Rabey v. R.

Rabey v. R.
Collection
Supreme Court Judgments
Date
1980-07-18
Report
[1980] 2 SCR 513
Judges
Martland, Ronald; Ritchie, Roland Almon; Pigeon, Louis-Philippe; Dickson, Robert George Brian; Beetz, Jean; Estey, Willard Zebedee; McIntyre, William Rogers
On appeal from
Ontario
Subjects
Criminal law
Decision Content
Supreme Court of Canada
Rabey v. R., [1980] 2 S.C.R. 513
Date: 1980-07-18
Wayne Kenneth Rabey (Plaintiff) Appellant;
and
Her Majesty The Queen (Defendant) Respondent.
1980: February 6; 1980: July 18.
Present: Martland, Ritchie, Pigeon, Dickson, Beetz, Estey and McIntyre JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Criminal law—Defence—Non-insane automatism—Insanity—Disease of the mind—Question of law—Criminal Code, R.S.C. 1970, c. C-34, ss. 16, 542, 545.
At the time of the alleged offence, the appellant, twenty years of age, was a student at the University of Toronto and shared a number of classes with the complainant for whom he began to develop strong feelings that were not reciprocated. While flipping through the complainant’s books, the appellant found a letter she had written to a female friend in which she described him as one in a “bunch of nothings”. The appellant was hurt and angry as he read the letter. The following morning, he removed a rock sample of galena from the geology lab. At noon, he met the complainant by chance and, as they were talking to each other, the appellant suddenly grabbed her around the arms and struck her on the head. She lost consciousness momentarily. When she recovered consciousness, he was choking her… The appellant advanced the defence of non-insane automatism. He was acquitted at trial, the trial judge finding that the appellant was not insane within the meaning of s. 16 of the Criminal Code and that he had acted in a state of automatism brought about by an external cause. On appeal to the Ontario Court of Appeal, the acquittal was reversed and a new trial ordered, the Court holding that the psychological blow suffered was not an externally originating cause of the dissociative state.
Held (Dickson, Estey and Mclntyre JJ., dissenting): The appeal should be dismissed.
Per Martland, Ritchie, Pigeon and Beetz JJ.: The meaning of the word “automatism”, in any event so far as it is employed in the defence of non-insane automatism, is a term used to describe unconscious, involuntary behaviour, the state of a person who though capable of action is not conscious of what he is doing. What is said here is that, although the defence of non-insane automatism is available to the appellant, he was not suffering from a disease of the mind and was therefore not insane and could not be committed to an institution. The central question in deciding any case involving the defence of automatism is whether or not the accused was suffering from a disease of the mind. The opinions of psychiatrists go no further than characterizing the condition in which the appellant was found as being “a dissociative state” but it is clear that the question of whether or not such a state amounts to “a disease of the mind” is a question of law for the judge to determine. In general, the distinction to be drawn is between a malfunctioning of the mind arising from some cause that is primarily internal to the accused, as opposed to a malfunctioning of the mind, which is the transient effect produced by some specific external factor and which does not fall within the concept of disease of the mind. The ordinary stresses and disappointments of life which are the common lot of mankind do not constitute an external cause constituting an explanation for a malfunctioning of the mind which takes it out of the category of a “disease of the mind”.
Here, it seems that the accused’s infatuation with the complainant had created an abnormal condition in his mind under the influence of which he acted unnaturally and violently to an imagined slight to which a normal person would not have reacted in the same manner. The confinement to an institution does not involve gross unfairness to the appellant for, under ss. 545 and 547 of the Criminal Code, the Lieutenant-Governor may order the discharge of the person found not guilty.
Per Dickson, Estey and Mclntyre JJ., dissenting: The issue in this appeal is whether automatism resulting from a “psychological blow” is available to an accused in answer to a charge of causing bodily harm with intent to wound. The theory of the defence was that the appellant’s behavior was caused by a psychological blow, an intense emotional shock which induced a “dissociative state”, during which for a time, the appellant was neither conscious of nor able to control his conduct, so that it was involuntary. This is sometimes spoken of as non-insane automatism, to distinguish it from the cases in which the state of automatism is attributable to disease of the mind. The defences of automatism and insanity are separate and distinct. In the case of insanity, the defect of the understanding must originate in the disease of the mind, whereas in the defence of automatism the criminal law is not concerned with any question of the disease of the mind. Here, medical examinations disclosed no evidence of neurological disease and no indication of psychotic process, and the Crown did not challenge the finding of automatism. The only question for decision is whether, having found automatism, the trial judge was bound in law to find that the appellant was a proper subject for indefinite detention as an insane person or, in other words, whether the accused, having acted in a state of unconsciousness while in a transitory mental state, was suffering from a disease of the mind and had to be committed to an institution.
The first principle fundamental to our criminal law which governs this appeal is that no act can be a criminal offence unless it is done voluntarily. The prosecution must prove the state of mind of the accused. The circumstances are normally such as to permit a presumption of volition and mental capacity. That is not so when the accused, as here, has placed before the court evidence sufficient to raise an issue that he was unconscious of his actions at the time of the alleged offence. No burden of proof is imposed upon an accused raising such defence beyond pointing to facts which indicate the existence of such a condition.
The second principle is that no person found not guilty by reason of insanity should be committed to a hospital for the criminally insane unless he suffers from disease of the mind in need of treatment or likely to recur. Here, on medical evidence accepted by the trial judge, the prospect of a recurrence of dissociation is extremely remote. There was no finding that the appellant suffered from psychosis, neurosis or personality disorder. He does not have an organic disease of the brain. This was an isolated event. The appellant has already spent several weeks in a mental institution undergoing psychiatric, neurological and psychological assessment, the result of which did not indicate need for treatment. There are undoubtedly policy considerations to be considered, such as the in terrorem argument that the floodgates will be raised if psychological blow automatism is recognized in law.
There are competing policy interests. Where the condition is transient rather than persistent, unlikely to recur, not in need of treatment and not the result of self-induced intoxication, the policy objectives in finding such a person insane are not served. Such a person is not a danger to himself or to society generally. The notion cannot be accepted, that an extraordinary external event, i.e., an intense emotional shock, can cause a state of dissociation or automatism, if, and only if, all normal persons subjected to that sort of shock would react in that way. The inquiry is directed to the accused’s actual state of mind. It is his subjective mental condition with which the law is concerned. Nor can it be accepted that whether an automatic state is an insane reaction or a sane reaction may depend upon the intensity of the shock. In principle, the defence of automatism should be available whenever there is evidence of unconsciousness throughout the commission of the crime that cannot be attributed to fault or negligence on the part of the accused. Such evidence should be supported by expert medical opinion that the accused did not feign memory loss and that there is no underlying pathological condition which points to a disease requiring detention and treatment.
[R. v. K. (1970), 3 C.C.C. (2d) 84; Bratty v. A.G. Northern Ireland, [1963] A.C. 386, referred to.]
APPEAL from a judgment of the Court of Appeal for Ontario[1], allowing an appeal from the acquittal of the appellant by a Country Court judge and ordering a new trial. Appeal dismissed, Dickson, Estey and Mclntyre JJ. dissenting.
Michael A. Wadsworth, for the appellant.
Douglas C. Hunt, for the respondent.
The judgment of Martland, Ritchie, Pigeon and Beetz JJ. was delivered by
RITCHIE J.—This is an appeal from a judgment of the Court of Appeal for Ontario whereby that Court set aside the appellant’s acquittal at trial for “causing bodily harm with intent to wound”. The appellant had, at the same time, been charged with having a rock in his possession “for the purpose of committing the offence of wounding” but no appeal was taken from his acquittal on this charge.
The circumstances under which the alleged offences were committed are recounted with accuracy in the reasons for judgment prepared for delivery by my brother Dickson in this case which I have had the advantage of reading and also in the judgment delivered by Mr. Justice Martin on behalf of the Court of Appeal for Ontario. An “Agreed Statement of Facts” has also been filed as a part of the record in these proceedings and, when read together with the factual analyses provided by the judges concerned, it becomes plain that there is no dispute as to the behaviour of the appellant on February 28 and March 1, 1974. On the former date, he had agreed to help a girl friend with some work which she was doing for a geology class of which they were both members and in the course of the afternoon he had access, while he was alone, to the girl’s notebook in which he found a letter written to one of her friends disclosing that she considered other members of the opposite sex more exciting and desirable than the appellant to whom she referred somewhat obliquely as “a nothing”.
It appears to me to be important to note at this stage that it is agreed by paragraph 5 of the Agreed Statement of Facts that “The appellant had never dated any other girl for any length of time and had only a minimal amount of sexual experience. An introvert, he was infatuated with the attractive outgoing” (girl). In any event, the appellant took the letter out of his friend’s notebook and taking it home with him he appears to have brooded on it during the evening and underlined certain portions.
On the following day (March 1), the appellant had arranged to watch a friend play a game of squash at about noon and on his way to the squash courts “quite by chance” he met his girl friend and asked her to join him; when they reached the squash court, however, they entered a gallery from which to view the players but no one was playing and they started downstairs towards the locker area but on reaching the foot of the stairs the appellant asked the girl what she thought of a mutual friend and upon her replying that he was “just a friend”, the appellant asked what she thought of him and it was when she said that he was a friend too that he hit her on the head with a rock wrapped in cloth which he had brought from the geology laboratory that morning—the next thing the girl knew was that the appellant was kneeling on the floor with his hands around her neck choking her and crying out “You bitch”, “You bitch”. I have found it necessary to recite the facts in skeletal form in order to illustrate the background against which the defence of non-insane automatism was advanced on behalf of the appellant.
It should be observed also that the appellant was subjected to a number of interviews with psychiatrists with the result that the courts have found themselves involved in the shadowy area of mental disorders concerning which it is not surprising to find that there are wide differences in opinion amongst the “experts”. The meaning of the word “automatism”, in any event so far as it is employed in the defence of non-insane automatism, has, in my opinion, been satisfactorily defined by Mr. Justice Lacourcière of the Court of Appeal of Ontario in the case of R. v. K.[2]:
Automatism is a term used to describe unconscious, involuntary behaviour, the state of a person who, though capable of action is not conscious of what he is doing. It means an unconscious involuntary act where the mind does not go with what is being done.
The defence of automatism as used in the present case of course involves a consideration of the provisions of s. 16 of the Criminal Code which read as follows:
16. (1) No person shall be convicted of an offence in respect of an act or omission on his part while he was insane.
(2) For the purposes of this section a person is insane when he is in a state of natural imbecility or has disease of the mind to an extent that renders him incapable of appreciating the nature and quality of an act or omission or of knowing that an act or omission is wrong.
(3) A person who has specific delusions, but is in other respects sane, shall not be acquitted on the ground of insanity unless the delusions caused him to believe in the existence of a state of things that, if it existed, would have justified or excused his act or omission.
(4) Every one shall, until the contrary is proved, be presumed to be and to have been sane. 1953-54, c. 51, s. 16.
What is said here is that although at the relevant time the appellant was in a state where, though capable of action he was not conscious of what he was doing, and more particularly that he was not suffering from a disease of the mind and was therefore not insane. The central question in deciding any case involving the defence of automatism is whether or not the accused was suffering from a disease of the mind. The opinions of psychiatrists go no further than characterizing the condition in which the appellant was found as being “a dissociative state” but it is clear, at least since the case of Bratty v. A.G. Northern Ireland[3], that the question of whether or not such a state amounts to “a disease of the mind” is a question of law for the judge to determine. The general rule is that it is for the judge as a question of law to decide what constitutes a “disease of the mind”, but that the question of whether or not the facts in a given case disclose the existence of such a disease is a question to be determined by the trier of fact. I think it would be superfluous for me to retrace the line of authorities in this area as they have been so exhaustively discussed by my brother Dickson and also by Mr. Justice Martin of the Court of Appeal and by the learned trial judge. I am satisfied in this regard to adopt the following passages from the reasons for judgment of Mr. Justice Martin which are now conveniently reported in (1977), 40 C.R.N.S. 46. He there said at p. 62:
In general, the distinction to be drawn is between a malfunctioning of the mind arising from some cause that is primarily internal to the accused, having its source in his psychological or emotional makeup, or in some organic pathology, as opposed to a malfunctioning of the mind, which is the transient effect produced by some specific external factor such as, for example, concussion. Any malfunctioning of the mind or mental disorder having its source primarily in some subjective condition or weakness internal to the accused (whether fully understood or not) may be a ‘disease of the mind’ if it prevents the accused from knowing what he is doing, but transient disturbances of consciousness due to certain specific external factors do not fall within the concept of disease of the mind. (For an interesting and helpful discussion see ‘The Concept of Mental Disease In Criminal Law Insanity Tests’ 33 University of Chicago L. Rev. 229, by Herbert Fingarette. Particular transient mental disturbances may not, however, be capable of being properly categorized in relation to whether they constitute ‘disease of the mind’ on the basis of a generalized statement and must be decided on a case-by-case basis.
The same learned judge later stated in the same judgment at p. 68:
In my view, the ordinary stresses and disappointments of life which are the common lot of mankind do not constitute an external cause constituting an explanation for a malfunctioning of the mind which takes it out of the category of a ‘disease of the mind’. To hold otherwise would deprive the concept of an external factor of any real meaning. In my view, the emotional stress suffered by the respondent as a result of his disappointment with respect to Miss X cannot be said to be an external factor producing the automatism within the authorities, and the dissociative state must be considered as having its source primarily in the respondent’s psychological or emotional make-up. I conclude, therefore, that, in the circumstances of this case, the dissociative state in which the respondent was said to be constituted a ‘disease of the mind’. I leave aside, until it becomes necessary to decide them, cases where a dissociative state has resulted from emotional shock without physical injury, resulting from such causes, for example, as being involved in a serious accident although no physical injury has resulted; being the victim of a murderous attack with an uplifted knife, notwithstanding that the victim has managed to escape physical injury; seeing a loved one murdered or seriously assaulted, and like situations. Such extraordinary external events might reasonably be presumed to affect the average normal person without reference to the subjective makeup of the person exposed to such experience.
For the above reasons I am of the opinion, with deference, that the learned trial judge erred in holding that the so-called ‘psychological blow’, which was said to have caused the dissociative state, was, in the circumstances of this case, an externally originating cause, and she should have held that if the respondent was in a dissociative state at the time he struck Miss X he suffered from ‘disease of the mind’. A new trial must, accordingly, be had on count 2.
In my view, a possible key to the cause of the malfunctioning of the appellant’s mind at the time of the alleged assault is to be found in paragraph 5 of the Agreed Statement of Facts to which I have already referred, and where it is said of him:
5. The Appellant had never dated any other girl for any length of time, and had only a minimal amount of sexual experience. An introvert, he was infatuated with the attractive, out-going…
It seems to me that his infatuation with this young woman had created an abnormal condition in his mind under the influence of which he acted unnaturally and violently to an imagined slight to which a normal person would not have reacted in the same manner.
It was contended on behalf of the appellant that a finding of disease of the mind and consequently of insanity in the present case would involve gross unfairness to the appellant who could be subject to the provisions of s. 545 of the Criminal Code and thus detained at the pleasure of the Lieutenant-Governor of the province. That such a result does not carry with it the hardship contended for is illustrated by the following passage from the reasons for judgment of Mr. Justice Martin at p. 69:
It would, of course, be unthinkable that a person found not guilty on account of insanity because of a transient mental disorder constituting a disease of the mind, who was not dangerous and who required no further treatment, should continue to be confined. The present provisions of s. 545(1)(b) [re-en. 1972, c.13, s.45], however, authorize the Lieutenant-Governor to make an order if, in his opinion, it would be in the best interest of the accused and not contrary to the interest of the public for the discharge of a person found not guilty on account of insanity, either absolutely or subject to such conditions as he prescribes. In addition to the periodic reviews required to be made by a board of review appointed pursuant to s. 547(1) of the Code, the Lieutenant-Governor under s. 547(6) of the Code may request the board of review to review the case of any person found not guilty on account of insanity, in which case the board of review is required to report forthwith whether such person has recovered and, if so, whether in its opinion it is in the interest of the public and of that person for the Lieutenant-Governor to order that he be discharged absolutely or subject to such conditions as the Lieutenant-Governor may prescribe.
For all these reasons, as well as for those expressed by Mr. Justice Martin in the Court of Appeal for Ontario, I would dismiss the appeal and dispose of the matter in the manner proposed by him. The reasons of Dickson, Estey and Mclntyre JJ. were delivered by
DICKSON J. (dissenting)—The automatism “defence” has come into considerable prominence in recent years. Although the word “automatism” made its way but lately to the legal stage, it is basic principle that absence of volition in respect of the act involved is always a defence to a crime. A defence that the act is involuntary entitles the accused to a complete and unqualified acquittal. That the defence of automatism exists as a middle ground between criminal responsibility and legal insanity is beyond question. Although spoken as a defence, in the sense that it is raised by the accused, the Crown always bears the burden of proving a voluntary act.
The issue in this appeal is whether automatism resulting from a “psychological blow” is available to an accused in answer to a charge of causing bodily harm with intent to wound. The appellant, Wayne Kenneth Rabey, suddenly and without warning assaulted a fellow student and friend, causing her injury. The theory of the defence was that his behaviour was caused by a psychological blow, an intense emotional shock which induced a “dissociative state”, during which for a time, the appellant was neither conscious of, nor able to control his conduct, so that it was involuntary. This is sometimes spoken of as non-insane automatism, to distinguish it from cases in which the state of automatism is attributable to disease of the mind.
At common law, a person who engaged in what would otherwise have been criminal conduct was not guilty of a crime if he did so in a state of unconsciousness or semi-consciousness. Nor was he responsible if he was, by reason of disease of the mind or defect of reason, unable to appreciate the nature and quality of an act or that its commission was wrong. The fundamental precept of our criminal law is that a man is responsible only for his conscious, intentional acts. Devlin J. summed up the position in R. v. Kemp[4]:
In the eyes of the common law if a man is not responsible for his actions he is entitled to be acquitted by the ordinary form of acquittal, and it matters not whether his lack of responsibility was due to insanity or to any other cause. (at p. 251)
In order to protect the public from the dangerous criminally insane, the common law was changed by statute, long ago. By the Criminal Lunatics Act, 1800, and the Trial of Lunatics Act, 1883, and in Canada by the Criminal Code, a verdict of not guilty by reason of insanity results in committal to an institution. The purpose of the qualified verdict of acquittal is, of course, to ensure custody and treatment for those who might pose a continuing threat to society by reason of mental illness. In Canada, an accused who is acquitted on the ground of insanity is kept in strict custody in the place and in the manner that the Court directs, until the pleasure of the lieutenant-governor of the province is known [s. 542(2) of the Code].
The term “automatism” first appeared in the cases and in the periodical literature about thirty years ago. It is seen with increasing frequency. The defence of automatism is successfully invoked in circumstances of a criminal act committed unconsciously; and, in the past, has generally covered acts done while sleepwalking or under concussional states following head injuries.
The defence of automatism is, in some respects, akin to that of insanity. In both instances, the issue is whether an accused had sufficient control over, or knowledge of, his criminal act, to be held culpable. The two defences are, however, separate and distinct. As Professor Edwards observed in 21 Mod. L. Rev. 375, at p. 384:
…Both circumstances are concerned to prove mental irresponsibility, the essential difference… being that in the case of insanity the defect of the understanding must originate in a disease of the mind, whereas in the defence of automatism simpliciter the criminal law is not concerned with any question of the disease of the mind.
Although separate, the relationship between the two defences cannot be discounted. Automatism may be subsumed in the defence of insanity in cases in which the unconscious action of an accused can be traced to, or rooted in, a disease of the mind. Where that is so, the defence of insanity prevails. This is all felicitously expressed by Gresson P. in R. v. Cottle[5], at p. 1007:
It would appear that automatism raised as a defence to a criminal charge may be something quite different and distinct from insanity. In a particular case, it may be that the automatism relied on is due to some ‘disease of the mind’ but it is not necessarily so. Automatism, which strictly means action without conscious volition, has been adopted in criminal law as a term to denote conduct of which the doer is not conscious—in short doing something without knowledge of it, and without memory afterwards of having done it—a temporary eclipse of consciousness that nevertheless leaves the person so affected able to exercise bodily movements. In such a case, the action is one which the mind in its normal functioning does not control. This may be due to some ‘disease of the mind’ or it may not; it may happen with a perfectly healthy mind (e.g. in somnambulism which may be unaccompanied by an abnormality of mind), or it may occur where the mind is temporarily affected as the result of a blow, or by the influence of a drug or other intoxication. It may on the other hand be caused by an abnormal condition of the mind capable of being designated a mental disease. What are known as the M’Naghten Rules can have no application unless there is some form of ‘disease of the mind’, which is not necessarily present in all cases of automatism.
I
The Facts
At the time of the alleged offence, March 1, 1974, the appellant, twenty years of age, was a third year geology student in an honours science course at the University of Toronto. During the fall of 1973, he had spent some time with the complainant, also a third year science student, with whom he shared a number of classes. Along with two male classmates, the two studied and lunched together. Their social activities extended to walks together, dinner at one another’s homes and forays to a local bar. The appellant was somewhat shy and though he began to develop strong feelings for the attractive, out-going complainant, the sentiment was not reciprocated.
Plans for the ski trip to Quebec were made in November and the two planned to share a room. The complainant then invited another student to accompany them, creating a more platonic overtone. The three did in fact go to Quebec. The appellant testified that his relationship with the complainant deteriorated in early 1974. They no longer went on walks or visited for dinner. He still saw much of her at school.
On February 28, 1974, the complainant asked the appellant to assist her with an assignment. While she was absent a few moments, he flipped through her books to locate an equation and found a letter she had written to a female friend. He took the letter without her knowledge and read it at home that evening. The letter contains a number of references to sexual activity, both actual and wished for. Toward the end of the letter, this paragraph appears:
And for some reason all the guys I know want to go out with me and not be just friends any more so I can’t talk to them. I don’t want to go out with them and they know it so there is static in the air which is why I want to leave. Hell I can insult Wayne [the appellant] and Rick and they still bug me in class. I want to be alone or with just one good guy, not with a bunch of nothings.
The appellant was hurt and angry as he read the letter. He marked the passages referred to above with a pen.
The following morning, he removed a rock sample of galena from the geology lab. This was not unusual, for he was permitted to take samples home for purposes of study. At about noon, as he left to watch a squash match, he met the complainant. He testified that, “just for about a second, not even that, I felt sort of strange, I can’t describe how I felt”. He referred to it as a flash. He suggested she watch the match with him. The two proceeded to the squash court. The game was not in progress, so they left by the far stairwell. The appellant remembered asking her what she thought of Gord, a friend of theirs, hearing the reply that he was “just a friend”, and “really the next thing I remember was choking her and I remember the face was a funny colour and I remember seeing a lot of blood and I stopped”. He realized his hands were around her throat.
The complainant testified that following the question about Gord, the appellant then asked, “What do you think of me?” She replied, “You’re just a friend too”. As she opened a set of fire doors, she heard a crash and a “crumbling sound”. The appellant grabbed her around the arms and struck her on the head. She lost consciousness momentarily. When she recovered consciousness, he was choking her.
A student happened along, to whom the appellant said, “there’s been a terrible accident”. He was pale, sweating, glassy-eyed and had a frightened expression. When the witness looked over the railing and saw the complainant’s head, her body being under the stairs, the appellant said, “I’ve killed her and I am going to kill you too”. The appellant had only a partial recollection of his encounter with this witness.
A professor who was summoned testified that the appellant was very pale and bewildered. His description of the appellant was that he was perspiring; very, very nervous; distraught; upset; absolutely pale, no colour in his face; had moisture about the mouth; was shakey, jerky in his speech; absolutely bewildered, “out of it”. In reply, he said that although the appellant was halting in his speech, he was coherent. According to the nurse who next saw the appellant, he looked very upset. His pulse was very fast and not strong; he had a limp “clammy” appearance. She was unable to convince him he had not killed the complainant. To the Dean, the appellant said, “I don’t know why I started or why I stopped” and that, “he liked her better than anyone he had ever known”. The Dean testified the appellant spoke slowly in a confused sort of way, was very depressed and perhaps dazed.
To Constable Pollitt, the appellant said, “I did it, I know I did it, I just couldn’t stop hitting her”. The appellant gave a statement to the police, which reads in part:
I was asking her about the ballet, then I asked her if she liked this guy Gord. She said something about just as a friend, then I guess I hit her right then on the head, she was bleeding from the head and the next thing I remember it all happened so fast she was on the floor and I was sitting on top of her choking her. I thought she was dead there was blood everywhere, I just don’t know what happened.
The statement concluded:
I don’t know why I did it because I wasn’t even mad when this happened, and I don’t remember parts of what happened and when I realized what I had done I went to the nurse’s office and then to phone the police, I actually thought I’d killed somebody.
A number of character witnesses spoke highly of the appellant. Evidence was led that he had been a well behaved young man until this incident. He had never lost his temper or displayed signs of anger.
The complainant made a complete recovery within a short time.
II
The Medical Evidence
The appellant was remanded for psychiatric assessment and committed on March 5, 1974, to the Lakeshore Hospital. He was discharged on April 1, 1974. Detailed medical examinations disclosed no evidence of neurological disease. A psychological survey showed no indication of psychotic process. Dr. Slyfield conducted a number of interviews in the preparation of his report which concludes:
Psychological testing done by Mr. Wejtko indicates superior intellectual ability, a personality profile within the range of normality, and a tendency to use the psychological defenses of avoidance, repression and blocking. There was no evidence of psychotic disintegration.
If Wayne is telling the truth about his amnesia for most of the incident, then it is probable that his consciousness was dissociated at the time. His somnambulistic episode lends some support to this explanation. However, such a psychological mechanism need not indicate mental illness.
In the opinion of Dr. Orchard, assistant professor of psychiatry at the University of Toronto and witness for the defence, the appellant entered into a complete dissociative state, a disorder of consciousness which occurs as a result of part of the nervous system “shutting off.” A person in a severe dissociative state may be capable of performing physical actions without consciousness of such actions. When the appellant entered the dissociative state near the foot of the stairs, his mind “shut off”, and the return of consciousness was gradual. In Dr. Orchard’s opinion, the dissociative state which occurred was comparable to that produced by a physical blow; though caused by a “psychological blow”, certain physical effects were produced as observed by the student, the professor, the nurse and the Dean.
According to Dr. Orchard, the appellant was a young man of average health, or better than average health, with no pre-disposition to dissociate. The severe dissociative state, such as the appellant suffered, usually occurs in persons within the category of normal people. According to Dr. Orchard, it is rare for the severe dissociative state not caused by some underlying pathology to recur. In his opinion, there was only a very slight possibility that the appellant would suffer a recurrence of this disorder of consciousness. Dr. Orchard could find no indication of any pathological condition, which he defined as a “diseased condition or abnormally sick condition”. In his view, the dissociative state itself is an “occurrence”, not a mental illness and not a disease of the mind.
Dr. Rowsell who, like Dr. Orchard, is a psychiatrist of eminence, examined the appellant and testified on behalf of the Crown. In his opinion, the appellant was not in a dissociative state, but rather was a controlled young man who went into an extreme state of rage at that moment and, while in that state, struck the complainant on the head and choked her. Dr. Rowsell felt that if, contrary to his opinion, the appellant was in a dissociative state, he suffered from disease of the mind. According to Dr. Rowsell, consciousness is the distinguishing factor of mental life; the dissociative state is, by definition, a subdivision of hysterical neurosis, which is a definite mental illness. It is by definition a disorder of the mind. Dr. Rowsell did not suggest there was an underlying pathology which induced the alleged dissociative state. His report reads in part:
He shows no evidence of psychosis. (A psychosis is a disorder of thinking, feeling and behaviour, accompanied by a break with reality. This means that the individual is no longer able to interpret events, both internal and external, as would a person in good mental health.)…
There is no evidence of any organic brain disorder which would impair his consciousness. Therefore, the issue could be raised as to whether he was in an automatic state at the time of the event. In my opinion he was not. The psychiatric term for such a state would be Dissociative Reaction.
The evidence of Dr. Rowsell was that Rabey was conscious at the time of the act but suffered hysterical amnesia after the event, which Dr. Rowsell categorized as neurosis, a disease of the mind. Dr. Rowsell, unlike Dr. Orchard, was of the opinion that the appellant still had a psychiatric problem for which he required treatment to help him face up to what occurred. The treatment would take six months to a year, and could be undertaken on an out-patient basis. The prognosis was excellent.
Dr. Orchard, on the other hand, was of the view that inasmuch as the appellant had been a relatively normal person prior to the occurrence, likelihood of any recurrence was negligible. In Dr. Orchard’s words:
I think he has a pretty healthy personality and he will find a healthy way through all this. So I don’t see it in need of any treatment. I don’t see him as sick. I do agree with Dr. Rowsell he is not in any way a criminal type of person.
Dr. Rowsell considered that the appellant was not “in any way a criminal type of person”. Dr. Orchard shared that view.
III
At Trial and on Appeal
The trial judge, Dymond Co. Ct. J., rejected the Crown theory of planned revenge and the medical opinion advanced by Dr. Rowsell of tremendous rage and loss of memory from protective hysterical amnesia. Referring to R. v. K.[6] and Parnerkar v. The Queen[7], the judge concluded that a dissociative state brought on by psychological trauma can support a defence of automatism. The ruling in Parnerkar flowed from the medical evidence there, distinctly different from the evidence in this case.
On the issue of automatic behaviour the judge held:
…I am satisfied from the evidence given by Dr. Orchard, by the accused himself, and by the witnesses Pollard, Turner, Houston, Huggett and Degutis that there was evidence before the Court to paraphrase from Mr. Justice Kelly in Reg. v. Sproule, a decision released April 16th 1975, quote, and I’m paraphrasing: “upon which a jury properly instructed could have found that at the time of the wounding Rabey had been suffering from a malfunction of mind described as dissociation of the type brought about by an externally originating cause”. Such external cause would have been the words about Gord being a friend, which, tied with the knowledge of what the letter had said, constituted an external blow or trauma which resulted in Rabey’s being in a dissociative state. It can be compared with the blow to the skull causing a concussion where the skull is thin.
Elsewhere in the judgment the following passage appears:
I am therefore of the opinion that a defence of malfunction of the mind described as a dissociative state or a dissociation brought about by an externally operating cause is still open when the external cause is a psychological trauma, provided the other necessary conditions are met.
The “necessary conditions” to which the judge referred were:
1. There must be no disease of the mind, Bratty v. Attorney-General. In this case both psychiatrists have given as their opinion that at the time of the event the appellant was not suffering from any disease of the mind and no evidence was led to indicate that he was so suffering, other than Dr. Rowsell’s opinion that if he were in a dissociative state, it would be a disease of the mind.
2. T