My Criminal Law class required us to prepare a 1000 word essay in advance to be submitted with our final exam. Below is my submission. I would've liked to expand a great deal on the content of the final paragraph, but the word count restriction was strict and I had to squeeze in points on several cases.
The defence of automatism strikes the right balance between important societal interests (including, for example, public safety, equality, etc.) and the need to treat individuals fairly and in accordance with established principles of criminal responsibility.
I agree with the above statement.
Justice Dickson (as he then was) identified four problems that pertain to public safety for non-mental disorder automatism in Rabey v. R.:
- Automatism is easily feigned;
- The credibility of the 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 success of the defence may depend upon the semantic ability of psychiatrists; and
- It may open the floodgates.[1]
In spite of this, the concern for public safety in finding a person guilty who suffers from a condition that is “transient rather than persistent, unlikely to recur, not in need of treatment and not the result of self-induced intoxication” is not served because “such a person is not a danger to himself or to society generally.”
[2]Justice Dickson advocated the “continuing danger” theory which considers an automatistic condition a disease of the mind and therefore mental disorder automatism when the automatistic state is likely to recur.
This is contrasted with “internal cause” theory, which stipulates that an automatistic condition is a disease of the mind when it is the result of the “psychological or emotional makeup of the accused, rather than some external factor.”
[3] According to Chief Justice Lamer, the foundation for both the internal cause and continuing danger theories is a “concern for public safety.”
[4]The “internal cause” theory won the day in Rabey,
[5] however, the “continuing danger” theory was held to be relevant in the disease of the mind analysis in R. v. Parks and R. v. Stone.
[6] In Stone, Justice Bastarache included an open-ended policy component to be used in determining what type of automatism defence to put to the jury.
[7]To avoid the deleterious effects of the automatism defence noted by Justice Dickson, the court in Stone endorsed the imposition of a burden “on the defence to prove involuntariness on a balance of probabilities to the trier of fact.”
[8] These measures were subsequently refined by Justice Fish in R. v. Fontaine to ensure that the Judge did not assume the duties of the jury. With respect to whether an automatism defence ought to go to the jury, the Judge’s role was confined to the application of the air of reality test in that case.
[9]The evidential (or “air of reality”) and persuasive burden on the defence resolves the issue of feigned automatism. The credibility of the judicial system and the floodgates concern are derivatives of the issue of feigning, thus the burden on the defence addresses these issues as well. When there is a burden to show that there is some evidence of automatism so that the defence can go to the jury, and then the further burden of persuading the jury, automatism is not so easy to feign.
In Stone the court identified some relevant issues that the trier of fact may include in the consideration of the defence’s attempt to discharge their persuasive burden:
[T]he 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.[10]
The relevant factors are not confined to those listed in Stone, and resolve the concern that the success of the automatism defence will turn on the semantic ability of psychiatric experts.
Justice Bastarache noted in Stone that “it will only be in rare cases that automatism is not caused by mental disorder,” and that therefore the judicial system will adhere 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.”
[11] Thus, if the accused wishes to obtain full acquittal, he or she must present some evidence that the automatism was not the result of a mental disorder.
In Parks the clash between the concern for public safety and the principles of criminal responsibility and fairness became starkly apparent because the automatism of the accused was the consequence of somnambulism, a condition that can technically fit into the “internal cause” category and may very well recur (although Justice LaForest took pains to liken the state of sleep in conjunction with “ordinary stresses” to an external cause like a concussion).
[12] The elements of a hazard to public safety seem present. However, a sleep-walker is unconscious, and volition is a conscious act. “It is a fundamental principle of criminal law that only voluntary actions will attract findings of guilt.”
[13] This principle is well-established in both jurisprudence and the ethical theory that informs it. The sixth of Lon Fuller’s eight legal maxims states that laws should not require conduct beyond the powers of the individual.
[14] H.L.A. Hart has said that the law “is a choosing system.”
[15] Justice McLachlin (as she then was) has asserted that “capacity for choice is a fundamental prerequisite to attribution of criminal responsibility and punishment.”
[16]In Parks the established principles of criminal responsibility resulted in a full acquittal despite the public safety concerns, but the tension between the two is the strongest challenge to my position, and it was the basis of Chief Justice Lamer’s assertion that a common-law peace bond ought to be considered for the accused in Parks.
[17] This course of action was rejected for constitutional and practical reasons.
The advantageous function of the law is the coordination of the persons it governs as they seek their permissible ends. Concern for public safety derives its force from the degree to which it advances this function of the law; it is not an end in and of itself. Owing to its contingent value, extraneous factors may impinge upon the normative force of this societal interest. Impracticability and unconstitutionality are relevant extraneous factors that reduce the coordinating value of the peace bond solution to such a degree that it becomes irrational to adopt it, notwithstanding concerns for public safety.
[1] Rabey v. R., [1980] 2 S.C.R. 513, [Rabey]
[2] Ibid., (SDC 765, 766)
[3] R. v. Parks, [1992] 2 S.C.R. 871, (SDC 777) [Parks].
[4] Ibid., (SDC 777).
[5] Rabey, (SDC 761)
[6] Parks, (SDC 779); R. v. Stone, [1999] 2 S.C.R. 290 (SDC 793) [Stone].
[7] Stone, (SDC 794).
[8] Ibid., (SDC 791).
[9] R. v. Fontaine, [2004] 1 S.C.R. 702, para. 92 [Fontaine]
[10] Stone, (SDC 791).
[11] Ibid., (SDC 793).
[12] Parks, (SDC 778).
[13] Stone, (SDC 790).
[14] Lon Fuller, The Morality of Law (New Haven: Yale University Press, 1964) 39.
[15] Martin P. Golding, “Responsibility” in Martin P. Golding & William A. Edmundson eds., The Blackwell Guide to the Philosophy of Law and Legal Theory (Oxford: Blackwell Publishing Ltd., 2005), 234.
[16] R. v. Chaulk, [1990] 3 S.C.R. 1303, 1400.
[17] Parks, (SDC 782)
