R. v. Stone

R. v. Stone
Collection
Supreme Court Judgments
Date
1999-05-27
Report
[1999] 2 SCR 290
Case number
25969, 26032
Judges
Lamer, Antonio; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil
On appeal from
British Columbia
Subjects
Courts
Criminal law
Notes
SCC Case Information: 25969, 26032
Decision Content
R. v. Stone, [1999] 2 S.C.R. 290
Bert Thomas Stone Appellant
v.
Her Majesty The Queen Respondent
and between
Her Majesty The Queen Appellant
v.
Bert Thomas Stone Respondent
and
The Attorney General of Canada,
the Attorney General for Ontario and
the Attorney General for Alberta Interveners
Indexed as: R. v. Stone
File Nos.: 25969, 26032.
1998: June 26; 1999: May 27.
Present: Lamer C.J. and L’Heureux‑Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ.
on appeal from the court of appeal for british columbia
Criminal law -- Defences -- Insane and non-insane automatism -- Accused killing wife after she had allegedly assaulted him verbally -- Accused convicted of manslaughter and sentenced to seven years’ imprisonment -- Whether accused entitled to have either or both automatism defences left with the jury -- Criminal Code, R.S.C., 1985, c. C-46, ss. 2 , 16 .
Courts -- Production of documents --Privilege -- Defence document referred to in opening remarks -- Document ordered produced for Crown -- Whether production properly ordered -- Whether miscarriage of justice resulted from order for production.
Sentencing -- Verdict – Jury instructed on murder and provocation -- Accused convicted of manslaughter and sentenced to seven years’ imprisonment -- Whether provocation properly considered in reducing verdict of murder and as mitigating factor in determining sentence -- Whether sentence fit and properly reflecting gravity of the offence and moral culpability of the accused -- Criminal Code, R.S.C., 1985, c. C-46, ss. 232 , 687 , 718.2 .
The accused admitted stabbing his wife 47 times but claimed to have done it while in an automatistic state brought on by nothing more than his wife’s insulting words. The accused testified that he felt a “whoosh” sensation washing over him. When his eyes focussed again, he was staring straight ahead and felt something in his hand. He was holding a six-inch hunting knife. He looked over and saw his wife slumped over on the seat. He disposed of the body in his truck tool box, cleaned up, drove home, prepared a note for his step-daughter, and checked into a hotel. He then collected a debt, sold a car and flew to Mexico. While in Mexico, the accused awoke one morning to the sensation of having his throat cut. In trying to recall his dream, he remembered stabbing his wife twice in the chest before experiencing a “whooshing” sensation. He returned to Canada about six weeks later, spoke to a lawyer and surrendered himself to police. He was charged with murder.
In his defence, the accused claimed: insane automatism, non-insane automatism, lack of intent, and alternatively, provocation. The trial judge ruled that the defence had laid a proper evidentiary foundation for insane, but not non-insane, automatism. Accordingly, he instructed the jury on insane automatism, intention in relation to second degree murder and provocation. The accused was found guilty of manslaughter and sentenced to seven years’ imprisonment.
In opening remarks at trial, counsel for the defence stated that the evidence which would be given by the defence psychiatrist would support the defence of automatism. The defence only made this expert’s report available to the Crown after the latter successfully brought a motion for disclosure.
The Court of Appeal upheld accused’s conviction and dismissed the Crown’s appeal of the sentence. Both the accused and the Crown appealed to this Court. At issue here were: (1) whether the “defence” of sane automatism should have been left to the jury; (2) whether the defence psychiatric report was properly ordered disclosed to the Crown; and (3)(a) whether the sentencing judge could consider provocation as a mitigating factor for manslaughter where the same provocation had already been considered in reducing the charge to manslaughter; and (b) whether the sentence was fit and properly reflected the gravity of the offence and the moral culpability of the offender.
Held (Lamer C.J. and Iacobucci, Major and Binnie JJ. dissenting on the appeal from conviction): The accused’s appeal from conviction should be dismissed. The Crown’s sentence appeal should also be dismissed.
(1) “Defence” of sane automatism
Per L’Heureux-Dubé, Gonthier, Cory, McLachlin and Bastarache JJ.: Two forms of automatism are recognized at law. Non-insane automatism arises where involuntary action does not stem from a disease of the mind and entitles the accused to an acquittal. Insane automatism, on the other hand, arises only where involuntary action is found, at law, to result from a disease of the mind and is subsumed by the defence of mental disorder. A successful defence of insane automatism will trigger s. 16 of the Criminal Code and result in a verdict of not criminally responsible on account of mental disorder.
The law presumes that people act voluntarily. Since a defence of automatism amounts to a claim that one’s actions were not voluntary, the accused must establish a proper foundation for this defence before it can be left with the trier of fact. This is the equivalent of satisfying the evidentiary burden for automatism. Once the evidentiary foundation has been established, the trial judge must determine whether the condition alleged by the accused is mental disorder or non-mental disorder automatism.
A two-step approach should therefore apply to all cases involving claims of automatism. First, the defence must establish a proper foundation for automatism. This burden is only 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 all cases, this will require that the defence make an assertion of involuntariness and call confirming psychiatric evidence. Other relevant factors to be considered in determining whether this defence burden has been satisfied 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. No one factor is determinative. The trial judge must weigh all of the available evidence on a case-by-case basis. Placing this burden on the defence, while constituting a limitation of an accused’s s. 11(d) Charter rights, is justified under s. 1.
Second, given the establishment of a proper foundation, the trial judge must determine whether the condition alleged by the accused is mental disorder or non-mental disorder automatism. The assessment of which form of automatism should be left with the trier of fact comes down to the question of whether or not the alleged condition is a mental disorder. Mental disorder is a legal term defined in the Code as “a disease of the mind”. The question of what conditions are included in that term is a question of mixed law and fact because it involves an assessment of the particular evidence in the case rather than a general principle of law. Trial judges should start from the proposition that the condition is a disease of the mind and then determine whether the evidence in the particular case takes the condition out of the disease of the mind category.
There are two distinct approaches to the disease of the mind inquiry. Under the first, the internal cause theory, the trial judge must compare the accused’s automatistic reaction to the way one would expect a normal person to react in order to determine whether the condition the accused claims to have suffered from is a disease of the mind. The trial judge must consider the nature of the alleged trigger of the automatism and determine whether a normal person might have reacted to it by entering an automatistic state. This comparison is a contextual objective one. Evidence of an extremely shocking trigger will be required to establish that a normal person might have reacted to it by entering an automatistic state as the accused claims to have done.
The objective element of the internal cause theory does not violate ss. 7 (the fundamental principles of justice) and 11(d) (the right to be presumed innocent) of the Charter. The objective inquiry is applied to assess whether the condition claimed by the accused is a disease of the mind only after a subjective inquiry has been completed by the trial judge into whether there is evidence upon which a properly instructed jury could find, on a balance of probabilities, that the accused acted involuntarily. The objective standard affects only the classification of the defence rather than the assessment of whether the actus reus of the offence has been established. That is, the objective component does not affect the burden of proof on the issue of whether the accused voluntarily committed the offence. Moreover, the impact of the objective comparison is limited even with regard to the disease of the mind inquiry because the internal cause theory is only an analytical tool. Consideration of the subjective psychological make-up of the accused in the internal cause theory would frustrate the very purpose of making the comparison which is the determination of whether the accused was suffering from a disease of the mind in a legal sense.
The second approach, the continuing danger theory, holds that any condition which is likely to present a recurring danger to the public should be treated as a disease of the mind. While a continuing danger suggests a disease of the mind, a finding of no continuing danger does not preclude a finding of a disease of the mind. Trial judges may consider any of the evidence before them in order to assess the likelihood of recurrence of violence and in particular the psychiatric history of the accused and the likelihood that the trigger alleged to have caused the automatistic episode will recur.
The internal cause theory and the continuing danger theory should not be viewed as alternative or mutually exclusive approaches to the disease of the mind inquiry. Rather, a holistic approach should be adopted under which either or both of these approaches to the inquiry may be considered by trial judges. It is therefore more appropriate to refer to the internal cause factor and the continuing danger factor. In addition to these two factors, policy factors may also be considered in determining whether the condition the accused claims to have suffered from is a disease of the mind.
If the trial judge concludes that the condition the accused claims to have suffered from is not a disease of the mind, only the defence of non-mental disorder automatism will be left with the trier of fact as the trial judge will have already found that there is evidence upon which a properly instructed jury could find, on a balance of probabilities, that the accused acted involuntarily. The question for the trier of fact will then be whether the defence has proven, on a balance of probabilities, that the accused acted involuntarily. A positive answer to this question by the trier of fact will result in an absolute acquittal. On the other hand, if the trial judge concludes that the alleged condition is a disease of the mind, only mental disorder automatism will be left with the trier of fact. The case will then proceed like any other s. 16 case, leaving for the trier of fact the question of whether the defence has proven, on a balance of probabilities, that the accused suffered from a mental disorder which rendered him or her incapable of appreciating the nature and quality of the act in question. The determination of this issue by the trier of fact will absorb the question of whether the accused in fact acted involuntarily.
No substantial wrong or miscarriage of justice occurred here.
Per Lamer C.J. and Iacobucci, Major and Binnie JJ. (dissenting): The defence of non-mental disorder automatism should not have been taken away from the jury in light of the trial judge’s evidentiary ruling that there was evidence the accused was unconscious throughout the commission of the offence. The correctness of the ruling was affirmed by the British Columbia Court of Appeal.
Automatism is conceptually a sub-set of the voluntariness requirement, which in turn is part of the actus reus, and accordingly puts in issue the Crown’s ability to prove all of the elements of the offence beyond a reasonable doubt. While sane individuals are presumed to be responsible for their voluntary acts or omissions, no such inference of voluntariness can be drawn if the accused leads credible evidence, supported by expert testimony, that he was unconscious throughout the commission of the offence. A judge-made classification of situations into mental disorder automatism and non-mental disorder automatism cannot relieve the Crown of the obligation to prove all elements of the offence, including voluntariness. Otherwise there would be strong objections under s. 7 (fundamental principles of justice) and s. 11(d) (presumption of innocence) of the Charter, and no attempt was made in this case to provide a s. 1 justification. Similar Charter objections apply to any attempt to add to the evidential burden on the accused the further persuasive or legal burden to establish automatism on a balance of probabilities.
The law on automatism is correctly concerned with public safety. The risk of recurrence is legitimately part of the “policy component” of the legal analysis of “disease of the mind”. In the present case, neither psychiatrist considered recurrence a significant possibility.
The mental disorder provisions of the Criminal Code were not appropriate to resolve the automatism issue here. It was wrong of the courts to require the accused to substitute for his chosen defence of involuntariness the conceptually quite different plea of insanity. Both Crown and defence psychiatrists agreed that the accused did not suffer from a medically defined disease of the mind. He was either unconscious at the time of the killing or he was not telling the truth at the time of the trial. This was a question for the jury. The statutory inquiry into whether he was “suffering from a mental disorder” that rendered him “incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong” are qualitative questions that are not really responsive to his allegation that he was not conscious of having acted at all. While s. 16 of the Code may provide an appropriate structure to resolve cases of medical “diseases of the mind”, it may not be responsive to the real issues where the “disease of the mind” derives from legal classification, rather than medical classification. If the jury was satisfied that the s. 16 requirements were met, that would end the matter: the accused would have been found not criminally responsible on account of mental disorder (NCRMD). He or she would not be permitted to ignore NCRMD status and seek a full acquittal on the basis of involuntariness. However, if the jury rejects NCRMD status, it should still be left with the elementary instruction that the accused is entitled to an acquittal if the Crown fails to establish beyond a reasonable doubt all of the elements of the offence, including voluntariness.
The evidence established that there are states of automatism where perfectly sane people lose conscious control over their actions. Once the trial judge exercised his gatekeeper function to screen frivolous or feigned claims, it was for the jury to make up its mind on the credibility of the plea of automatism. This jurisdiction should not be removed by “judicially created policy”. It is to be expected that the jury will subject the evidence of involuntariness to appropriate scrutiny. There was discussion in Rabey v. The Queen about the need to maintain the credibility of the justice system. The jury is as well placed as anyone in the justice system to uphold its credibility. The bottom line is, after all, that the task of weighing the credibility of such defences was confined by Parliament to the jury. The Court should respect the allocation of that responsibility.
(2) Disclosure
Per the Court: The defence waived the privilege in its psychiatrist’s report at the opening of its case when counsel disclosed the elements in that report favourable to his client. In any event, if disclosure was premature, the accused suffered no prejudice. A witness, once on the stand, is no longer offering private advice to a party but rather is offering an opinion for the assistance of the court. The opposing party must be given access to the foundation of such opinions to test them adequately. Thus, even if the defence counsel’s opening address had been insufficient to constitute a waiver, s. 686(1)(b)(iii) of the Code would properly be applied to cure the error.
(3) Sentence Appeal
Per the Court: The sentencing judge must consider all of the circumstances of the offence, including whether it involved provocation. An accused does not gain a “double benefit” if provocation is considered in reducing a verdict from murder to manslaughter under s. 232 of the Code. Rather, s. 232 provides an accused with a single benefit and to give it full effect, provocation must be considered in sentencing as well.
The judiciary must bring the law into harmony with prevailing social values. A spousal connection between offender and victim is recognized as an aggravating factor in sentencing under s. 718.2 (a)(ii) and under the common law. Here, the Crown failed to establish that the sentencing judge did not properly consider the domestic nature of this offence in reaching his decision on sentence.
Appellate courts, in minimizing disparity of sentences in cases involving similar offences and similar offenders, may fix ranges for particular categories of offences as guidelines for lower courts provided they clearly describe the category created and the logic behind the range appropriate to it. They must not, however, interfere with sentencing judges’ duty to consider all relevant circumstances in sentencing.
Variation of sentence should only be made if an appellate court is convinced that a sentence is “not fit” or “clearly unreasonable”, provided the trial judge has not erred in principle, failed to consider a relevant factor or overemphasized the appropriate factors. This was not the case here.
Cases Cited
By Bastarache J.
Applied: R. v. Shropshire, [1995] 4 S.C.R. 227; considered: Rabey v. The Queen, [1980] 2 S.C.R. 513, aff’g (1977), 17 O.R. (2d) 1; R. v. Parks, [1992] 2 S.C.R. 871; R. v. Daviault, [1994] 3 S.C.R. 63; referred to: R. v. MacLeod (1980), 52 C.C.C. (2d) 193; R. v. Archibald (1992), 15 B.C.A.C. 301; R. v. Eklund, [1985] B.C.J. No. 2415 (QL); R. v. Peruta (1992), 78 C.C.C. (3d) 350, sub nom. Brouillette c. R., [1992] R.J.Q. 2776; Hodgkinson v. Simms (1988), 33 B.C.L.R. (2d) 129; R. v. M. (C.A.), [1996] 1 S.C.R. 500; R. v. K. (1970), 3 C.C.C. (2d) 84; R. v. Chaulk, [1990] 3 S.C.R. 1303; Bratty v. Attorney-General for Northern Ireland, [1963] A.C. 386; R. v. Falconer (1990), 50 A. Crim. R. 244; R. v. Cottle, [1958] N.Z.L.R. 999; Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748; R. v. Théroux, [1993] 2 S.C.R. 5; R. v. Szymusiak, [1972] 3 O.R. 602; Hill v. Baxter, [1958] 1 Q.B. 277; State v. Caddell, 215 S.E.2d 348 (1975); Fulcher v. State, 633 P.2d 142 (1981); Polston v. State, 685 P.2d 1 (1984); State v. Fields, 376 S.E.2d 740 (1989); R. v. Swain, [1991] 1 S.C.R. 933; General Electric Co. v. Joiner, 118 S.Ct. 512 (1997); R. v. Cameron (1992), 71 C.C.C. (3d) 272; R. v. Bevan, [1993] 2 S.C.R. 599; R. v. McDonnell, [1997] 1 S.C.R. 948; R. v. Laberge (1995), 165 A.R. 375; R. v. Martineau, [1990] 2 S.C.R. 633; R. v. Creighton, [1993] 3 S.C.R. 3; R. v. Campbell (1991), 70 Man. R. (2d) 158; R. v. Woermann (1992), 81 Man. R. (2d) 255; Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219; R. v. Lavallee, [1990] 1 S.C.R. 852; R. v. Seaboyer, [1991] 2 S.C.R. 577; Weatherall v. Canada (Attorney General), [1993] 2 S.C.R. 872; R. v. Doyle (1991), 108 N.S.R. (2d) 1; R. v. Brown (1992), 13 C.R. (4th) 346; R. v. Pitkeathly (1994), 29 C.R. (4th) 182; R. v. Jackson (1996), 106 C.C.C. (3d) 557; R. v. Edwards (1996), 28 O.R. (3d) 54.
By Binnie J. (dissenting)
Bratty v. Attorney-General for Northern Ireland, [1963] A.C. 386; Rabey v. The Queen, [1980] 2 S.C.R. 513, aff’g (1977), 17 O.R. (2d) 1; R. v. MacLeod (1980), 52 C.C.C. (2d) 193; R. v. Parks, [1992] 2 S.C.R. 871; R. v. Peruta (1992), 78 C.C.C. (3d) 350, sub nom. Brouillette c. R., [1992] R.J.Q. 2776; Hodgkinson v. Simms (1988), 33 B.C.L.R. (2d) 129; R. v. Szymusiak, [1972] 3 O.R. 602; R. v. Daviault, [1994] 3 S.C.R. 63; R. v. Théroux, [1993] 2 S.C.R. 5; R. v. Chaulk, [1990] 3 S.C.R. 1303; R. v. K. (1970), 3 C.C.C. (2d) 84; R. v. Falconer (1990), 50 A. Crim. R. 244; R. v. Tolson (1889), 23 Q.B.D. 168; Parnerkar v. The Queen, [1974] S.C.R. 449; R. v. Cameron (1992), 71 C.C.C. (3d) 272; R. v. Schwartz, [1988] 2 S.C.R. 443; Leary v. The Queen, [1978] 1 S.C.R. 29; Linney v. The Queen, [1978] 1 S.C.R. 646; R. v. Thibert, [1996] 1 S.C.R. 37; R. v. Lavallee, [1990] 1 S.C.R. 852; R. v. Malott, [1998] 1 S.C.R. 123; Latour v. The King, [1951] S.C.R. 19; R. v. Osolin, [1993] 4 S.C.R. 595; State v. Hinkle, 489 S.E.2d 257 (1996); Hawkins v. The Queen (1994), 72 A. Crim. R. 288; R. v. Cottle, [1958] N.Z.L.R. 999; Police v. Bannin, [1991] 2 N.Z.L.R. 237; R. v. Quick, [1973] 3 All E.R. 347; R. v. Hennessy (1989), 89 Cr. App. R. 10; M‘Naghten’s Case (1843), 10 Cl. & Fin. 200, 8 E.R. 718; R. v. Martineau, [1990] 2 S.C.R. 633; Hill v. Baxter, [1958] 1 Q.B. 277; R. v. Burgess, [1991] 2 All E.R. 769; R. v. Kemp, [1956] 3 All E.R. 249; R. v. Sullivan, [1984] A.C. 156; R. v. Swain, [1991] 1 S.C.R. 933; R. v. Corbett, [1988] 1 S.C.R. 670; R. v. Bernard, [1988] 2 S.C.R. 833; R. v. Hill, [1986] 1 S.C.R. 313.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 11 (d), (f).
Criminal Code, R.S.C., 1985, c. C-46, ss. 2 (“mental disorder”) [ad. 1991, c. 43, s. 1], 16 [rep. ibid., s. 2 ], 232, 235, 236, Part XX.1, 672.34 [ad. 1991, c. 43, s. 4], 672.54 [ad. idem], 686(1)(b)(iii), 687(1), 718.2 [ad. 1995, c. 22, s. 6], (a) [ad. idem], (ii) [am. 1997, c. 23, s. 17].
Authors Cited
Campbell, Kenneth L. “Psychological Blow Automatism: A Narrow Defence” (1980-81), 23 Crim. L.Q. 342.
Canada. Department of Justice. Proposals to amend the Criminal Code (general principles). Ottawa: Department of Justice Canada, 1993.
Canadian Psychiatric Association. Brief to the House of Commons Standing Committee on Justice and the Solicitor General. RE: Proposed Revisions for Automatism as Contained in the Draft, “Toward a New General Part for the Criminal Code of Canada”. Prepared by Drs. Maralyn MacKay and Nizar Ladha. Ottawa: 1992.
Grant, Isabel, Dorothy Chunn and Christine Boyle. The Law of Homicide, loose-leaf ed. Scarborough, Ont.: Carswell, 1994 (updated 1998, release 1).
Grant, Isabel and Laura Spitz. Case Comment on R. v. Parks (1993), 72 Can. Bar Rev. 224.
Halsbury’s Laws of England, vol. 11(1), 4th ed. (reissue). London: Butterworths, 1990.
Holland, Winnifred H. “Automatism and Criminal Responsibility” (1982-83), 25 Crim. L.Q. 95.
LaFave, Wayne R. and Austin W. Scott. Substantive Criminal Law, vol. 1. St. Paul, Minn.: West Publishing Co., 1986.
Sopinka, John, Sidney N. Lederman and Alan W. Bryant. The Law of Evidence in Canada. Toronto: Butterworths, 1992.
Stuart, Don. Canadian Criminal Law: A Treatise, 3rd ed. Scarborough, Ont.: Carswell, 1995.
Tollefson, Edwin A. and Bernard Starkman. Mental Disorder in Criminal Proceedings. Scarborough, Ont.: Carswell, 1993.
Williams, Glanville. Textbook of Criminal Law, 2nd ed. London: Stevens, 1983.
APPEAL from a judgment of the British Columbia Court of Appeal (1997), 86 B.C.A.C. 169, 142 W.A.C. 169, 113 C.C.C. (3d) 158, 6 C.R. (5th) 367, [1997] B.C.J. No. 179 (QL), dismissing the accused’s appeal from his conviction of manslaughter by
Brenner J. Appeal dismissed, Lamer C.J. and Iacobucci, Major and Binnie JJ. dissenting.
APPEAL from a judgment of the British Columbia Court of Appeal (1997), 89 B.C.A.C. 139, 145 W.A.C. 139, [1997] B.C.J. No. 694 (QL), dismissing the Crown’s appeal from the sentence imposed on the accused by Brenner J. Appeal dismissed.
David G. Butcher and Derek A. Brindle, for Bert Thomas Stone.
Gil D. McKinnon, Q.C., Ujjal Dosanjh, Q.C., and Marion Paruk, for Her Majesty the Queen.
Graham Garton, Q.C., for the intervener the Attorney General of Canada.
Gary T. Trotter, for the intervener the Attorney General for Ontario.
Written submissions only by Jack Watson, Q.C., for the intervener the Attorney General for Alberta.
The reasons of Lamer C.J. and Iacobucci, Major and Binnie JJ. were delivered by
//Binnie J.//
1 Binnie J. (dissenting as to appeal from conviction*) -- A fundamental principle of the criminal law is that no act can be a criminal offence unless it is performed or omitted voluntarily. In this case the appellant acknowledges that he killed his wife. He stabbed her 47 times with his knife in a frenzy. His defence was that he lost consciousness when his mind snapped under the weight of verbal abuse which the defence psychiatrist characterized as “exceptionally cruel” and “psychologically sadistic”. The trial judge ruled in favour of the appellant that “there is evidence of unconsciousness throughout the commission of the crime”, and the British Columbia Court of Appeal agreed ((1997), 86 B.C.A.C. 169, at p. 173) that “a properly instructed jury, acting reasonably, could find some form of automatism”.
2 The appellant had elected trial by jury. He says he was entitled to have the issue of voluntariness, thus properly raised, determined by the jury. He says that there was no proper legal basis for the courts in British Columbia to deprive him of the benefit of an evidentiary ruling which put in issue the Crown’s ability to prove the actus reus of the offence.
3 The trial judge ruled that the evidence of involuntariness was only relevant (if at all) to a defence of not criminally responsible by reason of mental disorder (NCRMD). This was upheld by the Court of Appeal. When it is appreciated that all of the experts agreed the appellant did not suffer from any condition that medicine would classify as a disease of the mind, it is perhaps not surprising that the jury found the accused to be sane. He was convicted of manslaughter. The contention of the appellant that the act of killing, while not the product of a mentally disordered mind, was nevertheless involuntary, was never put to the jury.
4 The appellant argues that the judicial reasoning that effectively took the issue of voluntariness away from the jury violates the presumption of his innocence and his entitlement to the benefit of a jury trial guaranteed by s. 11 (d) and (f) and is not saved by s. 1 of the Canadian Charter of Rights and Freedoms .
5 The appellant also objects to the compelled disclosure of his psychiatrist’s expert report to the Crown contrary, he says, to his claim of privilege. His argument is that the result of such disclosure was to conscript against him his own description of events to the defence psychiatrist, thereby violating his right to remain silent.
6 In my view, it follows from the concurrent findings in the courts below (that the appellant successfully put in issue his consciousness at the time of the offence) that he was entitled to the jury’s verdict on whether or not his conduct, though sane, was involuntary. That issue having been withdrawn from the jury, and the Crown thereby having been relieved of the one real challenge to its proof, the appellant is entitled to a new trial.
I. Facts
7 I do not propose to repeat Justice Bastarache’s summary of the facts except where necessary to explain our divergence in the result.
8 The prelude to the knife attack was a day-long drive from the Okanagan Valley to Vancouver, during which, according to the appellant, his wife created an explosive situation by her aggressive verbal attacks. The appellant had planned to take his sons out to dinner and a movie, but abandoned these plans because of his wife’s objection. The appellant instead visited briefly with his sons. His wife waited in the truck. According to the appellant, his wife accelerated her attack on him upon his return to the driver’s seat. She taunted him that his former wife had been “fucking all my friends” (while the two had been married) and that “[my sons] weren’t my kids at all”. As the verbal abuse continued, he said, “I can see she’s losing it”, so he pulled into a vacant lot and “she’s still yelling at me that I’m nothing but a piece of shit”. His wife then allegedly said she had told the police that he had been abusing her and that they were about to arrest him, and threatened to get a court order to force him out of their home leaving her in the house, collecting alimony and child support. He says she told him that she felt sick every time he touched her, that he was a “lousy fuck” with a small penis, and that she would never have sex with him again. As stated, a psychological report filed by the defence at trial characterized the comments attributed to Mrs. Stone as “exceptionally cruel, psychologically sadistic, and profoundly rejecting”.
9 The appellant finally pulled off the highway in Burnaby to a vacant lot and described sitting in the truck with his head down, listening to his wife, and thinking that he and his boys did not deserve to be treated this way and “it’s just kind of fading away”. From there, he said, he remembered only a “whooshing” sensation washing over him, from his feet to his head. According to his account, when subsequently his eyes focussed, he was staring straight ahead and felt something in his hand. He looked down and saw his wife slumped over on the seat. He was holding the hunting knife that he kept stored in the truck. His wife was dead, having been stabbed 47 times. The appellant says that, at that time, he had no memory of stabbing his wife.
10 After 10 or 15 minutes, the appellant put his wife’s body in a toolbox in the back of the truck and returned home. The next day, he sold some assets, settled some debts, and flew to Mexico. At trial the appellant recounted that one morning (while in Mexico), he awoke with the sensation of having his throat cut. In trying to recall what he had been dreaming about, the appellant remembered his wife’s being stabbed in the chest. While the appellant maintained in his evidence-in-chief that he did not remember picking up the knife or taking it from its sheath, he did admit in cross-examination, when confronted with prior statements attributed to him in the psychiatrist’s report, to a vague recollection through the dream of stabbing his wife twice in the chest before the “whooshing” sensation. His psychiatrist, Dr. Paul Janke, testified that the appellant had told him that, while in Mexico, he “became aware of a memory of having a knife in his hand and stabbing Donna Stone twice in the chest before having the ‘whooshing’ sensation . . . whenever we talked about the stabbing, it would be in the context of stabbing twice and, and then having the whooshing experience” (emphasis added). One of Dr. Janke’s tasks was to separate out the effects of amnesia after the event from the alleged unconsciousness during the events themselves, for as noted by Lord Denning in Bratty v. Attorney-General for Northern Ireland, [1963] A.C. 386, at p. 409: “Loss of memory afterwards is never a defence in itself, so long as he was conscious at the time”.
11 Roughly six weeks after the stabbing, the appellant returned to Canada and surrendered to police.
12 At trial, Dr. Janke testified for the defence that, at the time of the stabbing, the appellant was in a dissociative state caused by “extreme” psychological blows:
Q But the comments that you reviewed and that are in evidence between Mrs. Stone and Mr. Stone aren’t such, are they, of such an extraordinary nature that they might reasonably be presumed to affect the ordinary person?
A We -- I would be astonished if somebody told me that being, being informed that they were about to lose their home and all their possessions; that their, what they thought were their children by a former wife were actually the product of affairs that the wife was having; and ultimately being told that you had a small penis and were poor in bed, most men would find that an extraordinary blow. If somebody told me they weren’t upset by that, I would be concerned about it.
Q No question –
A Those are extreme --
Q -- that he was upset.
A No, those are extreme blows.
13 The defence was confronted with the decision of this Court in Rabey v. The Queen, [1980] 2 S.C.R. 513, which was said to hold that unless a state of automatism can be attributed on the evidence to some cause external to the mind of the accused, it must be related to a plea of insanity.
14 The appellant tried to run simultaneously both the non-insane and insane branches of the automatism plea, as well as provocation. He suggested, based on an obiter dictum in Rabey, supra, that the “psychological shock” inflicted on him was of so great a magnitude that it would have unhinged the ordinary person, thus qualifying as “externally” induced automatism which had nothing to do with a disease of the mind in any organic or other medical sense. He submitted in the alternative that if, contrary to the psychiatric evidence, the courts were to insist on characterizing his condition as a disease of the mind, then a finding of NCRMD would be consistent with Dr. Janke’s evidence that the unconscious nature of his conduct excluded an “appreciation” of the consequences.
II. Judgments
A. The Supreme Court of British Columbia
(1) The Evidential Ruling in the Appellant’s Favour
15 Brenner J. reasoned that the “defence” of automatism is only available where there is evidence of unconsciousness throughout the entire commission of a crime. While recognizing that there was some evidence before the court to the effect that the appellant recalled stabbing his wife twice in the chest, Brenner J. ultimately held that an accused’s having some recollection of what has occurred does not preclude the availability of the defence. That decided, he held, seemingly based on the entirety of the defence testimony, that there was evidence of unconsciousness throughout the commission of the offence and the accused had successfully laid a foundation for the plea of automatism. The relevant portion of his ruling is as follows:
In this case, it is my view that there is evidence of unconsciousness throughout the commission of the crime. The only evidence of recall is the recollection that came to the accused following a dream after he had gone to Mexico some days after the event.
That being the case, it seems to me that the defence has met the threshold test pursuant to which I must at least consider whether the defence of automatism of either the insane or non-insane variety should be left to the jury. [Emphasis added.]
(2) The Withdrawal of the Issue of Non-Insane Automatism from the Jury
16 Brenner J. considered that, in the absence of evidence to the contrary, the cause of the automatism (if it existed) must have been “internal” to the appellant’s brain. On this basis, he concluded that he was bound by R. v. MacLeod (1980), 52 C.C.C. (2d) 193, to withhold the defence of “non-insane automatism” from the jury. In MacLeod the British Columbia Court of Appeal had applied the Rabey analysis to an accused who claimed to have “dissociated” owing to an accumulation of stresses in his family life and, while dissociated, to have sexually assaulted a five-year-old child who suffered from cerebral palsy. The British Columbia Court of Appeal in MacLeod held that the accused was either insane or should be held criminally responsible for his actions notwithstanding the alleged automatism.
(3) The Jury Charge
17 Brenner J. referred the jury to the specific pieces of evidence particularly relevant to consideration of the automatism defence. In the course of this process, he highlighted the evidence of dissociation:
Dr. Janke, the forensic psychiatrist who testified for the defence, expressed the opinion that the accused was in a dissociative state when he killed his wife, and Dr. Murphy, the Crown forensic psychiatrist, expressed the opinion that the likelihood of the accused being in a dissociative state was very low.
You will recall that Dr. Janke explained to you what dissociation was. He explained the phenomenon as a situation where an individual’s thinking component and his judgment is separated from his body and his actions. He explained to you it was typically associated with some loss of memory, and I took from his evidence that the degree of memory loss will often or frequently depend on how deep the dissociative state.
. . .
He says, in his opinion, at the time the accused killed his wife, he did not have control over his actions, and a person in the accused’s state, in Dr. Janke’s opinion, would not appreciate the nature and quality of his act. [Emphasis added.]
18 Brenner J. concluded his instruction on this point by explaining the series of questions the jury should address:
If you are satisfied on a balance of probabilities that the evidence establishes that the accused was suffering from a disease of the mind, you must then determine whether the disease of the mind rendered him either incapable of appreciating the nature and quality of the act he was doing or incapable of knowing that the act was wrong.
We do not know, of course, on which aspects of these multi-faceted questions the accused failed to satisfy the jury. We only know that at the conclusion of their deliberations the following exchange took place:
REGISTRAR: Members of the jury, have you reached a verdict?
MR. FOREMAN: We have, my lord.
THE COURT: Mr. Foreman, do you find the accused criminally responsible or not criminally responsible by reason of mental disorder?
THE FOREMAN: We find that the defendant is criminally responsible.
THE COURT: Proceed with the next question, Madam Registrar.
REGISTRAR: Do you find the accused guilty or not guilty of second degree murder.
THE FOREMAN: Not guilty.
THE COURT: Thank you, Mr. Foreman.
Based on that verdict, I will direct that a verdict of guilty of the offence of manslaughter be entered. . . .
The jury was not told that if they concluded that the accused was not suffering from a disease of the mind they could nevertheless decide that the appellant’s actions were not voluntary and that such a finding, if made, would necessitate an acquittal. The jury was told, in effect, that notwithstanding the trial judge’s ruling that there was evidence of “unconsciousness throughout the commission of the crime”, the minimum verdict was manslaughter.
(4) Compelled Disclosure of the Expert Report to Crown
19 At the conclusion of the defence opening address, the Crown asked that the trial judge order that the defence provide them with a copy of Dr. Janke’s report. Defence counsel objected that he had no obligation to disclose the report until Dr. Janke was called to the witness stand.
20 Brenner J. ordered that the report be produced stating that “the Crown ought to be in a position of being able to explore on cross-examination with the accused whatever statements Dr. Janke may or may not have relied upon in his report”.
B. Britis