R. v. H. (S.) Defences Automatism Insane and non-insane

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1 88 [Indexed as: R. v. H. (S.)] Her Majesty the Queen, Appellant and S.H., Respondent Ontario Court of Appeal Docket: CA C ONCA 303 Robert J. Sharpe, David Watt, M.L. Benotto JJ.A. Heard: January 27, 2014 Judgment: April 22, 2014 Defences Automatism Insane and non-insane Trial judge erring in acquitting in two sexual assault cases on basis of non-mental disorder automatism Once involuntariness proved by accused on balance of probabilities, presumption that involuntariness arose from mental disorder If not rebutted, finding to be not criminally responsible on account of mental disorder. The accused was charged with the sexual assault of two of his neighbours. The attacks occurred on the same evening just a few minutes apart. Both of the victims were widowed. One was in her late 50s and the other in her 80s. The accused was 60 years old and married. He frequently did chores for the two women and he also drank beer with them. On the day of the attacks, the accused was doing various chores for himself, the complainants and his daughter. He had consumed around five beers over the course of a few hours. It was a summer day and the accused s wife noticed that he was red-faced and sweating. After dinner, while his wife was out shopping, he went to the home of the older complainant. She offered him a beer and they talked while he drank it. He then got up to leave, but instead grabbed the complainant and made clear that he intended to have sex with her. He pushed her into the bedroom and she tried to fight back. He suddenly stopped, told her to lock her door, and left the house. She suffered bruises and cuts. She called 911 and then the other complainant to report what had happened. The accused proceeded to the house of the second complainant. He entered her bedroom where she was lying in bed. He removed his shirt, unzipped his pants, and told her that he intended to have sex with her. He grabbed her by the throat and punched her. The second complainant could hear the first complainant leaving her a voic message as she was being attacked. Suddenly the accused was startled and left the room. He was later found by police lying face down in the basement of the second complainant. The accused did not dispute that the events described by the complainants took place but claimed to have no memory

2 R. v. H. (S.) 89 of the events. He had a very good relationship with both women and no history of violence. The trial judge found that the actions of the accused were involuntary and that he was in a state of automatism during the attacks. He classified the automatism as non-mental disorder automatism and acquitted the accused. The Crown appealed. Held: The appeal was allowed and a new trial ordered. The new trial was limited to the issue of whether the involuntary acts of the accused should be classified as arising from a mental disorder. Per Watt J.A. (Sharpe and Benotto JJ.A. concurring): Both the Crown and the defence called medical evidence at the trial. The defence expert, a neurologist, testified that the actions of the accused were consistent with a series of small strokes and an episode of global amnesia. He described this as a disease of the brain rather than a disease of the mind. The Crown expert, a neuropsychologist, testified that the defence expert s medical conclusions were speculative. She considered the accused s actions to be voluntary and consistent with suppressed anger. The question of how to classify the involuntary behaviour of the accused was a question of law. The actions of the accused were presumed to be voluntary until the accused proved otherwise on a balance of probabilities. Once involuntariness was proven, it was to be presumed that automatism was the result of a mental disorder, leading to an NCR finding, unless the evidence demonstrated on a balance of probabilities that this was a case of non-mental disorder automatism. The trial judge was required to consider the medical evidence against the legal standards for such a determination, by examination of the internal cause factor and the recurring danger factor. Here the trial judge had erred in failing to begin from a presumption of mental disorder automatism and in relying on the expert s distinction between a disease of the brain and a disease of the mind. The concept of a disease of the mind, or mental disorder, was a legal term that encompassed conditions that were caused by a physical origin as well as those that were functional in nature. The trial judge accepted the expert s conclusion on the central legal issue in the case without applying the appropriate test in light of the presumption. A new trial was required on this issue. Comment R. v. H. (S.) is yet another example of the defence of automatism being raised in a case involving violence against women. One of the many problems with this defence is that it has the effect of pathologizing such violence. It promotes the idea that normal men don t kill, rape or assault women and the accused must either have been in an involuntary state due to some external cause beyond his control or from a disease of the mind. We see this in H. (S.) where the accused is

3 90 portrayed as an otherwise good person who lacked any motive or animus to sexually assault the two complainants. So much so that the trial judge was satisfied that the accused s conduct was caused by temporal lobe seizures and that he did not pose a future risk to women justifying an acquittal. Leaving aside the broader policy issues raised by the automatism defence, the Court of Appeal decision reveals the extent to which courts struggle with articulating and applying the evidential burden in cases involving reverse onus defences. In R. v. Stone, [1999] 2 S.C.R. 290, 24 C.R. (5th) 1 (S.C.C.), Justice Bastarche, for the majority, set out a number of factors to be considered in assessing whether the evidential burden for automatism has been met: 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 caseby-case basis and to determine whether a properly instructed jury could find that the accused acted involuntarily on a balance of probabilities. However, in R. v. Fontaine, [2004] 1 S.C.R. 702, 18 C.R. (6th) 203 (S.C.C.), the Supreme Court overruled this part of Stone. Justice Fish, for the Court, held that this approach sets the evidential threshold too high and is inconsistent with the

4 R. v. H. (S.) 91 approach the Court subsequently set out in R. v. Cinous, [2002] 2 S.C.R. 3, 49 C.R. (5th) 209 (S.C.C.): 88 The carefully crafted factors set out by Bastarache J. in that case can no longer, in the light of Cinous, be seen to inform the judge s legal determination whether the required evidential burden has been met. For the triers of fact, however, they may be expected to afford both structure and guidance. 89 Where mental disorder automatism is raised as a defence, an assertion of involuntariness on the part of the accused, supported by the logically probative opinion of a qualified expert, will normally provide -- as it did in this case -- a sufficient evidentiary foundation for putting the defence to the jury. By logically probative, I simply mean relevant -- that is, evidence which, if accepted by the jury, would tend to support the defence of mental disorder automatism. Accompanying instructions in law will make it clear to the jury that the burden remains on the accused to establish the defence to the required degree of probability. This retreat from Stone was unfortunate because it really removed the gatekeeping role of the trial judge. It is hard to imagine an automatism case where there is not an assertion of involuntariness by the accused supported by expert evidence. In H. (S.), Justice Watt, for the Court, did not, when discussing the issue of evidential burden, refer to Fontaine and instead appeared to follow the now overruled Stone approach: 70 The court in Stone makes it clear that a mere assertion of involuntariness will not be enough to meet the evidentiary burden: Stone, at para The claim must be confirmed by expert evidence, sometimes described as psychiatric evidence (para. 184), and on other occasions as expert psychiatric or psychological evidence (para. 192). 71 The Stone majority offered some guidance about the nature of the additional evidence that may be relevant for consideration in deciding whether an accused had satisfied the evidentiary burden to put automatism in play before the trier of fact. That evidence includes, but is not limited to: i. evidence of a documented medical history of automatisticlike dissociative states (para. 189); ii. evidence of a bystander about the appearance of the accused before, during and after the alleged involuntary conduct (para. 190); and iii. evidence of motive or absence of motive (para. 191).

5 92 David M. Tanovich Faculty of Law, University of Windsor Cases considered by David Watt J.A.: Cooper v. R. (1979), 4 L. Med. Q. 227, 1979 CarswellOnt 74, [1980] 1 S.C.R. 1149, 1979 CarswellOnt 60, 13 C.R. (3d) 97, 18 C.R. (3d) 138, 51 C.C.C. (2d) 129, 31 N.R. 234, 110 D.L.R. (3d) 46, [1979] A.C.S. No. 139, [1979] S.C.J. No. 139 (S.C.C.) considered R. v. Araujo (2000), [2000] 2 S.C.R. 992, 79 C.R.R. (2d) 1, 2000 SCC 65, 2000 CarswellBC 2438, 2000 CarswellBC 2440, 38 C.R. (5th) 307, 193 D.L.R. (4th) 440, 149 C.C.C. (3d) 449, 143 B.C.A.C. 257, 235 W.A.C. 257, 262 N.R. 346, [2000] S.C.J. No. 65, REJB (S.C.C.) referred to R. v. Biniaris (2000), 134 B.C.A.C. 161, 219 W.A.C. 161, 32 C.R. (5th) 1, 2000 SCC 15, 2000 CarswellBC 753, 2000 CarswellBC 754, 184 D.L.R. (4th) 193, 143 C.C.C. (3d) 1, [2000] 1 S.C.R. 381, 252 N.R. 204, [1998] S.C.C.A. No. 164, [2000] S.C.J. No. 16 (S.C.C.) referred to R. v. Ewanchuk (1999), 235 N.R. 323, 22 C.R. (5th) 1, 1999 CarswellAlta 99, 1999 CarswellAlta 100, 131 C.C.C. (3d) 481, 169 D.L.R. (4th) 193, [1999] 6 W.W.R. 333, [1999] 1 S.C.R. 330, 232 A.R. 1, 195 W.A.C. 1, 68 Alta. L.R. (3d) 1, [1999] S.C.J. No. 10 (S.C.C.) referred to R. v. H. (J.M.) (2011), 421 N.R. 76, 87 C.R. (6th) 213, 2011 SCC 45, 2011 CarswellOnt 9952, 2011 CarswellOnt 9953, 283 O.A.C. 379, 276 C.C.C. (3d) 197, [2011] 3 S.C.R. 197, 342 D.L.R. (4th) 347, [2011] S.C.J. No. 45 (S.C.C.) referred to R. v. Hartridge (1966), 48 C.R. 389, 56 W.W.R. 385, 57 D.L.R. (2d) 332, [1967] 1 C.C.C. 346, 1966 CarswellSask 22 (Sask. C.A.) referred to R. v. Kemp (1956), [1957] 1 Q.B. 399, 73 L.Q.R. 12, 20 M.L.R. 55, [1956] 3 All E.R. 249 (Eng. Q.B.) referred to R. v. Luedecke (2008), 61 C.R. (6th) 139, 236 C.C.C. (3d) 317, 269 O.A.C. 1, 2008 CarswellOnt 6024, 2008 ONCA 716, 93 O.R. (3d) 89, [2008] O.J. No (Ont. C.A.) referred to R. v. Morin (1992), 1992 CarswellAlta 472, 16 C.R. (4th) 291, [1992] 3 S.C.R. 286, 142 N.R. 141, 76 C.C.C. (3d) 193, 131 A.R. 81, 25 W.A.C. 81, 41 M.V.R. (2d) 161, 1992 CarswellAlta 276, EYB , [1992] S.C.J. No. 7 (S.C.C.) referred to R. v. O Brien (1965), [1966] 3 C.C.C. 288, 1965 CarswellNB 18, 56 D.L.R. (2d) 65 (N.B. C.A.) referred to R. v. Parks (1992), 55 O.A.C. 241, 140 N.R. 161, 75 C.C.C. (3d) 287, [1992] 2 S.C.R. 871, 95 D.L.R. (4th) 27, 15 C.R. (4th) 289, 1992 CarswellOnt 996, 1992 CarswellOnt 107, EYB , [1992] S.C.J. No. 71 (S.C.C.) referred to