What You Need to Know – Automatism – I Just Couldn’t Help Myself

Recently, the Supreme Court rendered two judgments dealing with the defence of automatism. The defence arises when an accused admits to committing the crime but argues that he or she was helpless to stop him or herself from doing it.

?Both cases, R. vs. Brown[i] (the “Brown Judgment”) and R. vs. Sullivan[ii] (the “Sullivan Judgment”), involved defendants who were charged with violent crimes and who each invoked the automatism defence.

?In Brown, the only defendant was Mr. Matthew Brown.

The Sullivan Judgment dealt with two separate appeals, one by Mr. David Sullivan and one by Mr. Thomas Chan. Although their criminal trials were held separately, the Ontario Court of Appeal heard both their appeals at the same time resulting in their appeals also being joined before the Supreme Court.[iii]

?Here’s how the Court summarized the facts in Brown:

?“At a friend’s house party on a January night in Calgary, Mr. Brown had six or seven mixed drinks, a few beers and consumed several one-half gram or smaller portions of magic mushrooms. He was 26 years old and in his last year of university and was aware that psilocybin in magic mushrooms is an illegal drug that can bring about hallucinations. He had tried magic mushrooms once before and believed that they generally gave a ‘fuzzy but positive feeling’.

?… he felt ‘wonky’ and began to ‘los[e] [his] grip on reality’ Without any memory of having done so, Mr. Brown removed his clothing and left the house in an agitated state at around 3:45 a.m., running naked and barefoot into the cold winter night. His friends searched for him for about 10 to 15 minutes and then called the police.

In a nearby house, Janet Hamnett was awoken around 4:00 a.m. by a loud noise. When she went to investigate, Ms. Hamnett was attacked by someone she did not know whom she later described as a huge presence screaming at the top of his lungs. The intruder was Mr. Brown. Ms. Hamnett fell to the ground and put her arms up as he beat her repeatedly with a broken broom handle. With her head, face and arms covered in blood, she managed to get to a bathroom and lock the door. Mr. Brown left the house and continued into the street. When all appeared quiet, Ms. Hamnett sought refuge at a neighbour’s house, at which time the police were called. The attack left her with cuts and contusions, as well as broken bones in her right hand which resulted in permanent injuries. She also suffered psychological harm from the incident.

?At about 5:00 a.m., Mr. Brown broke into the Varshney residence a kilometer away by throwing a heavy object through the front door window. Mr. and Mrs. Varshney, who did not know Mr. Brown, heard screaming and the sound of breaking glass. They were able to take shelter in their bedroom and call the police. The police found Mr. Brown lying naked on the floor of a bathroom. He was whispering and appeared confused by his surroundings; his feet were visibly bruised and bloodied. Mr. Brown complied with police instructions and was taken for medical care. He recalled coming to, in hospital, then waking later in a jail cell. Mr. Brown later said he had no memory of what transpired at either of the two homes.”[iv]

?The Supreme Court set out the facts regarding Mr. Sullivan as follows:

?“All parties agree that Mr. Sullivan attacked his mother during an episode of drug-induced psychosis during which he had no voluntary control over his actions. Mr. Sullivan, then 43 years old, lived with his mother in a condominium unit. He has a history of mental illness and substance abuse. Evidence adduced at trial indicated that in the three months before the attack, he was convinced that the planet would be invaded by aliens that were already present in their condominium.

?Mr. Sullivan had been prescribed bupropion (under the name Wellbutrin) to help him quit smoking. Psychosis is a side effect of the drug. He had experienced psychosis from Wellbutrin at least once before, shortly before the events in this case. The evening prior to the attack, he ingested 30 to 80 Wellbutrin tablets in a suicide attempt. The drugs prompted a psychotic episode during which time, in the early hours of the morning, he woke his mother and told her an alien was in the living room. She followed him into the area and, while she was there, Mr. Sullivan went into the kitchen, took two knives, and stabbed his mother six times. She suffered serious injuries, including residual nerve damage that was slow to heal. She died before trial of unrelated causes.

?Several neighbors saw Mr. Sullivan acting erratically outside of the building after the attack. Agitated when the police arrived, Mr. Sullivan was talking about Jesus, the devil, and aliens. He was taken to the hospital, where he had multiple seizures. The psychotic episode resolved itself within a few days. At trial, a forensic psychiatrist gave evidence that Mr. Sullivan was likely experiencing a bupropion induced psychosis at the time of the attack on his mother.”[v]

?As for Mr. Chan, here is what happened:

?“Thomas Chan violently attacked his father and his father’s partner with a knife. Mr. Chan’s father later died from his injuries. The father’s partner was gravely and permanently injured.

?After returning home from a bar where they had consumed several alcoholic drinks earlier that evening, Mr. Chan and his friends decided to take magic mushrooms. Mr. Chan had consumed mushrooms before and enjoyed the experience. He ingested an initial dose and when he failed to feel the same effects as his friends, he took a second dose. Towards the end of the night, he began acting erratically. Frightened, he went upstairs where he woke up his mother, mother’s boyfriend, and sister. Mr. Chan then left the home wearing only a pair of pants. His family and friends pursued him as he ran towards his father’s home a short distance away. Mr. Chan broke into his father’s house through a window even though he normally gained entry through finger-print recognition on a home security system.

??Once inside, he confronted his father in the kitchen and did not appear to recognize him. He shouted that he was God and that his father was Satan. He proceeded to stab his father repeatedly. He then stabbed his father’s partner. When police arrived, he complied with their demands, although at one point he struggled with what a police officer described as ‘super strength’.”[vi]

All three, Mr. Brown, Mr. Sullivan, and Mr. Chan, pleaded that they should be found not guilty by reason of automatism.[vii] The trial courts and the Courts of Appeal came to different conclusions as to the validity of the defense.[viii]

?The Supreme Court described 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. It is sometimes said that the effect of automatism is to provoke physical involuntariness whereby there is no connection between mind and body. Examples often given include the involuntary physical movement of an individual who has suffered a heart attack or seizure. Conduct that is involuntary in this sense cannot be criminal.”[ix]

?In 1994, the Supreme Court rendered a judgment in R. vs. Daviault[x] where, because of the provisions of the Canadian Charter of Rights and Freedoms (the “Charter”), the Supreme Court held that the defence of automatism was applicable “…where intoxication is so extreme that an accused falls into a condition akin to automatism, a conviction for the offence charged would violate the provisions of the Charter guaranteeing everyone … the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principals of fundamental justice” and of Section 11 of the Charter which enshrines the presumption of innocence “… until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.” The Supreme Court reasoned that “[i]t would be unfair… to hold an individual responsible for crimes committed while in the state of automatism, as they are incapable of voluntarily committing a guilty act or of having a guilty mind.”[xi]

?In reaction to the public “…incomprehension and disapproval…” of the Judgment in Daviault, the Federal Government enacted Section 33.1 of the Criminal Code (“Cr.C.”)[xii] under which an accused would be criminally liable for a “…violent offence if an accused interferes with the bodily integrity of another ‘while’ in a state of self-induced intoxication rendering [him or her] incapable of consciously [controlling [his or her] behaviour. Section 33.1 Cr.C. treats extreme voluntary intoxication, foreseeable or otherwise, as a condition of liability for the underlying violent offence and not as a measure of fault based on criminal negligence.”[xiii]

?As a result, an accused “… risks conviction for [committing an offence] … based on conduct that occurred while [he or she was] incapable of committing the guilty act… or of having the guilty mind… required to justify conviction and punishment. [The accused is] not being held to account for [his or her] conduct undertaken as [a] free agent, including the choice to ingest an intoxicant undertaken when neither the risk of automatism nor the risk of harm was necessarily foreseeable. Instead, the accused is called to answer for the …crime that [he or she] cannot, voluntarily or wilfully, commit, an offence for which the whole weight of the criminal law and [Sections] 7 and 11(d) [of the Charter] say they may be morally innocent. To deprive a person of [his or her] liberty for that involuntary conduct committed in a state akin to automatism - conduct that cannot be criminal - violates the principles of fundamental justice in a system of criminal justice based on personal responsibility for one’s actions.”[xiv]

?As readers might surmise, the Supreme Court found Section 33.1 Cr.C. to be unconstitutional.[xv] It succinctly summarized its reasons as follows:

?“The violations of the rights of the accused in respect of the principles of fundamental justice and the presumption of innocence occasioned by s. 33.1 are grave. Notwithstanding Parliament’s laudable purpose,… The legitimate goals of protecting the victims of these crimes and holding the extremely self-intoxicated accountable, compelling as they are, do not justify these infringements of the Charter that so fundamentally upset the tenets of the criminal law. With s. 33.1, Parliament has created a meaningful risk of conviction and punishment of an extremely intoxicated person who, while perhaps blameworthy in some respect, is innocent of the offence as charged according to the requirements of the Constitution.”[xvi]

?As a result, Mr. Brown was acquitted[xvii] as was Mr. Sullivan.[xviii] As for Mr. Chan, for reasons not having to do with the issue of the constitutionality of Section 33.1 Cr.C, the Supreme Court ordered that he have a new trial.[xix]

As for the defense of automatism, Parliament may soon eliminate it for all practical purposes. In the Brown Judgment, the Supreme Court laid out clear guidance as to how Parliament can legislate to make it a crime to ingest drugs or other materials that intoxicate someone to the point that he or she commits an offence. Thus, the defense of automatism would remain but it would be a crime to do that which would give rise to the defense, namely the taking so much drugs or other materials that one becomes so intoxicated that one cannot be held criminally liable for any crimes one commits which intoxicated:

“I hasten to say that there may well have been other paths for Parliament to achieve its legitimate aims connected to combatting extreme intoxicated violence. The sense that an accused who acts violently in a state of extreme self-induced intoxication is morally blameworthy is by no means beyond the proper reach of the criminal law. Protecting the victims of violent crime — particularly in light of the equality and dignity interests of women and children who are vulnerable to intoxicated sexual and domestic violence — is a pressing and substantial social purpose. … it was not impermissible for Parliament to enact legislation seeking to hold an extremely intoxicated person accountable for a violent crime when they chose to create the risk of harm by ingesting intoxicants.

The alternatives to the constitutionally fragile s. 33.1 strike different balances between individual rights and societal interests and, no doubt, each has advantages and shortcomings as a matter of social policy. Some of these options would be manifestly fairer to the accused while achieving some, if not all, of Parliament’s objectives. I am mindful that it is not the role of the courts to set social policy, much less draft legislation for Parliament, as courts are not institutionally designed for these tasks. But it is relevant [to note that] it would likely be open to Parliament to establish a stand-alone offence of criminal intoxication. Others… have suggested liability for the underlying offence would be possible if the legal standard of criminal negligence required proof that both of the risks of a loss of control and of the harm that follows were reasonably foreseeable. In either of these ways, Parliament would be enacting a law rooted in a ‘moral instinct’ that says a person who chooses to become extremely intoxicated may fairly be held responsible for creating a situation where they threaten the physical integrity of others.”[xx]

WHAT YOU NEED TO KNOW

·??????Canadian courts are very vigilant in protecting the rights guaranteed by the Charter. However, they will always balance these rights against Canadian society’s legitimate interests. Indeed, they are required to do so by Section 1 of the Charter which says that it “… 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.” (Our underling)

·??????In essence, the problem with Section 33.1 Cr.C was that it made the accused liable for crimes which they committed when they had no ability to either understand what they were doing nor, more importantly, to stop what they were doing. The Supreme Court held that it is unconstitutional to convict someone of committing a crime that he or she could not stop himself or herself from doing; and

·??????It is rare for judges to give advice to politicians as to how to draft laws that are constitutionally sound. But, in these judgments, the Supreme Court recognizing society’s interests in protecting itself from individuals who become so intoxicated that they lose their ability to control themselves and, as a result, commit violent crimes, gave Parliament a clear roadmap as to how it should proceed to make such level of intoxication a crime, without infringing upon the Charter.

It goes without saying that the preceding comments are general in nature and are not intended to offer any legal advice regarding any specific situation.

[i] 2022 SCC 18.

[ii] 2022 SCC 19.

[iii] Paras. 2 & 4, Sullivan Judgment.

[iv] Paras. 15-18, Brown Judgment.

[v] Paras. 9 - 11, Sullivan Judgment.

[vi] Paras. 12 - 14, Sullivan Judgment.

[vii] Mr. Brown’s case originated in Alberta.??????????

[viii] Paras. 28 & 39, Brown Judgment and Paras. 15, 16, 22 & 31 of Sullivan Judgment.

[ix] Paragraph 2 of the Judgment in the Brown Judgment. (Unless otherwise indicated, all references to paragraph numbers refer to paragraph numbers of the Supreme Court’s Judgments, Unless otherwise indicated all footnotes and internal citations omitted from the citation..)

[x] [1994] 3 S.C.R. 63.

[xi] Para. 6, Brown Judgment.

[xii] R.S.C. 1985, c. C–46.

[xiii] Para. 8, Brown Judgment.

[xiv] Para. 9, Brown Judgment.

[xv] Para. 137, Brown Judgment & Paras. 93 & 98, Sullivan Judgment.

[xvi] Para. 13, Brown Judgment.

[xvii] Para. 168, Brown Judgment.

[xviii] Para. 98, Sullivan Judgment.

[xix] Paras. 93 & 94, Sullivan Judgment.

[xx] Paras. 10 & 11, Brown Judgment.