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Criminal - Automatism. R. v. Bhogal
In R. v. Bhogal (Ont CA, 2025) the Ontario Court of Appeal dismissed a criminal appeal, here from a jury conviction for first degree murder.
The court considers the 'air of reality' required to send an issue to the jury, here the defence of 'extreme intoxication' which has been held akin to automatism:[57] Trial judges are required to instruct juries on all defences that have an “air of reality”. A defence will have an air of reality when there is “evidence upon which a reasonable trier of fact, properly instructed in law and acting judicially, could conclude that the defence succeeds”: R. v. Fontaine, 2004 SCC 27, [2004] 1 S.C.R. 702, at paras. 57, 70. For most defences, where the Crown bears the onus of disproving the defence on the criminal standard of proof, the defence will succeed if the Crown cannot disprove at least one of its essential elements beyond a reasonable doubt. However, for reverse onus defences, including the defence of extreme intoxication akin to automatism, the defence will only succeed if the accused affirmatively establishes the defence’s essential elements on a balance of probabilities.
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[60] .... While some people who experience drug-induced psychosis may become so impaired that their actions can no longer be seen as volitional, not everyone who experiences psychotic symptoms – that is, delusions, hallucinations, or disordered thinking – will be affected so severely. The question of whether drug-induced psychotic symptoms caused a particular accused to enter an impaired mental state akin to automatism will depend on the circumstances and the evidence in that case. For instance, in R. v. Chan, the companion case that was decided together with Sullivan, this court ordered a new trial rather than entering an acquittal on the grounds that even though the trial judge had made a finding that the accused was experiencing “psychosis induced by intoxication”, he had “made no finding that Mr. Chan was not acting voluntarily” or that he had “reached the stage of automatism”: Sullivan (C.A.), at paras. 164, 166.[1]
[61] The same is true of the related question of whether the defence of extreme intoxication akin to automatism has an air of reality. For instance, in R. v. Morris, 2024 SKCA 36, 435 C.C.C. (3d) 490, where the Saskatchewan Court of Appeal found that it was an error for the trial judge not to have left the defence with the jury, the accused had adduced psychiatric opinion evidence that he had been acting in an automatistic state when he committed two robberies and sexually assaulted one of the robbery victims. If the jury had accepted this evidence, it would have permitted the jurors to find that the accused had met his burden of establishing the defence of extreme intoxication akin to automatism.
[62] There are some factual parallels between Morris and the appellant’s case. Like the appellant, the accused in Morris had no prior criminal record, and “some of [his] actions surrounding the criminal acts in question were bizarre”: Morris, at para. 101. However, the accused in Morris also had a history of unusual behaviour when he drank heavily, and “[t]here was also medical evidence of a past incident of a dissociative experience”: Morris, at para. 101. The most critical difference is that Dr. Rootenberg, unlike the forensic psychiatrist who testified for the defence in Morris, was never asked to give an opinion about whether the appellant’s possible cocaine-induced psychosis rose to the level where he was in a state akin to automatism. The appellant’s experienced trial counsel appears to have made a considered decision not to raise this issue with Dr. Rootenberg, and Crown counsel unsurprisingly did not do so herself in cross-examination.
[63] Absent any expert opinion evidence that the appellant’s cocaine consumption had caused him to act non-volitionally, as opposed to merely acting bizarrely or irrationally, perhaps because he was experiencing hallucinations, delusional beliefs or disordered thinking, there was in my view no air of reality to the defence of extreme intoxication akin to automatism.
[64] While I agree with Mr. Lockyer that there was considerable other evidence in the trial record that the appellant had acted bizarrely and irrationally that night, and that his conduct was seemingly out of character, this evidence was not capable, considered along with the appellant’s testimony about his lack of memory, of establishing on a balance of probabilities that his actions that night were non-volitional, rather than merely caused by his drug-impaired thought processes. Without expert evidence that the specific drugs the appellant had consumed that night (that is, cocaine and alcohol) were capable of causing extreme intoxication akin to automatism, it would have been speculative for the jury to jump to the conclusion that the appellant’s intoxication was so severe that he was no longer acting of his own volition.
[65] In my view, the appellant’s experienced trial counsel, despite initially indicating that the appellant would be seeking to advance the defence of extreme intoxication akin to automatism, correctly recognized at the end of the trial that the evidence that had been presented to the jury did not support this defence. This is why he took the position that this defence should not go to the jury. On the evidential record, the trial judge likewise made no error by not instructing the jury on this defence. . R. v. Sullivan
In R. v. Sullivan (Ont CA, 2020) the Court of Appeal considers the interesting criminal law issue of 'automatism' in the course of a successful Charter challenge:[2] Automatism is defined as “a state of impaired consciousness, rather than unconsciousness, in which an individual, though capable of action, has no voluntary control over that action”: R. v. Stone, 1999 CanLII 688 (SCC), [1999] 2 S.C.R. 290, at para. 156, per Bastarache J. Involuntariness is therefore the essence of automatism. The “mind does not go with what is being done”: Rabey v. The Queen, 1980 CanLII 44 (SCC), [1980] 2 S.C.R. 513, at p. 518, citing R. v. K., 1970 CanLII 431 (ON SC), [1971] 2 O.R. 401 (S.C.), at p. 401.
[3] Persons in a state of automatism may have the benefit of a “defence” when they engage in otherwise criminal conduct, even though automatism is not a justification or excuse: R. v. Luedecke, 2008 ONCA 716, 93 O.R. (3d) 89, at para. 56. Instead, automatism is treated as negating the crime. It is referred to as a defence because the accused bears the burden of establishing automatism. In Luedecke, at para. 56, Doherty J.A. explained the underlying principles:A person who is unable to decide whether to perform an act and unable to control the performance of the act cannot be said, in any meaningful sense, to have committed the act. Nor can it be appropriate in a criminal justice system in which liability is predicated on personal responsibility to convict persons based on conduct which those persons have no ability to control. [4] There are two branches to the defence of automatism. The mental disorder defence, codified in s. 16 of the Criminal Code, R.S.C., 1985, c. C-46, applies where involuntariness is caused by a disease of the mind, since those who are in a state of automatism are incapable of appreciating the nature and quality of their acts or of knowing at the time of their conduct that it is morally wrong [“mental disorder automatism”]. If successful, a mental disorder automatism defence will result in a not criminally responsible verdict, with the likelihood of detention or extensive community supervision.
[5] The alternative branch, the common law automatism defence, applies where the involuntariness is not caused by a disease of the mind [“non-mental disorder automatism”]. Where a non-mental disorder automatism defence succeeds, the accused is acquitted.
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