                               There would clearly be a concern about the prospect of conduct insufficient to ground provocation nevertheless being permitted to support non-insane automatism (or, to use the current term, non-mental disorder automatism), which, of course, may lead to an outright acquittal rather than a reduction from murder to manslaughter.  The key distinction between the two concepts is that automatism relates to a lack of voluntariness in the accused, an essential element of the offence, while provocation is a recognition that an accused who “voluntarily” committed all the elements of murder may nevertheless have been provoked by a wrongful act or insult that would have been sufficient, on an objective basis, to deprive an ordinary person of the power of self-control.  Thus, a constitutional challenge to the “objective” elements of the provocation defence failed, correctly in my view, in R. v. Cameron (1992), 71 C.C.C. (3d) 272 (Ont. C.A.), on the grounds that provocation did not arise for consideration until after the Crown had successfully established all of the “subjective” elements of unlawful homicide beyond a reasonable doubt.  The provocation defence did not relieve the Crown of any element of its proof.  Provocation simply operates, where applicable, to reduce murder to manslaughter.  Thus, while evidence relating to the events preceding the commission of an offence may raise questions about both automatism and provocation, very different proof of facts must be made before either one of these issues can be left with the jury.

(iii)  Onus of Proof

44                               My colleague Bastarache J. proposes, at para. 179, that the Court take this opportunity to add to the evidential burden on the accused a second and more onerous obstacle, namely the persuasive or legal burden on the accused to establish automatism on a balance of probabilities.  The onus issue does not truly arise on the facts of the appeal.  The issue of non-mental disorder automatism was not put to the jury at all, and it is superfluous to consider what ought to have been said about onus had the trial judge done what he didn’t do and, as the appeal is to be dismissed, he will never have to do in this case.

45                               More importantly, piling the persuasive burden on top of the evidential burden represents a change in the law as settled by this Court in Parks, supra, only seven years ago.  In his majority judgment in Parks, La Forest J. reproduced with approval, at p. 897, a portion of Dickson J.’s earlier dissent in Rabey.  In that passage, Dickson J. was careful to emphasize that imposition of an evidential burden as a matter of policy to filter out frivolous claims did not in any way indicate that an accused carried any part of the persuasive or legal burden, whether on a balance of probabilities or otherwise.  See Rabey, at p. 545:

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.... [Emphasis added.]

La Forest J. in Parks, supra, added the following explanation at p. 897:    

. . . [the judge] must determine whether there is some evidence on the record to support leaving the defence with the jury.  This is sometimes referred to as laying the proper foundation for the defence; see Bratty, supra, at pp. 405 and 413.  Thus an evidential burden rests with the accused, and the mere assertion of the defence will not suffice; see Bratty, at p. 414.  [Emphasis added.]

46                               The concept of an evidential burden is “a product of the jury system”, per J. Sopinka, S. Lederman and A. Bryant, The Law of Evidence in Canada (1992), at p. 61.  The authors contrast the evidential burden with the legal or persuasive burden as follows, at p. 58:

The significance of the evidential burden arises when there is a question as to which party has the right or the obligation to begin adducing evidence.  It also arises when there is a question as to whether sufficient evidence has been adduced to raise an issue for determination by the trier of fact.  The legal burden of proof normally arises after the evidence has been completed and the question is whether the trier of fact has been persuaded with respect to the issue or case to the civil or criminal standard of proof.  The legal burden, however, ordinarily arises after a party has first satisfied an evidential burden in relation to that fact or issue.

It is no part of an “evidential burden” to require an accused to go on to satisfy the jury on a balance of probabilities or otherwise about the facts in issue -- per Dickson C.J. in R. v. Schwartz, [1988] 2 S.C.R. 443, at p. 467:

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.

47                               In neither Rabey nor Parks was it suggested, much less decided, that the accused should shoulder any part of the persuasive or legal burden of proof.  On the contrary, the evidential burden was put forward in both cases as a safeguard against putting the Crown too quickly or too lightly to the task of discharging the persuasive or legal burden of proof.

48                               This allocation of responsibilities is not without its critics.  The Minister of Justice, in her 1993 Proposals to amend the Criminal Code (general principles), suggested that the burden of proof in all cases of automatism be on a balance of probabilities by the party that raised the issue.  Parliament has not seen fit to act on this recommendation.  I do not believe, with respect, that the Court ought to take it upon itself to reverse the persuasive burden to the disadvantage of the accused simply because the Court may find an unenacted policy initiative more attractive than the established law.  Parliament made a choice to impose a persuasive burden on a balance of probabilities in the case of mental disorder which includes mental disorder automatism.  It did not do so in the case of non-mental disorder automatism.  Any such imposition would require a justification under s. 1  of the Charter .  On this appeal, however, neither the respondent nor any of the Attorneys General who intervened in the appeal (Canada, Ontario and Alberta) suggested that such a change of onus was either desirable or necessary.

49                               In my view, the decisions of this Court in Chaulk, supra, and Daviault, supra, do not warrant a reversal of the persuasive burden.  Such a reversal would create a potential for injustice where a jury is obliged to convict an accused who properly raised the issue of automatism even though the jury entertains a reasonable doubt about the voluntariness of the accused’s conduct.  In Chaulk the Court dealt with a statutory reverse onus in the context of insanity.  Section 16(4) of the Code provided at the time that “[e]very one shall, until the contrary is proved, be presumed to be and to have been sane”.  The Court agreed that placing a burden of proof on the accused to persuade the jury of insanity on a balance of probabilities infringed the presumption of innocence guaranteed by s. 11( d )  of the Charter , per Lamer C.J., at pp. 1330-31:

Section 16(4) allows a factor which is essential for guilt to be presumed, rather than proven by the Crown beyond a reasonable doubt.  Moreover, it requires an accused to disprove sanity (or prove insanity) on a balance of probabilities; it therefore violates the presumption of innocence because it permits a conviction in spite of a reasonable doubt in the mind of the trier of fact as to the guilt of the accused.  [Emphasis in original.]

A majority of the Court saved the reverse onus under s. 1 based on evidence and submissions (p. 1337) of the “impossibly onerous burden of disproving insanity”.  There has been no equivalent showing under s. 1 in this case.

50                               In Daviault, on the other hand, a majority of the Court recognized an exception to the existing common law rule established in Leary v. The Queen, [1978] 1 S.C.R. 29, that the mens rea of a general intent offence could not be negated by evidence of even extreme drunkenness.  The Court was concerned that the common law rule violated the Charter .  As Cory  J. stated in Daviault, at p. 73:

In my opinion, the principles embodied in our Canadian Charter of Rights and Freedoms , and more specifically in ss. 7 and 11(d), mandate a limited exception to, or some flexibility in, the application of the Leary rule.  [Emphasis added.]

The price of the “limited exception to” the Leary rule was that the accused, who experienced the steps by which he got himself drunk, was required to show, on a balance of probability, that the drunkenness induced an absence of awareness that was akin to a state of insanity or automatism.  At p. 101, Cory J. explained:

This Court has recognized, in R. v. Chaulk . . ., that although it constituted a violation of the accused’s rights under s. 11( d )  of the Charter , such a burden could be justified under s. 1.  In this case, I feel that the burden can be justified.  Drunkenness of the extreme degree required in order for it to become relevant will only occur on rare occasions.  It is only the accused who can give evidence as to the amount of alcohol consumed and its effect upon him.

The Court thus concluded that a s. 1 justification had been established.  Drunkenness is a matter of degree.  It is a reasonably common phenomenon in its lesser manifestations.  In its extreme form it may produce a potential defence akin to automatism to which special rules apply.  Daviault did not suggest a reversal of the persuasive burden whenever the state of mind of an accused is successfully put in issue, in provocation for example (s. 232, Linney v. The Queen, [1978] 1 S.C.R. 646, R. v. Thibert, [1996] 1 S.C.R. 37), or self-defence (s. 34, R. v. Lavallee, [1990] 1 S.C.R. 852, R. v. Malott, [1998] 1 S.C.R. 123), or an accused’s belief as to consent to an assault (s. 265(4),  Latour v. The King, [1951] S.C.R. 19, R. v. Osolin, [1993] 4 S.C.R. 595, at pp. 682-83); in all such cases (and many others) the Crown carries the persuasive burden to negate a state of mind asserted by the accused, despite the fact that an accused is often in a better position than the Crown to shed light on his or her state of mind at the time of the alleged crime.  The accused may be in a better position to shed light on most elements of the offence.  The Crown did not ask for a reverse onus where non-insane automatism is in issue and therefore did not put forward a case for the application of s. 1.  I do not believe the Court ought to embark on organizing its own s. 1 justification where none of the Attorneys General saw fit even to propose the shift of the persuasive onus much less to try to justify it.

51                               Courts in most other jurisdictions, including the United Kingdom, the United States, Australia and New Zealand, impose only an evidential burden on an accused.  The persuasive or legal burden remains on the Crown -- the United Kingdom: see Bratty, supra, per Viscount Kilmuir L.C., at p. 406, per Lord Denning, at p. 413, and per Lord Morris of Borth-y-Gest, at p. 416, and see Halsbury’s Laws of England (4th ed. 1990), vol. 11(1), at para. 6; the United States:  see State v. Hinkle, 489 S.E.2d 257 (W. Va. 1996), and see W. LaFave and A. Scott, Substantive Criminal Law (1986), vol. 1, at p. 545:

Some authority is to be found to the effect that the defendant has the burden of proving the defense of automatism.  The prevailing view, however, is that the defendant need only produce evidence raising a doubt as to his consciousness at the time of the alleged crime.  If the defense really is concerned with whether the defendant engaged in a voluntary act, an essential element of the crime, then it would seem that the burden of proof must as a constitutional matter be on the prosecution.

See also Australia:  Falconer, supra, at p. 250, and Hawkins v. The Queen (1994), 72 A. Crim. R. 288 (H.C.), at pp. 292-93; and New Zealand:  R. v. Cottle, [1958] N.Z.L.R. 999, at pp. 1007-8, and Police v. Bannin, [1991] 2 N.Z.L.R. 237 (H.C.), at p. 242.

52                               This weight of criminal practice in comparable jurisdictions would make it awkward for an attorney general to argue that a reverse onus in this case is demonstrably justified “in a free and democratic society” within the meaning of s. 1  of the Charter , but, as stated, none of the Attorneys General who appeared before us even attempted to make this argument.

53                               I am not persuaded, in any event, that the onus of proof would be decisive on the facts of this case.  There were only two witnesses supporting automatism, the accused and his medical expert.  If they were disbelieved, the Crown would have had no difficulty discharging its persuasive onus.  If they were believed, on the other hand, switching the persuasive onus to the defence would not have saved the prosecution from defeat.

(b)  Ground 2:  The Decision of this Court in Rabey, supra

54                               The Crown’s second principal submission is that even if it were to be found that the conduct of the appellant was involuntary, a majority of this Court in Rabey, supra, held that automatism which cannot be attributed to any external cause, such as a blow on the head, should be characterized as a disease of the mind.  The Crown says that an “ordinary person” could be assumed to have the capacity to shoulder such a “psychological blow” as was here inflicted on the appellant by his wife  without dissociating.  The cause of the appellant’s “dissociation”, if such it was, should therefore be attributed to a disease of the mind.  The Rabey classification scheme, it was acknowledged, is not borrowed from medical science, but the Crown says it can be justified on the notion that “disease of the mind” is a legal not a medical concept.  The result, says the Crown, is that, as the jury refused to accept the NCRMD plea, it was properly required to convict the accused without considering evidence (which the court has found to be reasonably capable of belief) that the conduct was involuntary.

55                               While I have been using, to this point, the traditional terms “insane” and “non-insane” automatism, it is more convenient from this point onwards to refer to “mental disorder” automatism and “non-mental disorder” automatism.  This is because the amendments to s. 16 of the Code made in 1991 (S.C. 1991, c. 43) removed all references to the term “insanity” from the Code and the common law terms should be correspondingly updated to minimize confusion.

56                               It is important to make careful note of the facts in Rabey, supra.  The accused was an “emotionally immature” male student at the University of Toronto, who had become smitten by an attractive outgoing female student. She did not reciprocate his affections.  In fact, she wrote a rather contemptuous and demeaning note about him to a friend.  The note was never intended for the eyes of the accused, but it fell into his possession and he was devastated by what he read.  The accused and the woman subsequently found themselves alone in a university building, at which point the accused, suffering what he said was a “psychological blackout”, brutally beat the woman whom he said he loved more than anyone else he had ever met.  Expert evidence called by the defence at trial supported the theory of a “blackout” induced by a psychological blow without any accompanying “disease of the mind”.  The trial judge put the issue of non-mental disorder automatism to the jury, who acquitted.  The Ontario Court of Appeal reversed that decision ((1977), 17 O.R. (2d) 1).  Martin J.A. comprehensively reviewed the precedents and concluded, at p. 22, that the student had merely suffered one of “the ordinary stresses and disappointments of life which are the common lot of mankind” and was not entitled to the benefit of non-mental disorder automatism.  Martin J.A. considered that the so-called “blow” would not have caused an ordinary person to black out.  If it blacked out the accused, he must have been suffering from some mental frailty which the law would regard as a disease of the mind.  In the absence of a disease of the mind, Martin J.A. seemed to feel, the evidence of a “blackout” from such a minor rebuff was simply not credible.  Martin J.A. was clearly perturbed that the jury had acquitted on such evidence.  The Court of Appeal set aside the acquittal and ordered a new trial at which the accused would be allowed to run only an insanity defence.  The decision and the reasoning of Martin J.A. were adopted by a majority of this Court.

57                               Critical to the analysis of Martin J.A. was the concept that a “psychological blackout” could be attributed to one of three sources:  (1) an external cause such as a blow to the head in which case an accused would be entitled to raise non-mental disorder automatism, (2) an internal cause that would be likely to produce a similar psychological impact on a person of everyday sensibilities and psychological make-up, such as a person’s witnessing the killing of his or her own children, which could qualify as an “external” cause and which might (the point was left open) entitle an accused to plead non-mental disorder automatism, or (3) an internal cause which was triggered by no more than “the ordinary stresses and disappointments of life”.  In the absence of any other credible explanation, the cause of the automatism in the third scenario would be deemed to be a “disease of the mind”.  It was held in Rabey that the accused fell into this third scenario since Martin J.A. concluded that an ordinary person would not have become dissociated in such a situation.  Therefore, under the three-part model, the only automatism defence open to Rabey was mental disorder automatism.  A relevant consideration was the sense that “[e]xternal influences on the accused are perceived as less likely than internal ones to present a danger in the future” (I. Grant, D. Chunn and C. Boyle, The Law of Homicide (loose-leaf), at p. 6-118).

58                               Martin J.A. was clearly unimpressed with the idea that a university student’s unrequited love could sustain the theory of a psychological blow causing dissociation leading to a violent assault.  Rabey, he thought, was either suffering from a disease of the mind or his description of events was to be disbelieved.

(i)  The Concept of Disease of the Mind

59                               The Rabey analysis puts the concept of “disease of the mind” at the centre of the automatism analysis.  By expanding the definition of “disease of the mind”, the courts have expanded the role of NCRMD, and contracted the area of human conduct that potentially leads to an outright acquittal on the basis of the Crown’s failure to prove the actus reus of the offence.  Given this crucial control function, it is not surprising that the courts have insisted that the definition of “disease of the mind” must be a matter of law, and is not to be dictated by medical experts.

60                               Medical input, of course, is nevertheless an essential component.  As La Forest J. stated in Parks, supra, at p. 898, quoting Martin J.A. in Rabey, supra, at p. 12:

“Disease of the mind” is a legal term, not a medical term of art; although a legal concept, it contains a substantial medical component as well as a legal or policy component.

Martin J.A. described the “policy function” in Rabey, at p. 12, as relating to:

. . . (a) the scope of the exemption from criminal responsibility to be afforded by mental disorder or disturbance, and (b) the protection of the public by the control and treatment of persons who have caused serious harms while in a mentally disordered or disturbed state.

Having regard to the policy component, Martin J.A., at p. 14 went on to demonstrate that the legal concept of “disease” of the mind includes disorders which have no organic or physical cause, and includes “purely functional disorders which, so far as is known, have no physical cause”, and may be “permanent or temporary, curable or incurable . . . [or] recurring or non-recurring”.  In this case the medical experts differed over whether the appellant had conscious control over his actions at the time of the killing, but they were unanimous that the appellant did not suffer from any condition that medicine would recognize as a “disease of the mind”.

(ii)  This Court’s Subsequent Decision in Parks

61                               This Court’s decision in Rabey must now be read in light of the subsequent attempt to apply its analytical framework to the case of a sleepwalker in Parks.  La Forest J. in Parks appeared to accept many of the policy considerations that preoccupied the Court in Rabey while rejecting any mechanical application of the Rabey criteria for classifying cases into what we would now call mental disorder automatism or non-mental disorder automatism.

62                               In Parks, the accused, in a state of somnambulism, killed his mother-in-law and severely assaulted his father-in-law.  The jury accepted the expert evidence that the conduct of the accused, while asleep, was involuntary.  The Crown appealed the acquittal to the Ontario Court of Appeal, which affirmed the verdict, and again to this Court, which unanimously dismissed the appeal. 

63                               The Crown took the position in Parks, based on its analysis of Rabey, that  somnambulism is an “internal” cause of automatism, and the accused sleepwalker would therefore have to prove on a balance of probabilities that he was NCRMD.  In the course of rejecting this submission, La Forest J. in Parks identified two policy-driven considerations, namely the “continuing danger” and “internal cause” theories, at p. 901:

The continuing danger theory holds that any condition likely to present a recurring danger to the public should be treated as insanity.  The internal cause theory suggests that a condition stemming from the psychological or emotional make-up of the accused, rather than some external factor, should lead to a finding of insanity.  The two theories share a common concern for recurrence, the latter holding that an internal weakness is more likely to lead to recurrent violence than automatism brought on by some intervening external cause.

64                               Sleepwalking did not fit the Rabey analysis.  While possibly associated with certain external stimuli, sleepwalking springs from the workings of the internal recesses of the brain, and would therefore have to be classified by proponents of the internal cause theory as a “disease of the brain”.  However, few people would equate sleepwalking with insanity.  Martin J.A. sought to qualify his analysis by identifying sleepwalking as a “separate category” (at p. 17), but in Parks, La Forest J. saw sleepwalking as undermining the utility of the internal cause theory itself, which he therefore downgraded to an “analytical tool” (at p. 902).

65                               I believe the Court was correct in Parks to dissociate itself from a mechanical application of the Rabey analysis.  In the first place, an overly rigid application of the “internal cause” theory produces anomalous distinctions.  In R. v. Quick, [1973] 3 All E.R. 347 (C.A.), the accused had assaulted his victim under the influence of an insulin injection, and Lawton L.J. utilized the notion of external cause (i.e., the injection) to negate the existence of a disease of the mind.  On the other hand, in R. v. Hennessy (1989), 89 Cr. App. R. 10 (C.A.) it was held that the involuntary conduct of a diabetic who failed to take his insulin was internally caused (by his diabetes) and must thus be considered an expression of insanity.  The differing treatment of diabetes, based on factors which have nothing to do with the underlying nature of the condition, demonstrates the potential artificiality of the analysis, and thus its limitations. 

66                               In the second place, the elastic notion of “mental disorder” can be expanded to the point where it ceases to have any utility for classification.  The elasticity of use is not confined to the legal profession.  E. Tollefson and B. Starkman note in their Mental Disorder in Criminal Proceedings (1993), at p. 53, the view of the Canadian Psychiatric Association that all causes of automatism are mental disorders, as they see the world. From a legal perspective, however, classification of a problem as a “mental disorder” has to be given some substantive content, or s. 16 and Part XX.1 of the Code (and its tests descended from the M‘Naghten Rules (M‘Naghten’s Case (1843), 10 Cl. & Fin. 200, 8 E.R. 718)) may be imposed inappropriately.  As pointed out by Williams, supra, at p. 676:

The courts should eschew any effort to discourage the defence of dissociation by interpreting it as evidence of insanity, or by withholding psychiatric evidence from the jury.  The defence, if supported by medical evidence, should be adjudicated upon by the triers of fact, and if successful should result in an ordinary acquittal.  But what is urgently needed is that the psychiatrist who deposes to dissociation in improbable circumstances should be subjected to skilled and deeply sceptical cross-examination, and that the Crown should, where possible, call counter-evidence.

Williams’ concern about proper evidence is met, I think, by Dickson J.’s description of the evidential burden in Rabey.

67                               Thirdly, the jurisprudential root of the “internal cause” theory is suspect.  Rabey traced the doctrine to Quick, but as was also pointed out by Williams, supra, at p. 675:

To say that the presence of an external cause of mental trouble saves a man from the imputation of madness, as was held in Quick, does not imply that the absence of an external cause necessarily means that he is mad. 

68                               Fourthly, Rabey contemplated that some psychological blows could be classified as internal causes and others as external causes.  Thus Ritchie J. adopted in Rabey, at p. 520, the following observation of Martin J.A. in the Ontario Court of Appeal at p. 22:

. . . 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. 

Nevertheless, a psychological blow sufficient to unhinge the ordinary person could potentially open up a plea of non-mental disorder automatism, per Martin J.A. at p. 22, cited by Ritchie J., at p. 520:

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 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. [Emphasis added.]

The introduction of an “average normal person” test would potentially inject an objective fault standard into the Crown’s burden of proof of the actus reus and mens rea, and thereby create Charter  problems:  see R. v. Martineau, [1990] 2 S.C.R. 633, and Cameron, supra, at pp. 273-74, per Doherty J.A.  More pertinent, for present purposes, is the point made in the dissent of Dickson J., in Rabey, at p. 548:

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. . . .

In short, the conceptual problems associated with the “internal cause” theory amply justify downgrading its status to an “analytical tool” (Parks, p. 902).  A judicially created construct such as the “internal cause theory” does not justify taking away from the jury any case of “lack of consciousness throughout the commission of the offence” just because the accused is unable to identify a specific “external cause”.  Such an accused, who has met the evidential burden of showing that his or her conduct was unconscious and involuntary should not always be absorbed into what would in his or her case be an artificial debate developed in the context of conscious conduct about whether the accused lacked the capacity to appreciate “the nature and quality of the act or omission or of knowing that it was wrong”.

69                               The other philosophical root of the Parks analysis is the “continuing danger” theory.  The law on automatism is correctly concerned with public safety, and one problem is how to assess the likelihood of recurrence of the violent conduct.  As mentioned by Devlin J. in Hill v. Baxter, [1958] 1 Q.B. 277, at pp. 285-86:

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 [Criminal Lunatics Act, 1800], the law has provided that persons acquitted on this ground should be subject to restraint. [Emphasis added.]

70                               The danger of recurrence was also cited by Lord Denning in Bratty, supra, at p. 410:

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 that 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.  [Emphasis added.]

71                               Dickson J., in Rabey, also sought to relate the public policy concern about insanity to the “continuing danger theory”.  While neither the M‘Naghten Rules nor s. 16 of the Code say anything explicitly about the danger of recurrence, the fact is that an isolated act of violent behaviour, however serious, presents different public policy issues than does conduct rooted in imbecility or other organic disease of the mind which has struck once and may prompt a further act of violence in future.  The risk of recurrence is thus legitimately part of the “policy component” of the legal analysis of “disease of the mind”. 

72                               La Forest J. in Parks cited with approval, at pp. 906-7, the English Court of Appeal (Criminal Division) in R. v. Burgess, [1991] 2 All E.R. 769, at p. 774:

It seems to us that if there is a danger of recurrence that may be an added reason for categorising the condition as a disease of the mind.  On the other hand, the absence of the danger of recurrence is not a reason for saying that it cannot be a disease of the mind.

Thus La Forest J. concluded, at p. 905, that the “continuing danger” theory is simply “a factor at the policy stage of the inquiry”.  In the present case, neither psychiatrist considered recurrence a significant possibility.   

73                               In the circumstances, I do not think that the majority decision in Rabey justified the courts in British Columbia in depriving the appellant of the benefit of the evidentiary ruling in his favour on the issue of involuntariness.  Where, as here, the trial judge concludes that there was evidence reasonably capable of belief that the accused was in fact unconscious throughout the commission of the offence, it is not fatal if the accused fails to go on to establish a cause of that state of alleged unconsciousness which the courts can describe as “external”.  As it is rare for an accused to meet even an evidential burden in this sort of case, it is not realistic to talk of a “floodgates” problem.  The defence psychiatrist, trained to spot feigned symptoms, says that in his opinion the testimony of the appellant is credible, and finds the symptoms described by the appellant to be credibly related to the alleged unconsciousness.  An inability to identify the mechanism of the brain that allegedly rendered him unconscious, except in the very general terms offered by Dr. Janke, may of course undermine the credibility of his story that he lost consciousness in the first place.  However, the task of the appellant was to demonstrate the fact of unconsciousness (in the sense of lack of awareness and control).  It was not incumbent upon him to satisfy the court as to the cause of his condition or lose the benefit of the evidentiary ruling.  In effect, Rabey takes the involuntariness defence which the accused seeks to raise and substitutes for it an insanity defence which neither the accused nor the medical experts can plausibly support.  At this point, it is worth reminding ourselves what Cory J. said in Daviault, at p. 91:

In my view, the mental element of voluntariness is a fundamental aspect of the crime which cannot be taken away by a judicially developed policy.

74                               It follows, I think, that once the trial judge exercised his gatekeeper function to screen frivolous or feigned claims, it was for the jury to make up its mind on the credibility of the plea of automatism.  This jurisdiction should not be removed by “judicially developed policy”.  It is to be expected that the jury will subject the evidence of involuntariness to appropriate scrutiny.  There was discussion in Rabey about the need to maintain the credibility of the justice system.  In my view, the jury is as well placed as anyone in the justice system to uphold its credibility.  The bottom line is, after all, that the task of weighing the credibility of such defences was confined by Parliament to the jury.  The Court should respect the allocation of that responsibility.

(c)   Ground 3:  The Contention that the Mental Disorder Provisions of the Criminal Code Were Appropriate to Resolve the Automatism Issue on the Facts of This Case

75                               The third major submission on behalf of the Crown was that quite apart from this Court’s decision in Rabey the present case was correctly subjected to the NCRMD provisions of s. 16 of the Code.  The Crown says that here the operating cause of the dissociation was a “disease of the mind”, giving that concept its full legal scope, and in such situations questions of involuntariness are properly subsumed into the NCRMD analysis.  This is despite the fact that in this case all the experts were agreed that the appellant did not suffer from any “disease of the mind” known to medicine.  I accept, as stated, that “disease of the mind” is a legal concept, but nevertheless a significant disconnection between law and medicine on this point will often impose a measure of artificiality to create the medical equivalent of trying to pound square pegs into round holes.

76                               The issue here is not whether the law, as a matter of policy, can expand its concept of  “disease of the mind” to include conduct that has traditionally been considered non-insane automatism.  It can do so.  The question here is quite different.  We are asked to say that even if the plea of NCRMD fails, the Court will still, by an act of judicial policy, relieve the Crown of the burden of proving the most contentious element of the actus reus by taking the issue of voluntariness away from the jury.

77                               It is true that if statements relating voluntariness to the actus reus are applied mechanically, even a violent accused suffering from a disease of the mind in which “the mind does not go with what is being done” (Rabey (S.C.C.), supra, at p. 518, quoting R. v. K., supra, at p. 84) could demand an absolute acquittal.  This was the position at  common law, per Devlin J. in R. v. Kemp, [1956] 3 All E.R. 249, at p. 251:

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.

In response to the public danger posed by such an outcome, and to a developing understanding of mental disorder, the courts started down the path that eventually subsumed the notion of involuntary conduct into the concept of insanity where the involuntary conduct could be identified as the product of a disease of the mind.  A successful plea of insanity led to the verdict of “not guilty by reason of insanity”, which carried with it the possibility of indefinite detention at the pleasure of the state.   

78                               The problem is that while s. 16 of the Code may provide an appropriate structure to resolve cases of medically defined “diseases of the mind”, it may not be responsive to the real issues in cases where the “disease of the mind” derives from legal classification, rather than medical classification.  The view of the Canadian Psychiatric Association that all causes of automatism are mental disorders was not accompanied by any ringing endorsement that in all such cases s. 16 of the Code provides an appropriate analytical framework.  The focus of the NCRMD provisions of the Code is clearly different from the focus of automatism.  The latter addresses whether the conduct was voluntary.  The former looks at one possible cause of automatism, and asks questions about the impact of the disease of the mind on legally relevant aspects of mental capacity.

79                               The existence of a “disease of the mind” is a threshold issue in s. 16.  The real question, to paraphrase Lord Diplock in R. v. Sullivan, [1984] A.C. 156 (H.L.), at p. 172, is whether “the effect of a disease is to impair these [mental] faculties so severely as to have either of the consequences referred to” in s. 16(1), namely whether the disease rendered the accused “incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong”.

80                               It is clear, in other words, that “the consequences referred to” in s. 16 are directed to issues other than voluntariness.  There is much to be said for the observation of Professor D. Stuart in Canadian Criminal Law: A Treatise (3rd ed. 1995), at p. 108:

A “disease of the mind” is only one requirement of the legal defence of insanity.  If that defence fails for any reason, surely justice dictates that the jury may consider sane automatism.  MacLeod [R. v. MacLeod (1980), 52 C.C.C. (2d) 193 (B.C.C.A.)] decides that psychiatric labelling might well prevent the defence of sane automatism from being put although it is not the sole barometer of legal insanity.  [Emphasis in original.]

81                               Two further points emerge from a consideration of s. 16 of the Code.  Firstly, Parliament has not alluded to whether the conduct is voluntary or involuntary.  It is sufficient that the acts occurred or omissions were made at a time when the accused suffered from “a  mental disorder” (defined in s. 2 as a “disease of the mind”).  Secondly, Parliament addressed the capacity of the accused, not proof of the existence or absence of a particular mens rea on the particular facts.  The finding of a mental disorder therefore displaces the ordinary rules governing criminal responsibility, including voluntariness, and places an accused in the grip of the statutory scheme created to deal with the individuals whom the law used to describe as “criminally insane”.

82                               The difficulty of subsuming the issue of voluntariness into the different issue of mental disorder in cases such as the present was noted 40 years ago by Gresson P. of the New Zealand Court of Appeal in Cottle, supra, at p. 1009.  In a decision much commented upon by members of the House of Lords in Bratty, supra, Gresson P., at p. 1009, expressed his concern about the M‘Naghten Rules being applied to an accused who simply lacked volition:

We must accept the position as it is, but we cannot escape the difficulty that the M’Naghten Rules were never intended to apply to a case where the act was done without volition or consciousness of doing it. The M’Naghten formula takes account only of the cognitive faculties and presupposes that the doer was conscious of his actions. Nevertheless, it has become the practice to regard a person as “incapable of understanding the nature and quality” of his act when in truth he was not conscious of having acted at all; and to treat the formula as applicable to cases of automatism. . . .  It is unfortunate that there should have been this too liberal application of the M’Naghten Rules. [Emphasis added.]

83                               The s. 16 question has an air of artificiality in the case of someone who claims to have been unconscious at the material time.  If true, he or she not only failed to appreciate “the nature and quality of the act” but also failed to appreciate that the act was taking place at all.  If false, the accused is simply untruthful.  Nevertheless, the presence of a “disease of the mind” does trigger the application of s. 16, and an accused whose automatism is a product of a disease of the mind should be found NCRMD instead of being acquitted.  The concept of “disease of the mind” is, and should continue to be, controlled by legal considerations rather than purely medical considerations.

84                               At the same time, where as here medical experts for the prosecution and the defence agree that there is no “disease of the mind” known to medicine, and the only justification offered in support of attributing the conduct to mental disorder is the inability of an accused to identify an “external” cause, there is, in my view, an insufficient basis for (i) shifting the persuasive burden of proof from the Crown to the defence under s. 16, and (ii) taking the issue of non-mental disorder automatism away from the jury.

85                               The appellant’s point is that the jury’s rejection of the plea of mental disorder automatism may have been because they disbelieved his version of events, or it may be because they thought his acts, though involuntary, were not the product of any disease of the mind.  Failure to put the issue of non-mental disorder automatism thus deprived him of a potential acquittal on an issue for which the trial judge ruled he had laid a proper evidentiary foundation.  It is on that basis that the appellant says the judge-made rule violates the presumption of his innocence under s. 11( d )  of the Charter  and took away an important element of his right under s. 11( f )  of the Charter  to have his fate determined by the jury.  The conclusion that the issue of non-mental disorder automatism ought to have been left with the jury in this case is, I think, consistent with the observations of the majority of the members of the Australian High Court in Falconer, supra, and in particular the views of Deane and Dawson JJ. (p. 266), Toohey J. (pp. 273 and 281), and Gaudron J. (p. 285) to the effect that evidence which credibly puts in issue the voluntariness of the acts of the accused (i.e., whether the act or omission occurred independently of the exercise of his will) must be put to the jury.

86                               It is open to the Crown or defence to establish on a balance of probabilities a mental disorder.  The Crown, of course, must follow the rule in R. v. Swain, [1991] 1 S.C.R. 933, which prevents the admission of evidence relating to mental disorder by the Crown until the defence puts in issue the mental capacity of the accused for criminal intent, as explained by Lamer C.J., at p. 976:

Thus, although it is a principle of fundamental justice that an accused has the right to control his or her own defence, this is not an “absolute” right.  If an accused chooses to conduct his or her defence in such a way that that accused’s mental capacity for criminal intent is somehow put into question, then the Crown will be entitled to “complete the picture” by raising its own evidence of insanity and the trial judge will be entitled to charge the jury on s. 16.  [Emphasis added.]

The same point was made by La Forest J. in Parks, supra, at p. 898, in relation to automatism:

If the accused pleads automatism, the Crown is then entitled to raise the issue of insanity, but the prosecution then bears the burden of proving that the condition in question stems from a disease of the mind; see Rabey, supra, at pp. 544-45.

If the jury were satisfied that the s. 16 requirements were met, that would end the matter:  the appellant would have been found not criminally responsible on account of mental disorder (NCRMD).  He or she would not be permitted to ignore NCRMD status and seek a full acquittal on the basis of involuntariness.  However, in my view, if the jury rejects NCRMD status, it should still be left with the elementary instruction that the accused is entitled to an acquittal if the Crown fails to establish beyond a reasonable doubt all of the elements of the offence, including voluntariness.

(4)  Competence of the Jury

87                               For these reasons, it is my view that, the trial judge having ruled that the appellant had successfully discharged the evidential onus, the appellant was entitled to have the issue of voluntariness put to the jury.  In reaching that conclusion I have not forgotten the sceptical observation of Williams noted earlier, at pp. 673-74:

How strange, the layman may say, and how very convenient for the defendant, that this alleged state of dissociation descended on him at the very moment when he had reason for evading the police, or when he was face to face with a person whom he had a strong motive for attacking. [Emphasis added.]

It is significant that the author pointedly refers to “the layman” and suggests that the layman’s common sense would make quick work of the legal complexities conjured up by the jurisprudence on the topic of automatism.  Nor have I forgotten Dickson J.’s concern about the potential for fake pleas of automatism which he expressed in Rabey at p. 546:

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.

In part, Dickson J.’s answer to these concerns was to specify the content of the evidential burden resting on an accused, requiring (at p. 552) that the evidence of the accused

. . .  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.

Under the Dickson approach, the medical expert has to vouch for the credibility of the accused’s evidence of unconsciousness, and thus involuntariness.

88                               More profoundly, however, I think Dickson J.’s response to these concerns was an endorsement of the role of the jury contemplated by Parliament as he expressed, for example, in R. v. Corbett, [1988] 1 S.C.R. 670, at p. 693:

It is of course, entirely possible to construct an argument disputing the theory of trial by jury.  Juries are capable of egregious mistakes and they may at times seem to be ill-adapted to the exigencies of an increasingly complicated and refined criminal law.  But until the paradigm is altered by Parliament, the Court should not be heard to call into question the capacity of juries to do the job assigned to them.

to which he added, at pp. 693-94:

We should maintain our strong faith in juries which have, in the words of Sir William Holdsworth, “for some hundreds of years been constantly bringing the rules of law to the touchstone of contemporary common sense” (Holdsworth, A History of English Law (7th ed. 1956), vol. I, at p. 349).

89                               The common sense of members of the jury is a fundamental and vital part of our criminal justice system.  As Cory J. stated in Osolin, supra, at p. 683:  “The jury system has in general functioned exceptionally well.  Its importance has been recognized in s. 11( f )  of the Charter .”  More specifically, in the context of intoxication and mens rea, Dickson C.J. observed in R. v. Bernard, [1988] 2 S.C.R. 833, at p. 848, quoting R. v. Hill, [1986] 1 S.C.R. 313, at p. 334:

“I have the greatest of confidence in the level of intelligence and plain common sense of the average Canadian jury sitting on a criminal case.  Juries are perfectly capable of sizing the matter up.”

The jury in this case, for example, had before it the testimony of the Crown psychiatrist that the appellant’s violent response to his wife’s verbal attack was entirely too purposeful  and the loss of memory entirely too convenient to be considered “involuntary”.  The members of the jury could, I think, have been counted on to exhibit powerful scepticism about such evidence.  Anyone who thinks a jury of bus drivers, office workers and other practical people will be less sceptical than members of the bench or professors of law has perhaps spent insufficient time in buses or around office coffee machines.           

(5)  Conclusion on the Automatism Issue

90                               In the result, I believe the appellant was entitled to have the plea of non-mental disorder automatism left to the jury in this case in light of the trial judge’s evidentiary ruling that there was evidence the appellant was unconscious throughout the commission of the offence, for the following reasons.

91                               Firstly, I do not accept the Crown’s argument that a judge-made classification of situations into mental disorder automatism and non-mental disorder automatism can relieve the Crown of the obligation to prove all of the elements of the offence, including voluntariness.  As stated, such an interpretation encounters strong objections under s. 7  and s. 11( d )  of the Charter , and there has been no attempt in this case to provide a s. 1 justification.

92                               Secondly, imposition of a persuasive burden of proof on the appellant to establish “involuntariness” on a balance of probabilities, in substitution for the present evidential burden, runs into the same Charter  problems, and no attempt has been made in the record to justify it.

93                               Thirdly, the “internal cause” theory, on which the Crown rested its argument, cannot be used to deprive the appellant of the benefit of the jury’s consideration of the voluntariness of his action, once he had met the evidential onus, without risking a violation of s. 11( f )  of the Charter .  Rabey’s treatment of the internal cause theory has to be looked at  in light of the decision of this Court in Parks, supra, which signalled some serious reservations about the usefulness of the “internal cause” theory, except as an “analytical tool”.  Rabey, as clarified in Parks, does not impose a presumption that a lack of voluntariness must be attributed to the existence of a mental disorder any time there is no identification of a convincing external cause.  Once the appellant in this case had discharged his evidential onus, he was entitled to have the issue of voluntariness go to the jury.

94                               Fourthly, it was wrong of the courts to require the appellant to substitute for his chosen defence of involuntariness the conceptually quite different plea of insanity.  One of the few points of agreement between the defence and Crown experts at trial was that the appellant did not suffer from anything that could be described medically as a disease of the mind.  He was either unconscious at the time of the killing or he was not telling the truth at the time of the trial.  This was a question for the jury.  The statutory inquiry into whether he was “suffering from a mental disorder” that rendered him “incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong” are qualitative questions that are not really responsive to his allegation that he was not conscious of having acted at all.

95                               Finally, the evidence established that there are states of automatism where perfectly sane people lose conscious control over their actions.  At that point, it was up to the jury, not the judge, to decide if the appellant had brought himself within the physical and mental condition thus identified.  As Dickson C.J. observed in Bernard, supra, at p. 848, the jurors were “perfectly capable of sizing the matter up”. 

B.   Forced Disclosure of Expert Report to Crown

96                               The appellant advanced a second issue on the conviction appeal, asserting that the trial judge had made a reversible error in ordering the production of Dr. Janke’s report to the Crown at the outset of the defence case.  McEachern C.J. agreed that a report prepared by a defence expert would normally be privileged and not properly subject to a disclosure order.  However, he held that in light of comments made by defence counsel at the opening of the defence case, and the fact Dr. Janke’s report would have been disclosed in any event as soon as he took the witness stand, premature disclosure had not occasioned any miscarriage of justice. 

97                               In my view, it was unnecessary to rely on the curative provision of s. 686 in this case.  The appellant, through his counsel, waived the privilege in the report at the opening of the defence case.  At that time defence counsel made the following references to the content of Dr. Janke’s anticipated evidence:

As I have indicated earlier, you have heard during the Crown’s case what happened. You are now about to hear from Mr. Stone and from a forensic psychiatrist, Dr. Janke, why it happened. Dr. Janke will explain that Mr. Stone’s state of mind at the time of the killing was known in psychiatric terms as a dissociative state.

                                                                      . . .

Dr. Janke is a psychiatrist who works in private practice, on contract with the government, and he teaches at UBC. He will give evidence to explain in psychiatric terms his diagnosis of Mr. Stone’s state of mind at the time of the attack.  He will say that Mr. Stone was in a dissociative state or acting as an automaton, that is, somebody who is acting unconsciously. He will say that as Mr. Stone was not acting consciously, he could not have intended to kill his wife. [Emphasis added.]

98                               By disclosing what he wanted from the report in favour of the accused, defence counsel could not then conceal the balance of the report whose contents might contradict or put in context what had been disclosed.  It is true that Dr. Janke’s report  included not only his diagnosis, but a recital of the facts as provided by the appellant and which formed the basis of his expert opinion.  It was through disclosure of the report, for example, that the Crown learned that the accused, contrary to his initial trial testimony, appeared to have some recall of the beginning of the fatal assault by way of a dream.  The contents of the report, including the statements attributed to the appellant, were of course known to defence counsel at the time he chose to make the disclosure to the jury.  It was not open to the appellant to pick and choose the portions of an expert report to be put before the trier of fact.  Accordingly, the trial judge acted appropriately by ordering the production of Dr. Janke’s report at the conclusion of the defence opening address.

99                               However, I would also, if it were necessary, give effect to the alternative ground accepted by McEachern C.J.  The act of calling of Dr. Janke would certainly constitute waiver of any privilege attached to his report. As noted by McEachern C.J., once a witness takes the stand, he/she can no longer be characterized as offering private advice to a party.  They are offering an opinion for the assistance of the court.  As such, the opposing party must be given access to the foundation of such opinions to test them adequately.  Given the fact that the report would have to have been disclosed after Dr. Janke’s direct examination, the prior disclosure of the report cannot be said to have had any material impact on the outcome of the trial.  Absent the earlier disclosure, the Crown would have been entitled to stand the appellant down before completing its cross-examination of him, and to recall him once they had been given an opportunity to consider the contents of the report.  Accordingly, even if defence counsel’s opening address had been insufficient to trigger disclosure, s. 686(1)(b)(iii) of the Code would properly be applied to cure the error.

IV.  Disposition

100                           In the result, I would have allowed the appeal, set aside the order of the British Columbia Court of Appeal and directed a new trial.  Had I shared the conclusion of Bastarache J. to dismiss the appeal against conviction, I would also have concurred in the dismissal of the Crown’s appeal on sentence for the reasons he gives.

The judgment of L’Heureux-Dubé, Gonthier, Cory , McLachlin and Bastarache JJ. was delivered by

//Bastarache J.//

101                           Bastarache J. — The present case involves automatism, and more specifically, “psychological blow” automatism.  The appellant claims that nothing more than his wife’s words caused him to enter an automatistic state in which his actions, which include stabbing his wife 47 times, were involuntary.  How can an accused demonstrate that mere words caused him to enter an automatistic state such that his actions were involuntary and thus do not attract criminal law sanction?  This is the issue raised in this appeal.

I.  Facts

102                           The appellant was charged with the murder of his wife, Donna Stone.  At trial, the appellant admitted killing his wife.  In his defence, the appellant claimed:  insane automatism, non-insane automatism, lack of intent, and alternatively, provocation.

103                           The appellant met Donna Stone in the spring of 1993 and the two were married on May 8, 1993.  They lived in Winfield, British Columbia, in the Okanagan Valley.  This was the appellant’s third marriage.  He has two teenage sons from his second marriage.  His sons live with their mother in Surrey, British Columbia, a suburb of Vancouver.

104                           In March 1994, the appellant planned a business trip to Vancouver.  He decided to visit his sons while in the Vancouver area.  He contacted his second wife and made arrangements to take his sons out for dinner and a movie.  The appellant did not tell Donna Stone of his intention to travel to Vancouver and visit his sons because she did not get along with them.

105                           According to the appellant, Donna Stone learned of his intention to go to Vancouver.  She demanded to go along with him and said she would follow him in another vehicle if he did not take her.  The appellant agreed to take her with him to Vancouver.

106                           The appellant testified that Donna Stone berated him throughout the drive to Vancouver and objected to his visit with his sons.  Nevertheless, the appellant drove to the home of his second wife for the planned visit with his sons.  The visit lasted only 15 minutes because Donna Stone threatened to “lay on the horn until the police come”.

107                           The appellant testified that after the brief visit with his sons, he and Donna Stone drove towards Vancouver.  According to the appellant, Donna Stone asked him if he wanted a divorce.  He responded that they might as well get divorced if she was not going to let him see his sons.  This answer upset the victim and she again began to berate the appellant.

108                           The appellant testified that he pulled into an empty lot and turned off the truck’s engine while Donna Stone continued to yell at him:

. . . I sat there with my head down while she’s still yelling at me that I’m nothing but a piece of shit and that when she had talked to the police, that she had told them lies, that I was abusing her, and that they were getting all the paperwork ready to have me arrested, and that all she had to do was phone them; and once they had me arrested, that she was going to get a court order so that I wouldn’t be allowed back onto our property and that I would have to go and live with my mother and run my business from there, that she was going to quit working and she was just going to stay in the house with her children and that I would have to pay her alimony and child support.

. . . Well, she just continued on and she just said that she couldn’t stand to listen to me whistle, that every time I touched her, she felt sick, that I was a lousy fuck and that I had a little penis and that she’s never going to fuck me again, and I’m just sitting there with my head down; and by this time, she’s kneeling on the seat and she’s yelling this in my face.  . . .

109                           The appellant testified that the victim’s voice began to fade off.  He recalls wondering why she was treating him and his children in this way.  He also remembers thinking about how people in the small town in which he lived would look at him if his wife had him arrested.  The appellant then remembers a “whoosh” sensation washing over him from his feet to his head.  According to the appellant, when his eyes focussed again, he was staring straight ahead and felt something in his hand.  He was holding a six-inch hunting knife which he kept in the truck.  He looked over and saw Donna Stone slumped over on the seat.  He knew she was dead.  It would later be determined that Donna Stone died from loss of blood resulting from 47 stab wounds.

110                           The appellant testified that he opened the passenger door and Donna Stone’s body fell out onto the ground.  After five to ten minutes, the appellant put his wife’s body in a toolbox in the back of his truck.  He then washed the blood from his hands in a puddle, removed his bloody clothes and put on extra clothes he kept in the truck.  The appellant then pulled out of the empty lot and drove to a nearby motel where he asked for directions home and purchased a six-pack of beer to calm his nerves.

111                           According to the appellant, he arrived home around 3:00 a.m.  He did not immediately go in because the lights were on and he feared someone was still awake.  The appellant parked down the road until 6:00 a.m.  He then drove the truck into his garage and went into the house where he cleaned up and packed a few shirts.  He left a note for his step-daughter, the daughter of the victim:

Sorry, Nicole, but she just wouldn’t stop yelling at me.  My loan to the bank, credit union has insurance on it if I die.  Love Bert

112                           The appellant testified that he checked into a hotel so he could take a shower and shave.  He then collected an outstanding debt, sold a car he owned and took a cab to the airport.  He flew to Mexico.  While in Mexico, the appellant awoke one morning to the sensation of having his throat cut.  In trying to recall his dream, he remembered stabbing Donna Stone twice in the chest before experiencing the “whooshing” sensation.

113                           Donna Stone’s body was found in the tool box in the appellant’s truck two days after her death.

114                           The appellant returned to Canada approximately six weeks later on May 2, 1994.  The next day he spoke to a lawyer and then surrendered himself to police.

II.  Psychiatric Evidence

115                           Two psychiatrists gave evidence in this case.  The defence psychiatrist, Dr. Janke, interviewed the appellant on two occasions approximately 18 months after the killing.  The Crown psychiatrist, Dr. Murphy, interviewed the appellant for one hour on the seventh day of the trial.

A.  Evidence of Dr. Janke

116                           Dr. Janke testified that a dissociative episode is a medical term for a circumstance in which an individual’s thinking component, including his judgment and ability to know what he is doing, splits from his physical body.  According to Dr. Janke, dissociation can be caused by a psychological blow and is often accompanied by partial to complete memory loss.  Dr. Janke was unaware of any cases in which a violent dissociative episode had recurred.

117                           Dr. Janke testified that the appellant’s account of the facts in this case was consistent with a dissociative episode caused by a series of psychological blows.  In particular, Dr. Janke noted that the following facts are consistent with dissociation:  Donna Stone’s words immediately prior to the killing were extreme; the appellant’s second wife reported that two to three hours before the killing the appellant seemed out of character; the appellant reported experiencing a “whooshing” sensation followed by a re-awareness stage; the appellant reported decreasing concentration, difficulty following driving directions and memory loss; and the attack was of a frenzied, overkill nature.

118                           In Dr. Janke’s opinion, the appellant was in a dissociative state for at least the majority of the attack on Donna Stone.  According to Dr. Janke, this state resulted from Donna Stone’s extreme insults which must be viewed in the context of the stress the appellant had endured throughout the day.  However, Dr. Janke qualified his opinion by noting that it was largely dependant on the accuracy and truthfulness of the appellant’s account of events.

119                           According to Dr. Janke, there was no evidence that the appellant suffered from any psychiatric or physical condition which could have been responsible for a dissociative episode.  The only psychological factor the appellant possessed which may have contributed to a dissociative episode was his tendency not to be aware of his emotional state.  Dr. Janke considered this factor to be within the normal range of human behaviour.

120                           Dr. Janke agreed that the appellant told him that while he was in Mexico, he “became aware of a memory of having a knife in his hand and stabbing Donna Stone twice in the chest before having the ‘whooshing’ sensation” (emphasis added).  However, Dr. Janke pointed out that an individual who has had a dissociative episode is usually unable to sequence memories of events surrounding the episode accurately and chronologically.

B.  Evidence of Dr. Murphy

121                           Dr. Murphy agreed with much of Dr. Janke’s evidence about dissociation generally.  For example, she accepted his explanation of what dissociation is.  She also agreed that dissociation is often accompanied by memory loss and an inability to sequence memories of events surrounding the episode accurately and chronologically.  Like Dr. Janke, Dr. Murphy was unaware of any cases in which a violent dissociative episode had recurred.

122                           In relation to the appellant’s claim of dissociation, Dr. Murphy testified that it is possible that the appellant was in a dissociative state when he killed Donna Stone.  However, she noted that there is no scientific method of completely ruling out a claim of dissociation once it has been made.  Furthermore, she opined that although it is possible, it is extremely unlikely that the appellant was in a dissociative state when he killed his wife.  Dr. Murphy’s scepticism was based upon several factors.  First, she pointed out that the appellant’s reported decrease in concentration, difficulty following driving directions and memory loss were common phenomenon which, though consistent with dissociation, could easily be attributed to a number of other factors.  In particular, the appellant’s reported lack of memory in itself is not conclusive since up to 50 per cent of people who are charged with serious crimes report that they do not remember the incident.  Dr. Murphy also pointed out that the frenzied, overkill nature of the attack was equally consistent with rage as with dissociation.

123                           Dr. Murphy noted that the mind and body of a person in a dissociative state have been split.  For this reason, she would expect that there would usually be no connection between the dissociated acts and the social context immediately preceding them.  For example, a person who is watching television with a group of people might get up and urinate in front of the others.  According to Dr. Murphy, the fact that Donna Stone was both the trigger of the dissociative episode and the victim of the appellant’s dissociated violence renders the appellant’s claim of dissociation suspect.

124                           Finally, Dr. Murphy noted that Dr. Janke’s opinion that the appellant had experienced a dissociative episode was based almost exclusively on the appellant’s account of events.  She testified that psychiatrists must view claims of dissociation with suspicion if they are made in legal contexts where the claimant has an obvious interest in a favourable disposition.  In such circumstances, the evidence of bystanders who can corroborate the claimant’s explanation of events and provide information about the appearance of the claimant at the time of the incident is an important element in confirming the validity of a claim of dissociation.

125                           Dr. Murphy agreed with Dr. Janke that there was no evidence that the appellant suffered from any medically recognized psychiatric disorder which could have been responsible for a dissociative episode.

III.  Judicial History

A.  British Columbia Supreme Court — Brenner J.

(1)  Ruling on Whether to Instruct the Jury on Automatism

126                           Brenner J. considered whether or not to put the defence of automatism to the jury in the context of a voir dire.  He identified his first task:  to determine, as a question of law, whether the defence had raised sufficient evidence of involuntariness such that the general defence of automatism was entitled to be put to the jury.

127                           Brenner J. then turned to the definition of automatism.  He cited the definition of Dickson J., as he then was, speaking in dissent in Rabey v. The Queen, [1980] 2 S.C.R. 513, at p. 552:

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.

128                           Noting that this definition had been approved by La Forest J., speaking for the majority of this Court, in R. v. Parks, [1992] 2 S.C.R. 871, at p. 905, Brenner J. concluded that the defence of automatism is only available where there is evidence of unconsciousness throughout the commission of the crime.  However, the evidence in the present case revealed that while in Mexico, the appellant recalled inflicting two of the stab wounds to Donna Stone’s chest before experiencing the “whooshing” sensation.  Nevertheless, since automatism had been left with juries in other British Columbia cases in which accused persons had partial recollection of the crime, Brenner J. concluded that the authorities did not exclude the availability of this defence merely because the appellant has some recollection of what happened.

129                           Brenner J. held that in the present case there was evidence of unconsciousness throughout the commission of the crime because the only recollection of events had come to the appellant in a dream several days after he had killed Donna Stone.  As a result, he found that the defence had laid the proper evidentiary foundation for the general defence of automatism.  Brenner J. then correctly identified the second question before him:  whether insane or non-insane automatism should be left with the jury.

130                           Brenner J. found the case of R. v. MacLeod (1980), 52 C.C.C. (2d) 193 (B.C.C.A.), indistinguishable.  In MacLeod, the British Columbia Court of Appeal applied this Court’s decision in Rabey, supra, holding that where the only possible cause of the accused’s dissociative state was anxiety, an internal factor, the accused must have been suffering from a disease of the mind in the legal sense and accordingly only insane automatism should be left with the jury.

131                           Applying MacLeod, Brenner J. ruled that the only form of automatism available to the appellant was insane automatism.  As a result, he instructed the jury on insane automatism, intention in relation to second degree murder and provocation.  He then set out three possible verdicts open to the jury:  not criminally responsible on account of mental disorder, guilty or not guilty of the offence of second degree murder, and guilty of the included offence of manslaughter.  The jury found the appellant criminally responsible but not guilty of second degree murder.  Brenner J. directed a verdict on the included offence of manslaughter.

(2)  Ruling on the Disclosure of the Defence Expert Report to the Crown

132                           In opening remarks, counsel for the defence stated that the evidence which would be given by Dr. Janke, the defence psychiatrist, would support the defence of automatism.  At the conclusion of the defence’s opening remarks, the Crown requested production of a copy of the report prepared by Dr. Janke.  The Crown submitted that it required the report to cross-examine the appellant on the statements he had made to Dr. Janke.  According to the Crown, this was necessary in order to assist the jury in determining what weight to place on Dr. Janke’s assessment.  The defence denied the Crown’s request claiming that it had no obligation to produce the report.  However, the defence acknowledged that it would nevertheless supply the Crown with a copy of the report at the end of the appellant’s testimony.  The defence made no claim of privilege.

133                           Brenner J. ordered the defence to produce Dr. Janke’s report immediately stating that “the Crown ought to be in a position of being able to explore on cross-examination with the accused whatever statements Dr. Janke may or may not have relied upon in his report”.  The Crown relied on the report in its cross-examination of the appellant.

(3)  Sentencing

134                           A sentencing hearing was held on December 1, 1995 before Brenner J.  Defence counsel argued that a sentence of one to two years was appropriate, in addition to the 18 months the appellant had already spent in custody.  The Crown suggested a sentence of 15 years to life imprisonment.  The Crown agreed that the 18 months the appellant had already spent in custody had to be taken into account in determining an appropriate sentence.

135                           Brenner J. began by noting that the jury had accepted the defence of provocation, and the appellant had accordingly been convicted of manslaughter rather than second degree murder.  After reviewing the circumstances of the offence and the appellant’s background, he concluded that the principle concern of this sentencing was general deterrence, specifically noting in particular that this was an offence of domestic violence.

136                           Brenner J. was of the opinion that sentencing had to be assessed in light of the jury’s acceptance of the defence of provocation, while still bearing in mind the brutality of the offence.  After reviewing a number of cases, two of which he found particularly relevant — R. v. Archibald (1992), 15 B.C.A.C. 301, and R. v. Eklund, [1985] B.C.J. No. 2415 (QL) (C.A.) — Brenner J. sentenced the appellant to a further four years in jail, treating the appellant’s 18-month pre-trial custody as the equivalent of a three-year sentence.

B.  British Columbia Court of Appeal — (1997), 86 B.C.A.C. 169 (Conviction) and

     (1997), 89 B.C.A.C. 139 (Sentencing)

(1)  Should Non-Insane Automatism Have Been Left with the Jury?

137                           McEachern C.J. (Cumming and Braidwood JJ.A. concurring) began by reviewing the facts.  He then turned to the first ground of appeal:  whether the trial judge had erred in failing to leave non-insane automatism to the jury.

138                           McEachern C.J. reviewed the two-step process which must be followed by trial judges when dealing with claims of automatism.  First, the judge must determine whether or not the accused has raised sufficient evidence to give the general defence of automatism an air of reality.  Next, if this proper evidentiary foundation has been laid by the defence, the trial judge must determine whether insane or non-insane automatism should be left with the trier of fact.  This entails determining whether or not the automatism stemmed from a disease of the mind.  According to McEachern C.J., at p. 173, “the defence must identify evidence from which the jury could reasonably conclude that the dissociated state was not caused by a disease of the mind.  If there is no such evidence, a dissociated state could only result from a disease of the mind.”

139                           After specifically commenting that the only explanation for the alleged automatism was the critical and insulting words of Donna Stone, McEachern C.J. cited this Court’s decision in Rabey, supra, for the proposition that a violent reaction to psychological trauma is generally attributed to the actor’s internal psychological make-up and thus characterized as a disease of the mind, giving rise to a defence of insane, rather than non-insane, automatism.

140                           McEachern C.J. then reviewed (at p. 175) this Court’s decision in Parks and particularly the following words of La Forest J., at p. 902:

“. . . that the [internal cause] theory is really meant to be used only as an analytical tool, and not as an all-encompassing methodology.  As Watt J. commented in his reasons in support of his charge to the jury in this case, the dichotomy “constitutes a general, but not an unremitting or universal, classificatory scheme for ‘disease of the mind’”.”

141                           McEachern C.J. concluded that La Forest J.’s comments in Parks must be read in light of the fact that that case involved sleepwalking, which gives rise to special considerations.  He therefore rejected the argument that Parks could be cited as authority for the proposition that the trial judge erred in applying the Rabey internal cause theory to the facts of the present case.  According to McEachern C.J., Parks simply recognizes that courts are justified in straying from the internal cause theory if the unique facts of a given case are not well suited to an analysis under that theory.

142                           McEachern C.J. correctly noted that the jurisprudence surrounding “disease of the mind” has evolved beyond the strict application of the internal cause theory as dictated in Rabey.  In particular, later authorities reveal that policy considerations are also to be taken into account in assessing whether or not automatism stems from a disease of the mind.

143                           After assessing the relevant case law, McEachern C.J. was not satisfied that the trial judge erred in concluding that the internal cause theory was the best guide based on the bizarre facts of this case.  Unlike Parks, there were no circumstances which required departure from this approach.  Furthermore, there were valid reasons, including policy concerns, supporting the trial judge’s decision to reject the expert evidence that the appellant was not suffering from a disease of the mind in a medical sense.  There was no indication that the trial judge failed to consider these policy factors in deciding to leave only insane automatism to the jury, particularly since he had made his ruling at nisi prius where judges are not expected to articulate all of their reasons.  To the contrary, the trial judge’s reference to Parks indicated that he was aware of his duty to take policy considerations into account in assessing which species of automatism to leave with the jury.

144                           McEachern C.J. concluded that the trial judge had carefully considered all of the evidence and was justified in deciding not to leave sane automatism with the jury.  He thus refused to disturb that decision.

(2)  Ordered Disclosure of Defence Expert Report to the Crown

145                           McEachern C.J. (with Cumming and Braidwood JJ.A. concurring) began by reviewing the facts surrounding the disclosure, including the use the Crown made of Dr. Janke’s report in its cross-examination of the appellant.

146                           Relying on R. v. Peruta (1992), 78 C.C.C. (3d) 350, sub nom. Brouillette c. R., [1992] R.J.Q. 2776 (C.A.), and Hodgkinson v. Simms (1988), 33 B.C.L.R. (2d) 129 (C.A.), McEachern C.J. concluded that Dr. Janke’s report was privileged under the rubric of solicitor’s privilege.  Despite the fact that the defence did not claim this privilege, the trial judge should have protected the privilege since the report might well have contained prejudicial information unrelated to automatism.  McEachern C.J. therefore concluded that he must uphold this ground of appeal unless there was no substantial miscarriage of justice under s. 686(1)(b)(iii) of the Criminal Code , R.S.C., 1985, c. C-46 .

147                           In assessing whether there was no substantial miscarriage of justice, McEachern C.J. noted that the defence was entitled to change tactics and not call Dr. Janke despite its opening remarks.  He also opined that a statement by counsel that a witness will be called does not constitute a waiver of privilege.  However, the Crown was entitled to cross-examine the appellant on the statements he had made to Dr. Janke.  According to McEachern C.J., if the defence refused to produce the report for this purpose, the Crown could stand the appellant down and resume its cross-examination after Dr. Janke had given evidence.  After Dr. Janke was called, the Crown was entitled to a copy of his report because privilege of an expert report is waived when the expert takes the stand.  Having examined the report and cross-examined Dr. Janke, if there was any discrepancy between the appellant’s evidence and what the report indicates he said to the doctor, the Crown could resume its cross-examination of the appellant in order to question him about his previous inconsistent statement.

148                           McEachern C.J. concluded that there was no substantial miscarriage of justice in the present case because the Crown could properly have achieved the same result using the more complicated procedure examined above.  He therefore dismissed this ground of appeal.

(3)  Sentencing

149                           The Crown had two primary grounds of appeal on the sentencing issue in the Court of Appeal.  First, the Crown argued that the trial judge erred in considering provocation as a mitigating factor in sentencing after s. 232 of the Code had reduced a verdict of murder to one of manslaughter.  Second, the Crown argued that the seven-year sentence imposed by the trial judge was clearly unreasonable.

150                           Finch J.A. (Esson and Donald JJ.A. concurring) began by reviewing the circumstances of the offence, the psychiatric evidence and the appellant’s background.  He then cited this Court’s decisions in R. v. Shropshire, [1995] 4 S.C.R. 227, and R. v. M. (C.A.), [1996] 1 S.C.R. 500, on the standard of appellate review of sentencing.

151                           Finch J.A. rejected the Crown’s duplication argument with respect to provocation.  He found that the trial judge was correct to consider provocation as a mitigating factor when sentencing the appellant.  He reasoned that the provocation evidence was probative as to the appellant’s state of mind at the time of the killing and as such was relevant to the issue of moral blameworthiness.  According to Finch J.A., the consideration of this evidence, among all of the other relevant evidence, did not give the appellant a second or unfair benefit.

152                           Finch J.A. concluded that the sentence was not clearly unreasonable.  It adequately reflected the gravity of the offence and the moral culpability of the appellant.  It was also within the range indicated by the case law.  The Crown’s sentence appeal was accordingly dismissed.

IV.  Issues

153                           1.    Did the Court of Appeal err in upholding the decision of the learned trial judge to refuse to leave the “defence” of non-insane automatism to the jury?

2.    Did the Court of Appeal err in holding that there was no miscarriage of justice when the defence report of Dr. Janke was ordered disclosed to the Crown?

3.    (a)       Did the Court of Appeal err in principle in deciding that the sentencing judge was entitled to consider provocation as a mitigating factor for manslaughter where the same provocation, through the operation of s. 232  of the Criminal Code  had already reduced the stigma and penalty of an intentional killing from murder to manslaughter?

(b)       Did the Court of Appeal err in upholding a demonstrably unfit sentence that failed to reflect the gravity of the offence properly and the moral culpability of the offender?

V.  Relevant Statutory Provisions

154                           Criminal Code , R.S.C., 1985, c. C-46 

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

232.  (1)  Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation.

(2)  A wrongful act or an insult that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section if the accused acted on it on the sudden and before there was time for his passion to cool.

(3)  For the purposes of this section, the questions

(a)  whether a particular wrongful act or insult amounted to provocation, and

(b)  whether the accused was deprived of the power of self-control by the provocation that he alleges he received,

are questions of fact, but no one shall be deemed to have given provocation to another by doing anything that he had a legal right to do, or by doing anything that the accused incited him to do in order to provide the accused with an excuse for causing death or bodily harm to any human being.

(4)  Culpable homicide that otherwise would be murder is not necessarily manslaughter by reason only that it was committed by a person who was being arrested illegally, but the fact that the illegality of the arrest was known to the accused may be evidence of provocation for the purpose of this section.

687.  (1)  Where an appeal is taken against sentence, the court of appeal shall, unless the sentence is one fixed by law, consider the fitness of the sentence appealed against, and may on such evidence, if any, as it thinks fit to require or to receive,

(a)  vary the sentence within the limits prescribed by law for the offence of which the accused was convicted; or

(b)  dismiss the appeal.

718.2  A court that imposes a sentence shall also take into consideration the following principles:

(a)  a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

                                                                      . . .

(ii)  evidence that the offender, in committing the offence, abused the offender’s spouse or child . . .

shall be deemed to be aggravating circumstances;

Canadian Charter of Rights and Freedoms 

1.  The Canadian Charter of Rights and Freedoms  guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

7.  Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

11.  Any person charged with an offence has the right

                                                                      . . .

(d)  to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

VI.  Analysis

1.    Did the Court of Appeal err in upholding the decision of the learned trial judge to refuse to leave the “defence” of non-insane automatism to the jury?

A.  The Nature of Automatism

155                           The legal term “automatism” has been defined on many occasions by many courts.  In Rabey, supra, Ritchie J., speaking for the majority of this Court, at p. 518, adopted the following definition of the Ontario High Court of Justice in R. v. K. (1970), 3 C.C.C. (2d) 84, at p. 84:

Automatism is a term used to describe unconscious involuntary behaviour, the state of a person who, though capable of action, is not conscious of what he is doing.  It means an unconscious, involuntary act, where the mind does not go with what is being done.

156                           The reference to unconsciousness in the definition of automatism has been the source of some criticism.  In her article “Automatism and Criminal Responsibility” (1982-83), 25 Crim. L.Q. 95, W. H. Holland points out that this reference to unconsciousness reveals that the law assumes that a person is necessarily either conscious or unconscious.  However, the medical literature speaks of different levels of consciousness (p. 96).  Indeed, the expert evidence in the present case reveals that medically speaking, “unconscious” means “flat on the floor”, that is, in a comatose-type state.  I therefore prefer to define automatism as a state of impaired consciousness, rather than unconsciousness, in which an individual, though capable of action, has no voluntary control over that action.

157                           Two forms of automatism are recognized at law:  insane automatism and non-insane automatism.  Involuntary action which does not stem from a disease of the mind gives rise to a claim of non-insane automatism.  If successful, a claim of non-insane automatism entitles the accused to an acquittal.  In Parks, supra, La Forest J. cited with approval, at p. 896, the following words of Dickson J. speaking in dissent in Rabey, supra, 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 of automatism exists as a middle ground between criminal responsibility and legal insanity is beyond question.

158                           On the other hand, involuntary action which is found, at law, to result from a disease of the mind gives rise to a claim of insane automatism.  It has long been recognized that insane automatism is subsumed by the defence of mental disorder, formerly referred to as the defence of insanity.  For example, in Rabey, supra, Ritchie J. adopted the reasoning of Martin J.A. of the Ontario Court of Appeal.  In R. v. Rabey (1977), 17 O.R. (2d) 1, Martin J.A. stated, at p. 12:

Automatism caused by disease of the mind is subsumed under the defence of insanity leading to the special verdict of not guilty on account of insanity, whereas automatism not resulting from disease of the mind leads to an absolute acquittal. . . .

159                           Likewise, in dissent in Rabey (S.C.C.), Dickson J. noted, at p. 524:

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.

160                           More recently, in Parks, supra, La Forest J. confirmed that insane automatism falls within the scope of the defence of mental disorder as set out in s. 16 of the Code when he noted that where automatism stems from a disease of the mind, the accused is entitled to a verdict of insanity rather than an acquittal (p. 896).  See also R. v. Chaulk, [1990] 3 S.C.R. 1303, at p. 1321.  This classification is consistent with the wording of s. 16, which makes no distinction between voluntary and involuntary acts.  Furthermore, the inclusion of mental disorder automatism within the ambit of s. 16 provides courts with an appropriate framework for protecting the public from offenders whose involuntarily criminal acts are rooted in diseases of the mind.  Courts in other commonwealth countries have also recognized that insane automatism is subsumed by the defence of mental disorder or insanity.  See for example Bratty v. Attorney-General for Northern Ireland, [1963] A.C. 386 (H.L.), at pp. 410 and 414; R. v. Falconer (1990), 50 A. Crim. R. 244 (H.C.), at pp. 255-56, 265 and 273-74; R. v. Cottle, [1958] N.Z.L.R. 999, at p. 1007.

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

B.  Establishing a Single Approach to all Cases Involving Claims of Automatism

162                           Automatism may arise in different contexts.  For example, in Parks, supra, this Court dealt with a claim of automatism attributed to a state of somnambulism.  In R. v. Daviault, [1994] 3 S.C.R. 63, this Court addressed extreme intoxication akin to a state of automatism.  In the present case, the appellant claims that nothing more than his wife’s words caused him to enter an automatistic state.  This type of claim has become known as “psychological blow” automatism.  Automatism attributed to a psychological blow was at the centre of this Court’s decision in Rabey, supra.

163                           The application of different legal tests for automatism dependent on the context in which the alleged automatism arose is a problem because there may be cases in which the facts simply are not conducive to such strict categorization.  Cases involving disputes over the cause of the alleged automatism come to mind.  The solution to this problem is, of course, to develop a general test applicable to all cases involving claims of automatism.  This I will do in these reasons.  I therefore emphasize that the following analysis is meant to apply to all claims of automatism and not simply to cases of “psychological blow” automatism.  In my opinion, the most effective general test will incorporate various elements of this Court’s most recent statements on automatistic-like behaviour; see Daviault, Parks and Rabey.

164                           In Parks, supra, La Forest J. set out two discrete tasks which trial judges must undertake in determining whether automatism should be left with the trier of fact.  First, he or she must assess whether a proper foundation for a defence of automatism has been established.  As I will explain below, establishing a proper foundation for automatism is the equivalent of satisfying the evidentiary burden for this defence.  The mere assertion of involuntariness will not suffice.  If a proper evidentiary foundation has been established, the trial judge must next determine whether the condition alleged by the accused is mental disorder or non-mental disorder automatism (p. 897).

165                           In my opinion, the functionality of such a two-step framework is apparent and warrants making such an approach generally applicable to all cases involving claims of automatism.  However, this framework only provides a starting point from which to develop a general legal approach to automatism.  I will now clarify the particulars of the legal analysis which must be undertaken at each of the framework’s two stages.

C.  Step 1:  Establishing a Proper Foundation for a Defence of Automatism

166                           A review of the case law reveals that courts, including this Court, have provided little guidance about exactly what an accused must do to establish a proper foundation for a defence of automatism.  Frequently, this stage of the judicial two-step analysis consists of nothing more than a remark that there is sufficient evidence on the record.  By far the majority of judicial attention has concentrated on the second stage of the automatism analysis, that is, whether the defence of mental disorder or non-mental disorder automatism should be left with the trier of fact.  In my opinion, this Court must provide trial judges with more detail about the required elements of a proper foundation for a defence of automatism.  First, however, it is necessary to review how the proper foundation requirement fits into the general structure of our criminal law.

167                           As mentioned above, establishing a proper foundation for automatism is the equivalent of satisfying the evidentiary burden for this defence.  In The Law of Evidence in Canada (1992), J. Sopinka, S. Lederman and A. Bryant distinguish the evidentiary burden from the legal burden as follows, at p. 53:

The term “burden of proof” is used to describe two distinct concepts relating to the obligation of a party to a proceeding in connection with the proof of a case.  In its first sense, the term refers to the obligation imposed on a party to prove or disprove a fact or issue.  In the second sense, it refers to a party’s obligation to adduce evidence satisfactorily to the judge, in order to raise an issue.

168                           The first sense of the term “burden of proof” suggested by Sopinka, Lederman and Bryant is referred to as the legal or ultimate burden, while the second is known as the evidentiary burden (p. 54).  The first, or proper foundation, stage of the automatism analysis sets out what an accused must do to satisfy the evidentiary burden for automatism.  As I will discuss below, this burden is directly related to the nature of the legal burden connected with automatism.  Whether the accused has satisfied its evidentiary burden  is a question of mixed law and fact for the trial judge.  It should be noted that, until recently, this determination was considered to be a question of law:  see Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, at paras. 35 and 36.  In determining whether the evidentiary burden has been satisfied, the trial judge must assess the evidence before the court.  According to Viscount Kilmuir in Bratty, supra, at p. 406:

. . . for a defence of automatism to be “genuinely raised in a genuine fashion”, there must be evidence on which a jury could find that a state of automatism exists.  By this I mean that the defence must be able to point to some evidence, whether it emanates from their own or the Crown’s witnesses, from which the jury could reasonably infer that the accused acted in a state of automatism.  Whether or not there is such evidence is a matter of law for the judge to decide.

D.  Nature and Origin of the Burdens Applied in Cases Involving Claims of Automatism

169                           This Court has stated on many occasions that it is a fundamental principle of criminal law that only voluntary actions will attract findings of guilt.  See for example Daviault, supra, at pp. 74-75, per Cory J.; Rabey (S.C.C.), supra, at pp. 522 and 545, per Dickson J.; Parks, supra, at p. 896, per La Forest J.; Rabey (Ont. C.A.), supra, per Martin J.A., at p. 24, adopted by Ritchie J.  In R. v. Théroux, [1993] 2 S.C.R. 5, McLachlin J. classified voluntariness as the mental element of the actus reus of a crime (p. 17).  In Daviault, Cory J. also recognized that voluntariness may be linked to the actus reus (p. 102).  See also Chaulk, supra, at p. 1321, per Lamer C.J.

170                           In Parks, supra, La Forest J. classified automatism as a sub-set of the voluntariness requirement, which he too recognized as part of the actus reus component of criminal responsibility (p. 896).  I agree and would add 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.

171                           The law presumes that people act voluntarily.  Accordingly, since a defence of automatism amounts to a claim that one’s actions were not voluntary, the accused must rebut the presumption of voluntariness.  An evidentiary burden is thereby imposed on the accused.  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.

172                           My colleague, Justice Binnie, relies heavily on Dickson J.’s approach to the nature of the burdens in cases involving claims of automatism.  I do not agree that the reasons of Dickson J. provide justification for the refusal to review the appropriateness of these burdens on their merits in the present appeal.  Furthermore, I must respectfully disagree with my colleague regarding the treatment of Dickson J.’s views on this point by La Forest J. in Parks.  I note that in Parks the appropriateness of the evidentiary burden on the defence at the proper foundation stage was not directly at issue before this Court.  As a result, La Forest J. did not find it necessary to assess the precise nature of either of the burdens of proof as set out by Dickson J. in Rabey.

E.  What Should the Burdens of Proof Associated with Automatism Be?

173                           The relationship between the burdens associated with automatism dictates that any change in the legal burden of automatism will necessarily result in a change to the evidentiary or proper foundation burden associated with this defence.  The evidentiary burden will relate either to evidence sufficient to establish voluntariness beyond a reasonable doubt, as suggested by Binnie J., or, as set out below, to evidence sufficient to establish involuntariness on a balance of probabilities.  In my opinion, a review of the legal burden applicable in cases involving claims of automatism is in order.  My colleague Binnie J. is of the view that this Court ought not review either the legal or the evidentiary burden set out in the dissenting reasons of Dickson J. in Rabey.  In support of this position, Binnie J. argues that neither the respondent nor any of the intervening Attorneys General requested such a review.  With respect, I disagree.  In its written submissions, the respondent invited this Court to reconsider the trial judge’s finding that there was a proper foundation for automatism.  The respondent also requested that this Court make the proper foundation stage of the automatism analysis more stringent.  As explained above, an assessment of an evidentiary or proper foundation burden cannot be undertaken without reference to the related legal burden.

174                           In her 1993 Proposals to amend the Criminal Code (general principles), the Minister of Justice recommended that the legal burden of proof in all cases of automatism be on the party that raises the issue on a balance of probabilities.  This is the same legal burden that this Court applied to a claim of extreme intoxication akin to a state of automatism in Daviault, supra.  It is also the legal burden Parliament assigned to the defence of mental disorder in s. 16 of the Code, which, as mentioned above, is equally applicable to voluntary and involuntary actions stemming from a disease of the mind and therefore applies to mental disorder automatism.  As I explained above, different legal approaches to claims of automatism, whether based on the context in which the alleged automatism arose or on the distinction between mental disorder and non-mental disorder automatism, is problematic and should be avoided.  Indeed, counsel for the appellant in the present case recognized as much in oral argument before this Court:

No, I think that the — the conflict arises in a slightly different situation, which I’m going to come to in a moment, and that is that, when one deals with insanity, the evidentiary burden is upon the accused to establish that on the balance of probabilities.

When one comes now, pursuant to this Court’s decision in Daviault, to drunkenness akin to automatism, again, the onus is upon the accused, and the evidentiary burden as well.

Whereas in non-insane automatism, the onus simply is upon the defence to raise it and for the Crown to then disprove it beyond a reasonable doubt in essence.

So that is where I concede that there is a contradiction and that there may be some merit in having the same test and the same process applied to each of the different kinds of mental disorder, to use the term loosely.

175                           An appropriate legal burden applicable to all cases involving claims of automatism must reflect the policy concerns which surround claims of automatism.  The words of Schroeder J.A. in R. v. Szymusiak, [1972] 3 O.R. 602 (C.A.), at p. 608, come to mind:

. . . a defence which in a true and proper case may be the only one open to an honest man, but it may just as readily be the last refuge of a scoundrel.

176                           The recognition that policy considerations are relevant is nothing new to this area of criminal law.  In Rabey (Ont. C.A.), supra, Martin J.A., whose reasons were adopted by the majority of this Court, recognized that the term “disease of the mind” contains both a medical component and legal or policy component (p. 12).  Dickson J., dissenting in Rabey (S.C.C.), noted, at p. 546, that specific policy considerations were involved in determining whether a claim of automatism should be categorized as mental disorder or non-mental disorder:

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.

177                           Likewise, in Parks, supra, La Forest J. considered policy to be a relevant consideration for trial judges in distinguishing between mental disorder and non-mental disorder automatism (p. 896 and pp. 907-8).

178                           In both Rabey and Parks, policy considerations were relegated to the second stage of the automatism analysis to determine whether the condition alleged by the accused was mental disorder or non-mental disorder automatism.  In neither case is there any indication that this Court intended to preclude the consideration of policy in the determination of an appropriate legal burden for cases involving claims of automatism.

179                           The foregoing leads me to the conclusion that the legal burden in cases involving claims of automatism must be on the defence to prove involuntariness on a balance of probabilities to the trier of fact.  This is the same burden supported by Lord Goddard, dissenting in Hill v. Baxter, [1958] 1 Q.B. 277, at pp. 282-83, and imposed in some American jurisdictions; see for example State v. Caddell, 215 S.E.2d 348 (N.C. 1975); Fulcher v. State, 633 P.2d 142 (Wyo. 1981); Polston v. State, 685 P.2d 1 (Wyo. 1984); State v. Fields, 376 S.E.2d 740 (N.C. 1989).

180                           In Chaulk, supra, and Daviault, supra, this Court recognized that although placing a balance of probabilities burden on the defence with respect to an element of the offence constitutes a limitation of an accused person’s rights under s. 11( d )  of the Charter , it can be justified under s. 1.  In my opinion, the burden is also justified in the present case.  The law presumes that people act voluntarily in order to avoid placing the onerous burden of proving voluntariness beyond a reasonable doubt on the Crown.  Like extreme drunkenness akin to automatism, genuine cases of automatism will be extremely rare.  However, because automatism is easily feigned and all knowledge of its occurrence rests with the accused, putting a legal burden on the accused to prove involuntariness on a balance of probabilities is necessary to further the objective behind the presumption of voluntariness.  In contrast, saddling the Crown with the legal burden of proving voluntariness beyond a reasonable doubt actually defeats the purpose of the presumption of voluntariness.  Thus, requiring that an accused bear the legal burden of proving involuntariness on a balance of probabilities is justified under s. 1.  There is therefore no violation of the Constitution.  On this latter point, I would note the words of Lamer C.J. in R. v. Swain, [1991] 1 S.C.R. 933, at pp. 996-97:

I also wish to point out that, throughout my reasons on this issue, I have been careful to speak of the old common law rule as limiting the s. 7  Charter  right and as violating the Constitution only after having reached the conclusion that the limitation is not justified under s. 1  of the Charter .  This choice of language is deliberate but does not depend on the fact that this case involves a Charter  challenge to a common law rule as opposed to a legislative provision.  Whether one is speaking of a legislative provision or a common law rule it is not, in my view, correct to speak of a law violating a particular provision of the Charter  (such as s. 7) prior to having gone through a s. 1 analysis.  The Charter guarantees the particular rights and freedoms set out in it subject to reasonable limits which can be, under s. 1, demonstrably justified in a free and democratic society.  Thus a law which limits a right set out in the Charter  will only violate the Constitution if it is not justified under s. 1.  In this instance, the law will either be struck down (to the extent of the inconsistency) under s. 52(1) or it will be reinterpreted so as not to violate the Constitution.  If a law which limits a right set out in the Charter  is justified under s. 1, that law does not violate the Constitution.

181                           One final point on the issue of justification.  My colleague Binnie J. distinguishes the s. 1 analysis in the present case from that in Daviault on the basis of the state of the law prior to a change established by this Court.  With respect, I cannot agree that the issue of whether the previous state of the law was more or less advantageous to the accused is relevant to the justification of subsequent law.  In both instances, the relevant matter is whether an existing infringement can be justified as a reasonable limit in a free and democratic society.  The relevant subject of the s. 1 analysis is therefore the current state of the law rather than the comparative nature of previous law.

182                           As explained above, what an accused must do to satisfy the evidentiary or proper foundation burden in cases involving claims of automatism is directly related to the nature of the legal burden in such cases.  Accordingly, a change to the evidentiary burden associated with automatism is in order.  To meet this 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.  In my opinion, this evidentiary burden is consistent with the two-step approach taken by La Forest J. in Parks, supra.  As noted above, the appropriateness of the evidentiary burden on the defence at the proper foundation stage was not directly at issue before this Court in Parks.  This explains why La Forest J. did not find it necessary to refine the burdens associated with automatism to the extent that it has been necessary for me to do in the present case.  What then is the nature of the evidence which will be required to satisfy this revised proper foundation or evidentiary burden?

183                           A review of the case law reveals that an accused must claim that he acted involuntarily at the relevant time in order to satisfy the automatism evidentiary burden.  As stated earlier, a mere assertion of involuntariness will not suffice.  See for example Bratty, supra, at pp. 406 and 413-14; Rabey (Ont. C.A.), supra, at pp. 24-25, per Martin J.A. adopted by Ritchie J.; Parks, supra, at p. 897, per La Forest J.; Falconer, supra, at pp. 250-51 and 266.

184                           In addition to an assertion of involuntariness, the defence must present expert psychiatric evidence confirming its claim.  See for example Bratty, supra, at p. 413; Falconer, supra, at pp. 250-57 and 266; Daviault, supra, at pp. 101 and 103; Rabey (S.C.C.), supra, at p. 552, per Dickson J.  Even the appellant in the present case concedes that in the absence of such psychiatric evidence it is unlikely that he could satisfy his evidentiary or proper foundation burden.

185                           The law often requires judges to make subtle and sophisticated determinations about scientific methodology and expert evidence.  Cases involving claims of automatism are no exception.  Yet as Breyer J. of the United States Supreme Court aptly recognized in General Electric Co. v. Joiner, 118 S.Ct. 512 (1997), judges are usually not scientists and thus do not have the scientific training which facilitates the making of such decisions.  For this reason, when law and science intersect, judges must undertake their duties with special care (p. 520).

186                           Although cases involving claims of automatism do not deal with complex chemical reactions or the like, they do require judges to assess confusing and often contradictory psychiatric evidence.  In particular, when determining whether the evidentiary burden for automatism has been satisfied, trial judges must be careful to recognize that the weight to be given to expert evidence may vary from case to case.  If the expert testimony establishes a documented history of automatistic-like dissociative states, it must be given more weight than if the expert is simply confirming that the claim of automatism is plausible.  In the former case, the expert is actually providing a medical opinion about the accused.  In the latter case, however, the expert is simply providing an opinion about the circumstances surrounding the allegation of automatism as they have been told to him or her by the accused.  Trial judges must keep in mind that an expert opinion of this latter type is entirely dependent on the accuracy and truthfulness of the account of events given to the expert by the accused.  Indeed, in the present case, Dr. Janke, the defence psychiatrist, qualified his opinion by noting that it was based almost exclusively on the accuracy and truthfulness of the appellant’s account of events:

I think that, that when, in offering the [expert psychiatric] opinion, it is, in this circumstance, it’s contingent upon the person being accurate in representing what they recall from that event.  There are circumstances where you do have other witnesses who can give you some supportive evidence, but in this situation, you have to rely on a person.  If they’re not telling the truth, then the opinion is worthless.

187                           In order to satisfy the evidentiary or proper foundation 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.  The recognition of Sopinka, Lederman and Bryant in The Law of Evidence in Canada, supra, at p. 129, that “[p]olicy considerations are important in determining the sufficiency of evidence that is required to satisfy [evidential burdens] in both criminal and civil proceedings” supports such an approach.  I will now attempt to provide some guidance on what additional evidence is relevant to the determination of whether the defence has raised evidence which would permit a properly instructed jury to find that the accused acted involuntarily on a balance of probabilities.  The factors discussed here are given only by way of example and are meant to illustrate the type of reasoning trial judges should employ when evaluating the evidence adduced at trial.

188                           Both the majority and dissent of this Court in Rabey, supra, recognized that a “shocking” psychological blow was required before non-mental disorder, rather than mental disorder, automatism could be left with the trier of fact.  Although Rabey dealt specifically with “psychological blow” automatism, I am of the opinion that it is appropriate in all cases for trial judges to consider the nature of the alleged automatism trigger in order to assess whether the defence has raised evidence on which a properly instructed jury could find that the accused acted involuntarily on a balance of probabilities.  With reference to psychological blow automatism specifically, I agree that the defence will generally have to provide evidence of a trigger equivalent to a “shock” in order to satisfy its evidentiary burden.

189                           The existence or non-existence of evidence which corroborates the accused’s claim of automatism will also be relevant to the assessment of whether a properly instructed jury could find that the accused acted involuntarily on a balance of probabilities.  Such evidence may take different forms.  Two examples are worth noting here.  First, evidence of a documented medical history of automatistic-like dissociative states would certainly assist the defence in satisfying a trial judge that a properly instructed jury could find that the accused acted involuntarily on a balance of probabilities.  Furthermore, the more similar the historical pattern of dissociation is with the current claim of automatism, the more persuasive the evidence will be on the issue of involuntariness.  For example, a documented history of dissociation in response to the particular triggering stimuli in question in the case could serve as strong evidence that the same stimuli once again triggered an involuntary response.  Although I would not go so far as to make a medical history of dissociation a requirement for the defence to meet its evidentiary burden at the proper foundation stage, I would note that the lack of such evidence is also a relevant factor in determining whether this defence burden has been satisfied.

190                           Corroborating evidence of a bystander which reveals that the accused appeared uncharacteristically glassy-eyed, unresponsive and or distant immediately before, during or after the alleged involuntary act will also be relevant to the assessment of whether the defence has raised evidence on which a properly instructed jury could find that the accused acted involuntarily on a balance of probabilities.  This is confirmed by the expert evidence of Dr. Murphy, the Crown psychiatrist in the present case, as set out above.  Indeed, the fact that it is common practice for judges to note specifically witness’ comments about the appearance of the accused at the relevant time indicates that this may already be a factor weighed in the assessment of whether or not the defence has satisfied its evidentiary burden in cases involving claims of automatism.  I would caution, however, that the evidence of bystanders must be approached very carefully since automatism and rage may often be indistinguishable to untrained bystanders.

191                           Another factor which trial judges should consider in assessing whether the defence has raised evidence which would permit a properly instructed jury to find that the accused acted involuntarily on a balance of probabilities is motive.  A motiveless act will generally lend plausibility to an accused’s claim of involuntariness.  Indeed, in the present case, Dr. Murphy, the Crown psychiatrist, testified that since the mind and body of a person in a dissociative state have been split, she would expect that there would usually be no connection between involuntary acts done in a state of automatism and the social context immediately preceding them.  Dr. Murphy also noted that if a single person is both the trigger of the alleged automatism and the victim of the automatistic violence, the claim of involuntariness should be considered suspect.  I agree that the plausibility of a claim of automatism will be reduced if the accused had a motive to commit the crime in question or if the “trigger” of the alleged automatism is also the victim.  On the other hand, if the involuntary act is random and lacks motive, the plausibility of the claim of automatism will be increased.  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 therefore whether or not the crime in question is explicable without reference to the alleged automatism.  If this question can be answered in the negative, the plausibility of the accused’s claim of involuntariness will be heightened.  Such was the case in Parks, supra, for example, where there was no explanation for why the accused would attack his “in-laws”, with whom he otherwise had a good relationship, except automatism induced by a state of somnambulism.  In contrast, if this question invokes a positive response, the plausibility of the claim of involuntariness will be decreased.

192                           To sum up, in order to satisfy the evidentiary or proper foundation burden in cases involving claims of automatism, the defence must make an assertion of involuntariness and call expert psychiatric or psychological evidence confirming that assertion.  However, it is an error of law to conclude that this defence burden has been satisfied simply because the defence has met these two requirements.  The burden will only be met where the trial judge concludes that there is evidence upon which a properly instructed jury could find that the accused acted involuntarily on a balance of probabilities.  In reaching this conclusion, the trial judge will first examine the psychiatric or psychological evidence and inquire into the foundation and nature of the expert opinion.  The trial judge will also examine all other available evidence, if any.  Relevant factors are not a closed category and may, by way of example, include:  the severity of the triggering stimulus, corroborating evidence of bystanders, corroborating medical history of automatistic-like dissociative states, whether there is evidence of a motive for the crime, and whether the alleged trigger of the automatism is also the victim of the automatistic violence.  I point out that no single factor is meant to be determinative.  Indeed, there may be cases in which the psychiatric or psychological evidence goes beyond simply corroborating the accused’s version of events, for example, where it establishes a documented history of automatistic-like dissociative states.  Furthermore, the ever advancing state of medical knowledge may lead to a finding that other types of evidence are also indicative of involuntariness.  I leave it to the discretion and experience of trial judges to weigh all of the evidence available on a case-by-case basis and to determine whether a properly instructed jury could find that the accused acted involuntarily on a balance of probabilities.

F.                                 Step 2:  Determining Whether to Leave Mental Disorder or Non-Mental Disorder  Automatism with the Trier of Fact

193                           Only if the accused has laid a proper foundation for a defence of automatism will it be necessary for the trial judge to determine whether mental disorder or non-mental disorder automatism should be left with the trier of fact.  If the trial judge concludes that a proper foundation has not been established, the presumption of voluntariness will be effective and neither automatism defence will be available to the trier of fact.  In such a case, however, the accused may still claim an independent s. 16 defence of mental disorder.

194                           The determination of whether mental disorder or non-mental disorder automatism should be left with the trier of fact must be undertaken very carefully since it will have serious ramifications for both the individual accused and society in general.  As mentioned above, mental disorder automatism is subsumed by the defence of mental disorder as set out in the Code.  Accordingly, a successful defence of mental disorder automatism will result in a verdict of not criminally responsible on account of mental disorder as dictated by s. 672.34 of the Code.  Under s. 672.54, an accused who receives this qualified acquittal may be discharged absolutely, discharged conditionally or detained in a hospital.  In contrast, a successful defence of non-mental disorder automatism will always result in an absolute acquittal.

195                           The assessment of which form of automatism should be left with the trier of fact comes down to the question of whether or not the condition alleged by the accused is a mental disorder.  Mental disorder is a legal term.  It is defined in s. 2 of the Code as “a disease of the mind”.  In Parks, supra, at pp. 898-99, the majority of this Court adopted the reasons of Martin J.A. in Rabey (Ont. C.A.), supra, which included the following explanation of the term “disease of the mind”, at pp. 12-13:

Although the term “disease of the mind” is not capable of precise definition, certain propositions may, I think, be asserted with respect to it.  “Disease of the mind” is a legal term, not a medical term of art; although a legal concept, it contains a substantial medical component as well as a legal or policy component.

                                                                      . . .

The evidence of medical witnesses with respect to the cause, nature and symptoms of the abnormal mental condition from which the accused is alleged to suffer, and how that condition is viewed and characterized from the medical point of view, is highly relevant to the judicial determination of whether such a condition is capable of constituting a “disease of the mind”.  The opinions of medical witnesses as to whether an abnormal mental state does or does not constitute a disease of the mind are not, however, determinative, since what is a disease of the mind is a legal question. . . .

196                           In Rabey (Ont. C.A.), Martin J.A. described the task of the trial judge in determining the disease of the mind issue as follows, at p. 13:

I take the true principle to be this:  It is for the Judge to determine what mental conditions are included within the term “disease of the mind”, and whether there is any evidence that the accused suffered from an abnormal mental condition comprehended by that term.

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

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

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

200                           In Rabey, this Court adopted the “internal cause theory” of Martin J.A. as the primary test for determining whether automatism resulting from a psychological blow stems from a disease of the mind.  The following is a portion of Martin J.A.’s explanation of this approach, which was cited with approval by the majority of this Court, at p. 519:

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.

201                           It is clear from Martin J.A.’s reasons that the internal cause theory starts from the proposition that the condition the accused claims to have suffered from is a disease of the mind.  At pp. 21-22, he states:

The malfunctioning of the mind which the respondent suffered, although temporary, is a “disease of the mind”, unless it can be considered as a transient state produced by an external cause within the meaning of the authorities.

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”.  [Emphasis added.]

202                           The reasons of La Forest J. in Parks, supra, are sometimes read as reversing the Rabey notion that the disease of the mind inquiry should begin from the proposition that the condition the accused claims to have suffered from is a disease of the mind.  However, La Forest J. clearly stipulated, at p. 898, that “the approach to distinguishing between insane and non-insane automatism was settled by this Court’s judgement in Rabey”.  Furthermore, in applying the second step of the automatism analysis, La Forest J. considered whether policy factors precluded a finding of non-mental disorder automatism (p. 908).  In the end, given the fact specific approach taken by this Court in Parks, I would conclude that Parks cannot be interpreted as reversing Rabey on this issue.

G.  Determining Whether the Condition the Accused Claims to Have Suffered from is a

      Disease of the Mind

203                           In Parks, La Forest J. recognized that there are two distinct approaches to the disease of the mind inquiry:  the internal cause theory and the continuing danger theory.  He recognized the internal cause theory as the dominant approach in Canadian jurisprudence but concluded, at p. 902, that this theory “is really meant to be used only as an analytical tool, and not as an all-encompassing methodology”.  This conclusion stemmed from a finding that somnambulism, the alleged trigger of the automatism in Parks, raises unique problems which are not well-suited to analysis under the internal cause theory.  I agree that the internal cause theory cannot be regarded as a universal classificatory scheme for “disease of the mind”.  There will be cases in which the approach is not helpful because, in the words of La Forest J., at p. 903, “the dichotomy between internal and external causes becomes blurred”.  Accordingly, a new approach to the disease of the mind inquiry is in order.  As I will explain below, a more holistic approach, like that developed by La Forest J. in Parks, must be available to trial judges in dealing with the disease of the mind question.  This approach must be informed by the internal cause theory, the continuing danger theory and the policy concerns raised in this Court’s decisions in Rabey and Parks.

(1)  The Internal Cause Theory

204                           The internal cause theory was developed in the context of psychological blow automatism.  Under the internal cause theory, the trial judge must compare the accused’s automatistic reaction to the psychological blow to the way one would expect a normal person in the same circumstances to react in order to determine whether the condition the accused claims to have suffered from is a disease of the mind.  As K. L. Campbell points out, at p. 354 of his article “Psychological Blow Automatism:  A Narrow Defence” (1980-81), 23 Crim. L.Q. 342, how can abnormality be defined in any other way but by comparison to what is normal.  The words of Martin J.A. in Rabey (Ont. C.A.), supra, adopted by the majority of this Court, at p. 520, highlight this comparative approach to the disease of the mind question:

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”.  . . .  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.

205                           The nature of the alleged trigger of the automatism is at the centre of the comparison the trial judge must undertake.  For example, in the context of psychological blow automatism, both the majority and dissent of this Court in Rabey recognized that a “shocking” psychological blow was required before non-mental disorder, rather than mental disorder, automatism could be left with the trier of fact.  To this end, the majority adopted the above-quoted words of Martin J.A.  In dissent, Dickson J. made the following comment, at p. 549:

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.

206                           Accordingly, in Rabey, this Court unanimously supported the notion that there is a comparative element to the disease of the mind inquiry which involves an assessment of the nature of the trigger of the alleged automatism.  In effect, the trial judge must consider the nature of the trigger and determine whether a normal person in the same circumstances  might have reacted to it by entering an automatistic state as the accused claims to have done.  Although I recognize that this approach will not be helpful in all cases, I believe that it remains useful in others.  As such, the internal cause approach is a factor for trial judges to consider in cases in which they deem it useful.  It may be helpful to provide some guidance as to how the comparison involved in the internal cause theory should be undertaken.  I will do so in the context of psychological blow automatism, as I believe the internal cause approach will be most useful in cases involving automatism claims of this nature.

207                           In his article, supra, Campbell points out that in assessing triggers of psychological blow automatism in Rabey, the majority of this Court drew the line between stressful situations and extremely shocking events.  Under this approach, a finding that an alleged condition is not a disease of the mind, and consequently can support a defence of non-mental disorder automatism, is limited to cases involving triggers that normal people would find extremely shocking.  Involuntariness caused by any less severe shock or mere stress is presumed to be triggered by a factor internal to the accused and as such constitutes a disease of the mind which can only give rise to a defence of mental disorder automatism (p. 357).  Dickson J., in dissent, drew the line between stressful situations and mildly shocking events.  Under this approach, the threshold requirement for a finding that a condition is not a disease of the mind is any shock, no matter what its severity.  Only events which cannot be classified as a shock of any degree are labelled as internal, and thus diseases of the mind which can only give rise to the defence of mental disorder automatism (p. 358).

208                           Given that the present case involves psychological blow automatism, I believe it is appropriate to express my opinion that the position of the majority in Rabey on this issue is preferable.  The point of undertaking the comparison is to determine whether a normal person might have reacted to the alleged trigger by entering an automatistic state as the accused claims to have done.  In cases involving claims of psychological blow automatism, evidence of an extremely shocking trigger will be required to establish that a normal person might have reacted to the trigger by entering an automatistic state, as the accused claims to have done.

209                           When undertaking a comparison with a normal person, one is immediately faced with the difficulty of determining the importance of the context in which the comparison is made.  I agree with the following comments of the High Court of Australia in Falconer, supra, on this issue (at p. 264):

In determining whether the mind of an ordinary person would have malfunctioned in the face of the physical or psychological trauma to which the accused was subjected, the psychotic, neurotic or emotional state of the accused at that time is immaterial.  The ordinary person is assumed to be a person of normal temperament and self-control.  Consequently, evidence that, in the week preceding the shooting, [the accused] had demonstrated fear, depression, emotional disturbance and an apparently changed personality would not have been relevant in determining the reaction of an ordinary person.  Likewise, evidence of the stress that she suffered on discovering that her husband had sexually assaulted their two daughters would not have been relevant in determining the reaction of the ordinary person to the incidents which took place on the day of the shooting.  But evidence of the objective circumstances of the relationship between the parties would have been relevant to that issue, for only by considering the pertinent circumstances of that relationship could the jury determine whether an ordinary person would have succumbed to a state of dissociation similar to that which [the accused] claims overtook her on that day.  Speaking generally, the issue for the jury on this aspect of the case would be whether an ordinary woman of [the accused]’s age and circumstances, who had been subjected to the history of violence which she alleged, who had recently discovered that her husband had sexually assaulted their daughters, who knew that criminal charges had been laid against her husband in respect of these matters and who was separated from her husband as a result of his relationship with another woman, would have entered a state of dissociation as the result of the incidents which occurred on the day of the shooting.

210                           The comparison involved in the disease of the mind inquiry is thus a contextual objective test.  The accused’s automatistic reaction to the alleged trigger must be assessed from the perspective of a similarly situated individual.  This requires that the circumstances of the case be taken into account.  However, I emphasize that this is not a subjective test.

211                           The appellant argues that the objective element of the internal cause theory violates ss. 7  and 11( d )  of the Charter .  According to the appellant, the Charter  requires that the focus of the disease of the mind inquiry be on the actual, subjective response of the accused rather than that of a normal person.  With respect, this argument fails to recognize that the objective inquiry into whether the condition claimed by the accused is a disease of the mind is applied only after a subjective inquiry into whether there is evidence upon which a properly instructed jury could find that the accused acted involuntarily on a balance of probabilities has been completed by the trial judge.  That is, the objective standard affects only the classification of the defence rather than the assessment of whether the actus reus of the offence has been established.  A similar objective standard was applied to the defence of provocation in R. v. Cameron (1992), 71 C.C.C. (3d) 272, where the Ontario Court of Appeal held that the objective standard involved in the defence of provocation does not violate ss. 7 and 11(d) because it does not detract from the mens rea required to establish murder.  The point I wish to make here is that the objective component of the internal cause theory does not affect the burden of proof on the issue of whether the accused voluntarily committed the offence.  Moreover, the impact of the objective comparison is limited even with regard to the disease of the mind inquiry.  As noted above, I agree with La Forest J. in Parks that the internal cause theory is only an analytical tool.  It is not being held out as the definitive answer to the disease of the mind question.  In each case, the trial judge must determine whether and to what extent the theory is useful given the facts of the case.  Indeed, he or she has the discretion to disregard the theory if its application would not accord with the policy concerns which underlie the disease of the mind inquiry.  In this way, the internal cause approach attempts to strike an appropriate balance between the objectives of providing an exemption from criminal liability for morally innocent offenders and protecting the public.  In these circumstances, the objective component of the internal cause theory does not limit either s. 7  or s. 11( d )  of the Charter .  I would add that consideration of the subjective psychological make-up of the accused in the internal cause theory would frustrate the very purpose of making the comparison, which is of course to determine whether the accused was suffering from a disease of the mind in a legal sense.

(2)  The Continuing Danger Theory

212                           As mentioned above, both the majority and dissenting judges of this Court in Rabey, as well as La Forest J. in Parks, recognized that policy considerations are relevant to the determination of whether a claim of automatism is the result of a disease of the mind.  One policy factor which is central to the disease of the mind inquiry is the need to ensure public safety.  Indeed, as mentioned above, La Forest J. recognized in Parks that the second dominant approach to the disease of the mind question is the continuing danger theory.  This theory holds that any condition which is likely to present a recurring danger to the public should be treated as a disease of the mind.  In other words, the likelihood of recurrence of violence is a factor to be considered in the disease of the mind inquiry.  This approach must be qualified to recognize that while a continuing danger suggests a disease of the mind, a finding of no continuing danger does not preclude a finding of a disease of the mind.  See Rabey, supra, at p. 15 (Ont. C.A.), per Martin J.A., and at pp. 533 and 551 (S.C.C.), per Dickson J.; Parks, supra, at p. 907, per La Forest J.

213                           In my opinion, trial judges should continue to consider the continuing danger theory as a factor in the determination of whether a condition should be classified as a disease of the mind.  However, I emphasize that the continuing danger factor should not be viewed as an alternative or mutually exclusive approach to the internal cause factor.  Although different, both of these approaches are relevant factors in the disease of the mind inquiry.  As such, in any given case, a trial judge may find one, the other or both of these approaches of assistance.  To reflect this unified, holistic approach to the disease of the mind question, it is therefore more appropriate to refer to the internal cause factor and the continuing danger factor, rather than the internal cause theory and the continuing danger theory.

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

215                           As noted above, the defence must present expert psychiatric evidence in order to establish a proper foundation for a defence of automatism.  The weight to be given to such evidence at the foundation stage will depend upon whether it establishes a documented history of automatistic-like dissociative states or simply confirms that a claim of automatism is plausible provided that the account of events given to the expert by the accused was accurate and truthful.  The same distinction is again relevant when assessing the continuing danger factor in order to determine whether the condition the accused claims to have suffered from is a disease of the mind.  Psychiatric evidence which reveals a documented history of automatistic-like dissociative states suggests that the condition alleged by the accused is of a recurring nature and thus increases the likelihood that automatism will recur.  The likelihood of recurrence of violence is in turn heightened by the fact that at least one of the accused’s automatistic episodes involved violence.  In such a case, the continuing danger factor indicates that the condition the accused claims to have suffered from is likely to be classified as a disease of the mind.  I would note that the absence of a history of automatistic-like dissociative states in no way indicates that there will be no recurrence of violence.  In such a case, the trial judge will have to determine the recurrence of violence issue through other methods, one of which may be an assessment of the likelihood of recurrence of the alleged trigger of the automatism.

216                           In their Case Comment on R. v. Parks (1993), 72 Can. Bar Rev. 224, I. Grant and L. Spitz point out that in assessing the likelihood of recurrence of violence, courts have been asking the wrong question.  Courts have been focussing on whether the accused is likely to exhibit violent behaviour if he or she were again to encounter the alleged trigger of the current automatistic episode.  According to Grant and Spitz, a more appropriate question is simply whether the alleged trigger is likely to recur.  Grant and Spitz reason that there is no way of accurately predicting whether actual violence will recur.  Indeed the likelihood of the initial automatistic violence would generally have been remote and thus difficult to predict.  In contrast, the likelihood of recurrence of the circumstances which are alleged to have given rise to the automatism is more easily predicted (see pp. 235-36).

217                           The logic of the reasoning of Grant and Spitz is difficult to deny.  Indeed, it reveals that an assessment of the likelihood that the particular accused will again encounter the trigger alleged to have caused the current automatistic episode, or a similar one of at least equal severity, may assist a judge in assessing the continuing danger factor.  The greater the anticipated frequency of the trigger in the accused’s life, the greater the risk posed to the public and, consequently, the more likely it is that the condition alleged by the accused is a disease of the mind.

(3)  Other Policy Factors

218                           There may be cases in which consideration of the internal cause and continuing danger factors alone does not permit a conclusive answer to the disease of the mind question.  Such will be the case, for example, where the internal cause factor is not helpful because it is impossible to classify the alleged cause of the automatism as internal or external, and the continuing danger factor is inconclusive because there is no continuing danger of violence.  Accordingly, a holistic approach to disease of the mind must also permit trial judges to consider other policy concerns which underlie this inquiry.  As mentioned above, in Rabey and Parks, this Court outlined some of the policy concerns which surround automatism.  I have already referred to those specific policy concerns earlier in these reasons.  I repeat that I do not view those policy concerns as a closed category.  In any given automatism case, a trial judge may identify a policy factor which this Court has not expressly recognized.  Any such valid policy concern can be considered by the trial judge in order to determine whether the condition the accused claims to have suffered from is a disease of the mind.  In determining this issue, policy concerns assist trial judges in answering the fundamental question of mixed law and fact which is at the centre of the disease of the mind inquiry:  whether society requires protection from the accused and, consequently, whether the accused should be subject to evaluation under the regime contained in Part XX.1 of the Code.

H.  Available Defences Following the Determination of the Disease of the Mind Question

219                           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 as the trial judge will have already found that there is evidence upon which a properly instructed jury could find that the accused acted involuntarily on a balance of probabilities.  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.  A positive answer to this question by the trier of fact will result in a successful defence of non-mental disorder automatism and, consequently, an absolute acquittal.

220                           I would note that in his instructions to the jury on the voluntariness issue in cases of non-mental disorder automatism, the trial judge should begin by thoroughly reviewing the serious policy factors which surround automatism, including concerns about feignability and the repute of the administration of justice.  It will also be helpful for the trial judge to refer specifically to evidence relevant to the issue of involuntariness, such as:  the severity of the triggering stimulus, corroborating evidence of bystanders, corroborating medical history of automatistic-like dissociative states, whether there is evidence of a motive for the crime, and whether the alleged trigger of the automatism is also the victim of the automatistic violence.

221                           On the other hand, if the trial judge concludes that the alleged condition is a disease of the mind, only mental disorder automatism will be left with the trier of fact.  The case will then proceed like any other s. 16 case, leaving for the trier of fact the question of whether the defence has proven, on a balance of probabilities, that the accused suffered from a mental disorder which rendered him or her incapable of appreciating the nature and quality of the act in question.  As mentioned earlier, s. 16 provides a framework within which the protection of the public will be assured when mental disorder automatism is established.

222                           The trier of fact’s determination of whether an accused has made out a successful claim of mental disorder automatism will absorb the question of whether the accused in fact acted involuntarily.  That is, if the trial judge concludes that the allegation of automatism, if genuine, could only have resulted from a disease of the mind, a finding that the accused was not suffering from a mental disorder by the trier of fact necessarily extinguishes the validity of the accused’s claim of involuntariness.  Viscount Kilmuir L.C. put it this way in Bratty, supra, at p. 403:

Where the possibility of an unconscious act depends on, and only on, the   existence of a defect of reason from disease of the mind within the                                                                M’Naughten Rules, a rejection by the jury of this defence of insanity     necessarily implies that they reject the possibility.

See also Bratty, supra, at pp. 404, 415 and 417-18; and Rabey (Ont. C.A.), supra, at pp. 24-25, per Martin J.A.

I.  Application to the Present Case

223                           At trial, the appellant claimed both mental disorder and non-mental disorder automatism.  The learned trial judge concluded that the appellant had established a proper foundation for a defence of automatism, but that only mental disorder automatism should be left with the jury.  In coming to these conclusions, the trial judge did not have the benefit of these reasons to guide him.  Nevertheless, this does not warrant allowing the appeal because, as I explain below, the approach taken by the trial judge did not impair the appellant’s position.

224                           In determining whether the appellant had established a proper foundation for a defence of automatism, the trial judge stated that there must be evidence of unconsciousness throughout the commission of the crime.  As I have explained above, automatism is more properly defined as impaired consciousness, rather than unconsciousness.  Furthermore, lack of voluntariness, rather than consciousness, is the key legal element of automatism.  Accordingly, the trial judge should have concerned himself with assessing whether there was evidence that the appellant experienced a state of impaired consciousness in which he had no voluntary control over his actions rather than whether there was evidence that the appellant was unconscious throughout the commission of the crime.  Obviously, unconsciousness as defined by the trial judge supposes involuntariness.  However, his finding that there was evidence of unconsciousness throughout the commission of the crime may have been based on a misunderstanding of the nature of the evidentiary burden on the accused at the proper foundation stage.

225                           In accordance with much of the jurisprudence at the time, the trial judge may have found that a proper foundation for automatism had been established because the defence had met an evidentiary burden which amounted to no more than the appellant’s claim of involuntariness and confirming expert psychiatric evidence.  There is no indication that he assessed whether the defence had raised evidence on which a properly instructed jury could find that the appellant acted involuntarily on a balance of probabilities.  Likewise, there is no indication that the trial judge recognized the limited weight to be accorded to the psychiatric evidence in this case, which only served to confirm that the appellant’s claim of automatism was plausible provided the account of events he provided to Dr. Janke was accurate and truthful.  Nor did the trial judge discuss the relevance of motive or corroborating evidence on his conclusion that a proper foundation for automatism had been established.

226                           Turning to the disease of the mind stage of the automatism analysis, I note that the evidence in this case raised only one alleged cause of automatism, Donna Stone’s words.  Based on this evidence, the trial judge found that only mental disorder automatism should be left with the jury.  This conclusion was based primarily on a finding that the present case is indistinguishable from MacLeod, supra.  Such reliance on precedent fails to reveal what effect, if any, the internal cause factor, the continuing danger factor and other policy factors had on the decision to leave only mental disorder automatism with the jury.  This is not in accordance with the holistic approach to the disease of the mind question set out in these reasons.  However, the internal cause factor and the continuing danger factor, as well as the other policy factors set out in this Court’s decisions in Rabey and Parks all support the trial judge’s finding that the condition the appellant alleges to have suffered from is a disease of the mind in the legal sense.  In particular, the trigger in this case was not, in the words of Martin J.A. quoted in this Court’s decision in Rabey, at p. 520, “extraordinary external events” that would amount to an extreme shock or psychological blow that would cause a normal person, in the circumstances of the accused, to suffer a dissociation in the absence of a disease of the mind.  Accordingly, I find that the trial judge nevertheless reached the correct result on the disease of the mind question.  As previously noted, in such a case, only mental disorder automatism must be put to the jury.  There is no reason to go beyond the facts of this case in applying the rules discussed above.

227                           In the end, I must conclude that no substantial wrong or miscarriage of justice occurred in the present case.  Even if I had found that the trial judge erred in applying the evidentiary burden at the proper foundation stage of the automatism analysis, this error could only have benefitted the appellant.  Although the trial judge did not apply the holistic approach to disease of the mind established in these reasons, he reached the correct result on this issue.  There is no reasonable possibility that the verdict would have been different had the errors not been made; see R. v. Bevan, [1993] 2 S.C.R. 599.  I would therefore dismiss this ground of appeal.

2.    Did the Court of Appeal err in holding that there was no miscarriage of justice when the defence report of Dr. Janke was ordered disclosed to the Crown?

228                           I concur with the reasons of Binnie J. on this ground of appeal.

3.    (a)       Did the Court of Appeal err in principle in deciding that the sentencing judge was entitled to consider provocation as a mitigating factor for manslaughter where the same provocation, through the operation of s. 232 of the Code had already reduced the stigma and penalty of an intentional killing from murder to manslaughter?

(b)       Did the Court of Appeal err in upholding a demonstrably unfit sentence that failed to reflect the gravity of the offence properly and the moral culpability of the offender?

J.  Standard of Appellate Review of Sentencing

229                           The Crown’s appeal of the seven-year sentence imposed by the sentencing judge in the present case must be considered in light of this Court’s jurisprudence surrounding the appropriate standard of appellate review of sentencing.  Section 687(1) of the Code provides a statutory right of appeal of sentence.  It reads:

687.  (1)  Where an appeal is taken against sentence, the court of appeal shall, unless the sentence is one fixed by law, consider the fitness of the sentence appealed against, and may on such evidence, if any, as it thinks fit to require or to receive,

(a)  vary the sentence within the limits prescribed by law for the offence of which the accused was convicted; or

(b)  dismiss the appeal.

230                           In Shropshire, supra, this Court considered the standard of appellate review authorized by s. 687(1).  Speaking for a unanimous Court, Iacobucci J. concluded, at pp. 249-50, that appellate courts do not have free reign to modify sentence orders simply because they would themselves have imposed a different sentence.  Rather, variation of sentence should only be made if an appellate court is convinced that a sentence is “not fit” or “clearly unreasonable” (p. 249).  This deferential standard of appellate review must be adhered to as long as the trial judge did not err in principle, fail to consider a relevant factor or overemphasize the appropriate factors.  In M. (C.A.), supra, Lamer C.J., also speaking for the Court, confirmed this deferential standard of appellate review of sentences and noted at p. 567:

For these reasons, consistent with the general standard of review we articulated in Shropshire, I believe that a court of appeal should only intervene to minimize the disparity of sentences where the sentence imposed by the trial judge is in substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes.  [Emphasis added.]

See also R. v. McDonnell, [1997] 1 S.C.R. 948, at paras. 15-17.

231                           With this standard of appellate review of sentencing in mind, I will now assess the Crown’s arguments against the seven-year sentence imposed by the sentencing judge in the present case.

K.  Error in Principle

(1)  Provocation as a Mitigating Factor for Manslaughter

232                           The Crown and intervening Attorney General for Ontario argue that the sentencing judge erred in principle when he considered provocation as a mitigating factor after s. 232 of the Code had reduced a verdict of murder to one of manslaughter.  For ease of reference, I reproduce s. 232 here:

232.  (1)  Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation.

(2)  A wrongful act or an insult that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section if the accused acted on it on the sudden and before there was time for his passion to cool.

(3)  For the purposes of this section, the questions

(a)  whether a particular wrongful act or insult amounted to provocation, and

(b)  whether the accused was deprived of the power of self-control by the provocation that he alleges he received,

are questions of fact, but no one shall be deemed to have given provocation to another by doing anything that he had a legal right to do, or by doing anything that the accused incited him to do in order to provide the accused with an excuse for causing death or bodily harm to any human being.

(4)  Culpable homicide that otherwise would be murder is not necessarily manslaughter by reason only that it was committed by a person who was being arrested illegally, but the fact that the illegality of the arrest was known to the accused may be evidence of provocation for the purpose of this section.

233                           As explained by Fraser C.J. in R. v. Laberge (1995), 165 A.R. 375 (C.A.), even for impulsive killings, there are different degrees of moral culpability.  This Court has recognized that the broad sentencing range for manslaughter set out in s. 236 of the Code accords with the principle that punishment must be meted out with regard to the moral culpability or blameworthiness of an offender; see R. v. Martineau, [1990] 2 S.C.R. 633, at p. 647, per Lamer C.J., and R. v. Creighton, [1993] 3 S.C.R. 3, at pp. 48-49, per McLachlin J.

234                           In reaching a sentence which accurately reflects a particular offender’s moral culpability, the sentencing judge must consider all of the circumstances of the offence, including whether it involved provocation.  Indeed, I agree with Finch J.A. in the court below, that to ignore the defence of provocation accepted by the jury, and the evidence upon which that defence was based, would be to ignore probative evidence of an offender’s mental state at the time of the killing.

235                           In a case involving manslaughter pursuant to s. 232 of the Code, however, the Crown and Attorney General for Ontario argue that provocation should not be considered in sentencing because it has already reduced the legal character of the crime from murder to manslaughter.  According to this argument, considering provocation at the sentencing stage in such a case would reduce the offender’s moral culpability and thereby reduce his or her sentence.  This would, it is argued, give the offender a “double benefit” for the provoked nature of the killing.  The Crown relies primarily on Manitoba cases in which that province’s Court of Appeal refused to consider intoxication and provocation as mitigating factors when those factors had already served to reduce convictions of murder to manslaughter; see, for example, R. v. Campbell (1991), 70 Man. R. (2d) 158 (C.A.), and R. v. Woermann (1992), 81 Man. R. (2d) 255 (C.A.).

236                           The defence of provocation applies only to the offence of murder.  Historically, this limited defence was meant to guard against the unfair application of the death penalty.  Even though the death penalty is no longer used as a punishment for murder, there is continued need for the limited defence of provocation.  Because both first and second degree murder carry a minimum sentence of life imprisonment under s. 235 of the Code, judges have no discretion to consider provocation as a mitigating factor in determining appropriate sentences for these offences.  Section 232 remedies this problem.  In cases involving provocation, s. 232 permits a verdict of murder to be reduced to one of manslaughter, for which there is no minimum penalty unless a firearm was used in the commission of the offence (s. 236).  This in turn allows for the consideration of provocation in the assessment of the offender’s moral culpability and hence in the determination of an appropriate sentence.  It is Parliament that has chosen to accord special attention to provocation.

237                           It follows that an accused does not gain a “double benefit” if provocation is considered in sentencing after a verdict of manslaughter has been rendered by operation of s. 232.  Rather, s. 232 provides an accused with a single benefit which can be characterized as a reduction of a verdict of murder to one of manslaughter in order to allow for the consideration of the provoked nature of the killing in the determination of an appropriate sentence.  Accordingly, to give s. 232 full effect, provocation must be considered in sentencing in cases where this section of the Code has been invoked.  The sentencing judge was therefore correct in considering provocation as a mitigating factor in the present case.  The argument that the provocation factor was spent because it had already served to reduce the legal character of the crime overlooks the purpose of s. 232 and therefore must fail.

(2)  Failure to Consider Appropriate Factors

238                           The Crown and Attorneys General of Canada and for Ontario argue that the seven-year sentence imposed by the trial judge in the present case fails to reflect society’s current understanding and awareness of the problem of violence against women in general, and, in particular, domestic violence.  More specifically, they argue that the sentencing judge erred in failing to recognize that killing a spouse is considered an aggravating factor in sentencing in accordance with s. 718.2(a)(ii) of the Code.  Section 718.2(a)(ii) reads:

718.2  A court that imposes a sentence shall also take into consideration the following principles:

(a)  a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

                                                                      . . .

(ii)  evidence that the offender, in committing the offence, abused the offender’s spouse or child . . .

shall be deemed to be aggravating circumstances . . .  .

The Attorneys General of Canada and for Ontario request that this Court specifically recognize spousal killings as an aggravating factor in sentencing under s. 718.2(a)(ii).

239                           It is incumbent on the judiciary to bring the law into harmony with prevailing social values.  This is also true with regard to sentencing.  To this end, in M. (C.A.), supra, Lamer C.J. stated, at para. 81:

The objective of denunciation mandates that a sentence should also communicate society’s condemnation of that particular offender’s conduct.  In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender’s conduct should be punished for encroaching on our society’s basic code of values as enshrined within our substantive criminal law.  . . .  Our criminal law is also a system of values. A sentence which expresses denunciation is simply the means by which these values are communicated.  In short, in addition to attaching negative consequences to undesirable behaviour, judicial sentences should also be imposed in a manner which positively instills the basic set of communal values shared by all Canadians as expressed by the Criminal Code .  [Emphasis in original.]

This Court’s jurisprudence also indicates that the law must evolve to reflect changing social values regarding the status between men and women; see Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219; R. v. Lavallee, [1990] 1 S.C.R. 852; R. v. Seaboyer, [1991] 2 S.C.R. 577.

240                           In Weatherall v. Canada (Attorney General), [1993] 2 S.C.R. 872, this Court recognized the “historical trend of violence perpetrated by men against women” (p. 877).  More specifically, in Lavallee, supra, at p. 872, the growing social awareness of the problem of domestic violence was recognized by this Court.  In my opinion, these cases indicate that prevailing social values mandate that the moral responsibility of offenders be assessed in the context of equality between men and women in general, and spouses in particular.  Clearly, spousal killings involve the breach of a socially recognized and valued trust and must be recognized as a serious aggravating factor under s. 718.2(a)(ii).

241                           Turning to the present case, I would note that s. 718.2(a)(ii) of the Code did not come into force until September 3, 1996, approximately nine months after sentencing occurred in this case.  Given that the Code cannot be retroactively applied to the disadvantage of an accused, the sentencing judge’s treatment of the spousal nature of the killing must be assessed in light of the common law treatment of this factor prior to the implementation of s. 718.2(a)(ii).  In my opinion, there is ample authority for the proposition that courts considered a spousal connection between offender and victim to be an aggravating factor in sentencing at common law; see R. v. Doyle (1991), 108 N.S.R. (2d) 1 (C.A.); R. v. Brown (1992), 13 C.R. (4th) 346 (Alta. C.A.); R. v. Pitkeathly (1994), 29 C.R. (4th) 182 (Ont. C.A.); R. v. Jackson (1996), 106 C.C.C. (3d) 557 (Alta. C.A.); R. v. Edwards (1996), 28 O.R. (3d) 54 (C.A.).

242                           In the present case, the sentencing judge, Brenner J., had the benefit of also presiding over the trial of this matter.  He could hardly have been unaware of the spousal relationship between the offender and the victim in this case.  Furthermore, he heard the Crown’s submissions on sentence, which specifically identified this offence as one of domestic violence.  In its submissions, the Crown brought the alarming rate of domestic violence and need for general deterrence to the judge’s attention.  It also pointed out that women are particularly susceptible to being victims of domestic violence and that social concern surrounding this type of offence is growing.  In his reasons for sentence, Brenner J. specifically identified the offence as one of domestic violence and noted that he viewed general deterrence as the principle concern in this sentencing.  Furthermore, the two authorities he found most applicable, Archibald, supra, and Eklund, supra, both involved spousal manslaughter.  In my opinion, the Crown has failed to establish that the sentencing judge did not properly consider the domestic nature of this offence in reaching his decision on sentence.  This ground of appeal must therefore fail.

(3)  Fitness of the Sentence

(a)  Sentencing Range for Provoked, Spousal Manslaughter

243                           The Crown and the intervening Attorneys General of Canada and for Ontario argue that the sentence in the present case is unfit because the trial judge relied on an inappropriate sentencing range established by the British Columbia Court of Appeal for provoked, spousal manslaughter in Archibald.  In Archibald, McEachern C.J. stated, at p. 304:

For this kind of manslaughter, the cases we have been given, and my own experience as a sentencing judge, persuade me the modern range is from suspended sentence to something less than eight years, although it is wrong to assume there is any precise range that will apply to every case.

244                           One function of appellate courts is to minimize disparity of sentences in cases involving similar offences and similar offenders; see M. (C.A.), supra, at para. 92, and McDonnell, supra, at para. 16, per Sopinka J.  In carrying out this function, appellate courts may fix ranges for particular categories of offences as guidelines for lower courts.  However, in attempting to achieve uniformity, appellate courts must not interfere with sentencing judges’ duty to consider all relevant circumstances in sentencing; see McDonnell, supra, at para. 43, per Sopinka J.; and at para. 66, per McLachlin J.  In Archibald, McEachern C.J. clearly stated, at p. 304, that it would be wrong to assume that there is any “precise range that will apply to every case”.  In my opinion, this qualification reveals that the Court of Appeal in Archibald correctly intended for trial judges to balance uniformity in sentencing with their duty to consider the circumstances of the particular case.

245                           This Court’s decision in McDonnell, supra, highlights the need for clarity on the part of appellate courts in setting ranges for offences.  More specifically, McLachlin J., in dissent, stated that appellate courts must clearly specify what categories of offences are meant to be covered by a starting point (para. 104).  Although the majority, per Sopinka J., did not expressly identify this need for clarity in the classification of offences, it did agree that appellate courts may set starting points as guides for lower courts.  In my opinion, a clarity requirement must be read into this appellate court authority because such guides would not be useful without a clear description of the category created and the logic behind the starting point appropriate to it.  The same need for clear direction applies to ranges set by appellate courts.  However, in Archibald, McEachern C.J. simply refers, at p. 304, to “this kind of manslaughter”.  Furthermore, the “kind” of manslaughter McEachern C.J. was referring to is not discernable from the facts of the case.  Both provocation and intoxication were left with the jury in Archibald.  The jury returned a verdict of manslaughter, but did not specify which of these factors had influenced its verdict.  As a result, the category of offences McEachern C.J. intended the above-mentioned range to apply to is unclear.  Indeed, McEachern C.J. specifically noted in his reasons that the trial judge, without making a specific finding, expressed the view that the stronger likelihood was that the jury acted on drunkenness rather than provocation (p. 303).  Accordingly, it cannot be said with any certainty that the range set out in Archibald is applicable to cases involving provoked, spousal manslaughter like the present appeal.  It is therefore unnecessary to assess the reasonableness of that sentencing range in this case.

246                           There being no applicable range set by the Court of Appeal, it is necessary to determine whether the sentence was influenced negatively by factors unrelated to recognized sentencing principles and whether all of the appropriate factors were considered.  In this case, I must however first consider the argument of the Crown and the Attorney General for Ontario that “double counting” of provocation is responsible for driving sentencing ranges for cases involving provoked, spousal manslaughter into the lower end of the spectrum available for manslaughter, and that this resulted in an inadequate sentence.

247                           The argument that “double counting” of provocation is responsible for the sentencing range in cases involving provoked, spousal manslaughter fails to recognize that provocation is just one factor to be considered in assessing what end of the manslaughter sentencing range is approached in the circumstances of a particular case.  Personal characteristics of the offender, as well as other circumstances surrounding the offence, such as the manner and method by which it was carried out, must also be considered.  The words of Fraser C.J. in Laberge, supra, at p. 382, are apposite:

Therefore, the court must look not only at the physical characterization of the act itself, but must assess a range of other considerations.  These include the choice of weapon used to effect the unlawful act, the degree of force the offender used in perpetrating the act, the extent of the victim’s injuries, the degree of violence or brutality, the existence of any additional gratuitous violence, the degree of deliberation involved in the act, the extent to which the act reflected forethought of action or planning, the complexity of the act, what, if anything, provoked the act, the time taken to perpetrate the act and the element of chance involved in the resulting death.

248                           It is clear that provocation is merely one of numerous factors which will be considered in the assessment of an appropriate sentence for manslaughter pursuant to s. 232.  It therefore cannot be said that cases involving provocation will always involve findings of insignificant moral culpability or that low range sentences can be attributed solely to the provocation factor.

(b)  Inadequate Sentence

249                           The Crown’s final argument is that the seven-year sentence imposed in the present case is simply inadequate and therefore clearly unreasonable.  The Crown points to a number of aggravating factors in support of this ground of appeal.  It also argues that the sentencing judge made unreasonable findings of fact.  While I may have been inclined to impose a slightly more onerous sentence given the nature of the offence committed, this is not a valid reason for this Court to interfere with the sentence.  In my opinion, the Crown has failed to discharge its burden to demonstrate that the sentencing judge’s assessment of the facts in this case and the relevant authorities was clearly unreasonable.  This ground of appeal must therefore fail.

VII.  Conclusions and Disposition

250                           In the first appeal, I have concluded that no substantial wrong or miscarriage of justice occurred.  I would therefore affirm the conviction and dismiss the appeal.

251                           In the second appeal, I agree with the Court of Appeal that the sentencing judge was aware of the aggravating and mitigating factors in this case and considered the relevant sentencing principles in reaching the sentence he imposed.  Consequently, I would dismiss the Crown’s sentence appeal and affirm the sentence imposed by the sentencing judge.

Appeal from conviction dismissed, Lamer C.J. and Iacobucci, Major and Binnie JJ. dissenting.  Appeal against sentence dismissed.

Solicitors for Bert Thomas Stone:  Singleton Urquhart Scott, Vancouver.

Solicitor for Her Majesty the Queen:  Gil D. McKinnon, Vancouver.

Solicitor for the intervener the Attorney General of Canada:  The Deputy Attorney General of Canada, Ottawa.

Solicitor for the intervener the Attorney General for Ontario:  The Attorney General for Ontario, Toronto.

Solicitor for the intervener the Attorney General for Alberta:  The Attorney General for Alberta, Edmonton.