The Sleepwalking Drunk Driver

In R. v. Desrosiers, 2017 ONCJ 299 (CanLII), the Ontario Court of Justice held that it was more probable than not that the accused was in a state of automatism (due to sleepwalking or parasomnia) when she operated her motor vehicle with a blood-alcohol concentration three times above the legal limit (267 and 288 mg. of alcohol in 100 ml., respectively). The resulting verdict: Not Criminally Responsible.

It is curious, at least to me, that the Court appears to have placed marginal importance on the accused’s evidence that one of the last things she remembered before waking up in a police holding cell was ingesting the sedative-hypnotic Zopiclone. 

The defence of automatism

The leading case dealing with the defence of automatism is the decision of the Supreme Court of Canada in R v Stone. The principles to be derived from that decision can be summarized as follows:

·         Automatism is defined as “a state of impaired consciousness, rather than a state of unconsciousness, in which an individual, though capable of action, has no voluntary control over that action”: R v Stone, at para. 155.

·         In cases involving claims of automatism the burden is on the defence to prove involuntariness on a balance of probabilities: Stone, at para. 179.

·         Initially the defence carries the burden of establishing a proper foundation for the defence of automatism by asserting the claim of involuntariness and providing the court with psychiatric or psychological evidence that the assertion is plausible assuming that a factual scenario advanced by the accused that identifies some evidence from which a jury could reasonably infer that the accused acted in a state of automatism: Stone, at para. 168 and 187.

·         With respect to the weight to be attached to expert opinion on this issue the court notes: “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.” Whether there is a documented history of prior episodes or not the trier of fact should be mindful that the value of the opinion is very much dependant on the accuracy and reliability of the account of the events provided by witnesses including the accused: Stone, at  para. 179.

·         Evidence of a documented history of automatistic-like dissociative states will assist the defence in satisfying the initial burden. The more similar the pattern of dissociation is with the current claim the more persuasive the evidence will be on the question of involuntariness: Stone, at para. 189.

·         Corroborating evidence of a bystander which reveals that the accused appeared uncharacteristically glassy eyed, unresponsive or distant immediately before, during or after the alleged involuntary act will be relevant to the assessment: Stone, at para. 190.

·         A motiveless act will generally lend plausibility to the accused’s claim of involuntariness and conversely a motive to commit the crime will reduce plausibility. The court should examine whether or not the crime in question is explicable without reference to the alleged automatism: Stone, at para. 191.

·        If the defence satisfies the initial burden of demonstrating on a balance of probabilities that the defence is plausible the issue may be left to the jury. It is then up to the jury to determine if, as trier of fact, it is satisfied that based on the evidence that it accepts the defence is established on a balance of probabilities. In the context of a judge alone trial the presiding judge performs both functions.

·         If the trier of fact is satisfied that automatism is proven then the further step of determining if the automatism established is mental disorder automatism as opposed to non-mental disorder automatism.

Non-mental disorder v. mental disorder automatism

 The leading appellate authority dealing with the question of the determination of non-mental disorder versus mental disorder automatism is the decision of Justice Doherty of the Ontario Court of Appeal in R. v. Luedeke, [2008] ONCA 716.

The legal principles to be derived from that decision may be summarized as follows:

·         The distinction between non-mental disorder automatism and mental disorder automatism depends on whether the automatistic state is the product of a “mental disorder”. That term is defined in section 2 of the Criminal Code as a “disease of the mind”. That phrase describes a legal and not a medical concept: Luedecke, at para. 60.

·         Canadian courts have adopted a very broad definition of what will constitute a mental disorder: Ibid, para. 62.

·         The fundamental question of mixed law and fact which is at the centre of the disease of the mind inquiry is whether society requires protection from the accused and the risk of recurrence is central to that inquiry: Ibid, para. 85 and 86.

·         The trial judge begins from the premise that the automatism is caused by a disease of the mind and looks to the evidence to determine whether it convinces him that the condition is not a disease of the mind: Ibid, para. 90.

·         In evaluating the risk of repetition and hence the danger to the public, trial judges must not limit their inquiry only to the risk of further violence (in this case, driving while impaired) while in an automatistic state. The trial judge must examine the risk of recurrence of the factors or events that triggered the accused’s automatistic state: Ibid, para. 91.

·         At the pre-verdict state, social defence concerns dominate. Those concerns focus on the risk posted by the potential recurrence of the conduct in issue: Ibid, para. 100.

·         A genetic predisposition is the epitome of an internal cause which increases the risk of recurrence: Ibid, para. 106.

·          The Stone decision directs the trial judge to look to the likelihood of recurrence of the triggering events and not just the likelihood of the recurrence of the criminal acts in issue (here, driving while impaired) while in an automatistic state: Ibid, para. 111.

Applying the law to the facts at bar, the Court in R. v. Desrosiers found that the presumption of mental disorder automatism had not been overcome.



Stuart O'Connell, O'Connell Law Group (leadersinlaw.ca)