R. v. Parks

R. v. Parks
Collection
Supreme Court Judgments
Date
1992-08-27
Report
[1992] 2 SCR 871
Case number
22073
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Stevenson, William; Iacobucci, Frank
On appeal from
Ontario
Subjects
Criminal law
Notes
SCC Case Information: 22073
Decision Content
R. v. Parks, [1992] 2 S.C.R. 871
Her Majesty The Queen Appellant
v.
Kenneth James Parks Respondent
Indexed as: R. v. Parks
File No.: 22073.
1992: January 27; 1992: August 27.
Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Stevenson* and Iacobucci JJ.
on appeal from the court of appeal for ontario
Criminal law ‑‑ Defences ‑‑ Automatism (sleepwalking) ‑‑ Respondent killing and injuring while asleep ‑‑ Whether sleepwalking should be classified as non‑insane automatism resulting in an acquittal or as a "disease of the mind" (insane automatism) giving rise to the special verdict of not guilty by reason of insanity.
Respondent attacked his parents‑in‑law, killing one and seriously injuring the other. The incident occurred at their home, some 23 km. from respondent's residence, during the night while they were both asleep in bed. Respondent had driven there by car. Immediately after the incident, the respondent went to a nearby police station, again driving his own car, and told them what he had done.
Respondent claimed to have been sleepwalking throughout the incident. He had always been a deep sleeper and had a great deal of trouble waking up. The year prior to the incident was particularly stressful for the respondent and his personal life suffered. His parents‑in‑law were aware of his problems, supported him and had excellent relations with him. Additionally, several members of his family suffer or have suffered from sleep problems such as sleepwalking, adult enuresis, nightmares and sleeptalking.
The respondent was charged with first degree murder and attempted murder. At the trial respondent presented a defence of automatism. The testimony of five expert witnesses called by the defence was not contradicted by the Crown. This evidence was that respondent was sleepwalking and that sleepwalking is not a neurological, psychiatric or other illness. The trial judge put only the defence of automatism to the jury, which acquitted respondent of first degree murder and then of second degree murder. The judge then acquitted the respondent of the charge of attempted murder. The Court of Appeal unanimously upheld the acquittal. At issue here is whether sleepwalking should be classified as non‑insane automatism resulting in an acquittal or as a "disease of the mind" (insane automatism), giving rise to the special verdict of not guilty by reason of insanity.
Held (Lamer C.J. and Cory J. dissenting in part): The appeal should be dismissed.
Per La Forest, L'Heureux‑Dubé and Gonthier JJ.: The trial judge correctly left only the defence of non‑insane automatism with the jury. On this issue the findings of Lamer C.J. on the evidence were agreed with, but the distinction in law between insane and non‑insane automatism, particularly as it relates to somnambulism, required further comment. In distinguishing between automatism and insanity the trial judge must consider not only the evidence but also overarching policy considerations.
Automatism, although spoken of as a "defence", is conceptually a sub‑set of the voluntariness requirement, which in turn is part of the actus reus component of criminal liability. An involuntary act, including one committed in an automatistic condition entitles an accused to an unqualified acquittal, unless the automatistic condition stems from a disease of the mind that has rendered the accused insane. In the latter case, the accused is not entitled to a full acquittal, but to a verdict of insanity.
When a defence of non‑insane automatism is raised by the accused, the trial judge must determine whether the defence should be left with the trier of fact. This will involve two discrete tasks. First, he or she must determine whether there is some evidence on the record to support leaving the defence with the jury. An evidential burden rests with the accused; the mere assertion of the defence will not suffice.
Given the proper foundation, the trial judge must then consider whether the condition alleged by the accused is, in law, non‑insane automatism. If the trial judge is satisfied that there is some evidence pointing to a condition that is in law non‑insane automatism, then the defence can be left with the jury. The issue for the jury is one of fact: did the accused suffer from or experience the alleged condition at the relevant time? Because the Crown must always prove that an accused has acted voluntarily, the onus rests on the prosecution at this stage to prove the absence of automatism beyond a reasonable doubt.
The question of law at issue here, given that the accused laid the proper foundation for the defence of automatism, was whether sleepwalking should be classified as non‑insane automatism or a disease of the mind, thereby leaving only the defence of insanity for the accused. Under the Criminal Code everyone is presumed to be and to have been sane until the contrary is proved. If the accused pleads automatism, the Crown is entitled to raise the issue of insanity, but must then bear the burden of proving that the condition in question stems from a disease of the mind.
"Disease of the mind" is a legal term and not a medical term of art but it contains a substantial medical component as well as a legal or policy component. The medical component of the term, generally, is medical opinion as to how the mental condition in question is viewed or characterized medically. The legal or policy component relates to (a) the scope of the exemption from criminal responsibility to be afforded by mental disorder or disturbance, and (b) the protection of the public by the control and treatment of persons who have caused serious harms while in a mentally disordered or disturbed state.
Because "disease of the mind" is a legal concept, a trial judge cannot rely blindly on medical opinion. The judge must determine what mental conditions are included within the term "disease of the mind", and whether there is any evidence that the accused suffered from an abnormal mental condition comprehended by that term.
Two distinct approaches to the policy component of insanity have emerged in automatism cases, the "continuing danger" and "internal cause" theories. The first theory holds that any condition likely to present recurring danger should be treated as insanity. The second holds that a condition stemming from the internal make‑up of the accused, rather than external factors, should lead to a finding of insanity. Though seemingly divergent, both theories stem from a concern for the protection of the public.
Though the second theory has gained a certain ascendency, it is merely an analytical tool and is not universal. In particular, it is not helpful in assessing the nature of a somnambulistic condition. The distinction between internal and external causes is blurred during sleep, and certain causes that are discounted for a subject who is awake may have entirely different effects on a sleeping person. As for the "continuing danger" test, it has been criticized as a general theory. However, the purpose of the insanity defence has always been the protection of the public against recurrent danger. As such, the possibility of recurrence, though not determinative, may be looked upon as a factor at the policy stage of the inquiry on the issue of insanity.
On the evidence there is no likelihood of recurrent violent somnambulism. Moreover, none of the other policy considerations relevant to the distinction between insanity and automatism, for example, the floodgates argument, or that automatism can be feigned, is of concern in this case.
Our system of justice is predicated on the notion that only those who act voluntarily should be punished under the criminal law. Here, no compelling policy factors preclude a finding that the accused's condition was one of non‑insane automatism. As the Crown did not meet its burden of proving that somnambulism stems from a disease of the mind, committal under s. 614(2) of the Criminal Code is precluded, and the accused should be acquitted. However, because the medical evidence in each case impacts at several stages of the policy inquiry and is significant in its own right, sleepwalking in a different case on different evidence might be found to be a disease of the mind.
This matter should not be sent back to the trial judge for the possible imposition of an order to keep the peace. The judiciary is not practically equipped to administer such an order, and a number of practical reasons, in addition to those of Sopinka and McLachlin JJ., preclude its consideration. To be effective, any order to keep the peace would have to be permanent. This would violate established practice (if not the law) regarding peace orders, which requires a defined period for the order. It would also be unrealistic to expect respondent's family, who are the only persons able to monitor the order, to complain of any breach of the peace. Finally, it would be unreasonable to expect the respondent to bear the cost of a life‑long surety necessary to enforce such an order.
Per McLachlin and Iacobucci JJ.: The reasons of Lamer C.J., except on the question of referring the matter back to the trial judge for consideration as to whether an order to keep the peace should be imposed, and the reasons of La Forest and Sopinka JJ. were agreed with. Notwithstanding the justice of an acquittal here and the evidence that a recurrence is highly unlikely, great care should be taken to avoid the possibility of a similar episode in the future. An order restricting a person's liberty on account of an act for which he or she has been acquitted, however, raises difficult issues. It is inappropriate that respondent, given his courageous efforts to re‑establish his life over the past five years, should now be embroiled in a further set of proceedings concerned not with his guilt or innocence, but with the maintenance of his liberty. Generally, the courts do not grant remedies affecting the liberty of the subject unless asked to do so by the Crown. In the absence of an application by the Crown, the case should not be remitted for consideration of further measures against the accused.
Per Sopinka J.: The trial judge, for the reasons given by both Lamer C.J. and La Forest J., did not err in leaving the defence of automatism rather than that of insanity with the jury. This matter, however, should not be referred back to the trial judge to consider an order to keep the peace.
The common law preventative justice power has significant limits. It cannot be exercised on the basis of mere speculation but requires a proven factual foundation which raises a probable ground to suspect future misbehaviour. The uncontroverted expert evidence in this case is wholly inconsistent with such a conclusion.
The extent and continued validity of this common law power has yet to be considered in light of the Charter. The imposition of restrictive conditions following an acquittal on the basis of a remote possibility of recurrence may well be contrary to s. 7.
There is still the possibility of an information being laid pursuant to s. 810 of the Criminal Code , subject to the evidentiary basis "that the informant has reasonable grounds for his fears" and to constitutional challenge. Such a proceeding, however, should not be initiated by this Court acting proprio motu.
If the respondent remains subject to the criminal justice system, the issue on cross‑appeal of whether a stay should be entered by reason of a violation of s. 11(b) of the Charter would have to be considered.
Per Lamer C.J. and Cory J. (dissenting in part): The testimony revealed three very important points: (1) the respondent was sleepwalking at the time of the incident; (2) sleepwalking is not a neurological, psychiatric or other illness but rather is a sleep disorder very common in children and also found in adults; and, (3) there is no medical treatment as such, apart from good health practices, especially as regards sleep. This expert evidence was not in any way contradicted by the Crown, which had the advice of experts who were present during the testimony given by the defence experts and whom it chose not to call.
The defence of automatism ‑‑ rather than that of insanity ‑‑ was properly put to the jury. For a defence of insanity to have been put to the jury, together with or instead of a defence of automatism, as the case may be, there would have had to have been in the record evidence tending to show that sleepwalking was the cause of the respondent's state of mind. That was not the case here. This was not to say, however, that sleepwalking could never be a disease of the mind in another case on different evidence.
Notwithstanding respondent's acquittal, some control could be exercised to prevent a possible recurrence in a situation like this through the common law power to make an order to keep the peace which is vested in any judge or magistrate. The rules of natural justice must be observed in any exercise of this power. Exploring, on notice, the possibility of some minimally intrusive conditions to assure the community's safety would not infringe s. 7 of the Charter. Any condition imposed must be rationally connected to the apprehended danger posed by the person and go no further than necessary to protect the public from this danger.
Cases Cited
By La Forest J.
Considered: Rabey v. The Queen, [1980] 2 S.C.R. 513; Bratty v. Attorney‑General for Northern Ireland, [1963] A.C. 386; Cooper v. The Queen, [1980] 1 S.C.R. 1149; R. v. Swain, [1991] 1 S.C.R. 933; referred to: R. v. Quick, [1973] 3 All E.R. 347; R. v. Hennessy, [1989] 2 All E.R. 9; R. v. Sullivan, [1984] A.C. 156; R. v. Burgess, [1991] 2 All E.R. 769; R. v. Edgar (1913), 109 L.T. 416.
By Sopinka J.
Referred to: Mackenzie v. Martin, [1954] S.C.R. 361; R. v. White, Ex p. Chohan, [1969] 1 C.C.C. 19; Re Regina and Shaben, [1972] 2 O.R. 613; Stevenson v. Saskatchewan (Minister of Justice), (Court of Queen's Bench, June 8, 1987, unreported).
By Lamer C.J. (dissenting in part)
Distinguished: R. v. Sullivan, [1983] 2 All E.R. 673; R. v. Burgess, [1991] 2 All E.R. 769; referred to: Cooper v. The Queen, [1980] 1 S.C.R. 1149; Rabey v. The Queen, [1980] 2 S.C.R. 513; R. v. Hartridge, [1967] 1 C.C.C. 346; Bratty v. Attorney‑General for Northern Ireland, [1963] A.C. 386; Ryan v. The Queen (1967), 40 A.L.J.R. 488; R. v. Cottle, [1958] N.Z.L.R. 999; R. v. Ngang, [1960] 3 S.A.L.R. 363; R. v. Tolson (1889), 23 Q.B.D. 168; H. M. Advocate v. Fraser (1878), 4 Couper 70; Mackenzie v. Martin, [1954] S.C.R. 361; Re Broomes and The Queen (1984), 12 C.C.C. (3d) 220.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 11 (b).
Criminal Code, R.S.C., 1985, c. C‑46, ss. 16(2) , (4) , 614(2) , 810 .
Justices of the Peace Act, 1361 (Eng.), 34 Edw. 3, c. 1.
Authors Cited
Black's Law Dictionary, 5th ed. St. Paul, Minn.: West Publishing Co., 1979.
Colvin, Eric. Principles of Criminal Law, 2nd ed. Calgary: Thomson Professional Publishing Canada, 1991.
Côté‑Harper, Gisèle, Antoine D. Manganas et Jean Turgeon. Droit pénal canadien, 3e éd. Cowansville: Yvon Blais Inc., 1989.
Fairall, Paul. "Automatism", [1981] 5 Crim. L.J. 335.
Fenwick, Peter. "Somnambulism and the Law: A Review" (1987), 5 Behavioral Sciences & the Law 343.
Gillies, Peter. Criminal Law. Sydney: Law Book Co., 1985.
Howard, Colin. Howard's Criminal Law, 5th ed. By Brent Fisse. Sydney: Law Book Co., 1990.
Martin, G. Arthur, Hon. "Mental Disorder and Criminal Responsibility in Canadian Law", in Stephen J. Hucker, Christopher D. Webster and Mark Ben‑Aron, eds., Mental Disorder and Criminal Responsibility. Toronto: Butterworths, 1981.
Mewett, Alan W. and Morris Manning. Criminal Law, 2nd ed. Toronto: Butterworths, 1985.
Roth, Sir Martin. "Modern Neurology and Psychiatry and the Problem of Criminal Responsibility", in Stephen J. Hucker, Christopher D. Webster and Mark H. Ben‑Aron, eds., Mental Disorder and Criminal Responsibility. Toronto: Butterworths, 1981.
Smith, John Cyril. Criminal Law, 6th ed. By J. C. Smith and Brian Hogan. London: Butterworths, 1988.
Stuart, Don. Canadian Criminal Law, 2nd ed. Toronto: Carswell, 1987.
Weller, Malcolm P. I. "Perchance to Dream" (1987), 137 New L.J. 52.
Williams, Glanville. Textbook of Criminal Law, 2nd ed. London: Stevens & Sons, 1983.
APPEAL from a judgment of the Ontario Court of Appeal (1990), 56 C.C.C. (3d) 449, dismissing an appeal from acquittal by Watt J. sitting with jury. Appeal dismissed, Lamer C.J. and Cory J. dissenting in part.
Gary T. Trotter and David Butt, for the appellant.
Marlys Edwardh, Clayton Ruby and Delmar Doucette, for the respondent.
//Lamer C.J.//
The reasons of Lamer C.J. and Cory J. were delivered by
Lamer C.J. (dissenting in part) -- In the small hours of the morning of May 24, 1987 the respondent, aged 23, attacked his parents‑in‑law, Barbara Ann and Denis Woods, killing his mother‑in‑law with a kitchen knife and seriously injuring his father‑in‑law. The incident occurred at the home of his parents‑in‑law while they were both asleep in bed. Their residence was 23 km. from that of the respondent, who went there by car. Immediately after the incident, the respondent went to the nearby police station, again driving his own car. He told the police:
I just killed someone with my bare hands; Oh my God, I just killed someone; I've just killed two people; My God, I've just killed two people with my hands; My God, I've just killed two people. My hands; I just killed two people. I killed them; I just killed two people; I've just killed my mother‑ and father‑in‑law. I stabbed and beat them to death. It's all my fault.
At the trial the respondent presented a defence of automatism, stating that at the time the incidents took place he was sleepwalking. The respondent has always slept very deeply and has always had a lot of trouble waking up. The year prior to the events was particularly stressful for the respondent. His job as a project coordinator for Revere Electric required him to work ten hours a day. In addition, during the preceding summer the respondent had placed bets on horse races which caused him financial problems. To obtain money he also stole some $30,000 from his employer. The following March his boss discovered the theft and dismissed him. Court proceedings were brought against him in this regard. His personal life suffered from all of this. However, his parents‑in‑law, who were aware of the situation, always supported him. He had excellent relations with them: he got on particularly well with his mother‑in‑law, who referred to him as the "gentle giant". His relations with his father‑in‑law were more distant, but still very good. In fact, a supper at their home was planned for May 24 to discuss the respondent's problems and the solutions he intended to suggest. Additionally, several members of his family suffer or have suffered from sleep problems such as sleepwalking, adult enuresis, nightmares and sleeptalking.
The respondent was charged with the first degree murder of Barbara Ann Woods and the attempted murder of Denis Woods.
The trial judge chose to put only the defence of automatism to the jury, which first acquitted the respondent of first degree murder and then of second degree murder. The judge also acquitted the respondent of the charge of attempted murder for the same reasons. The Court of Appeal unanimously upheld the acquittal.
Judgments Below
Court of Appeal (1990), 56 C.C.C. (3d) 449
The Court of Appeal affirmed the trial judgment, holding that the trial judge had properly put the defence of automatism rather than a defence of insanity to the jury. The Court of Appeal relied on the definition of "disease of the mind" by Dickson J. (as he then was) in Cooper v. The Queen, [1980] 1 S.C.R. 1149, at p. 1159:
In summary, one might say that in a legal sense "disease of the mind" embraces any illness, disorder or abnormal condition which impairs the human mind and its functioning, excluding however, self‑induced states caused by alcohol or drugs, as well as transitory mental states such as hysteria or concussion.
Galligan J.A. concluded from this that for there to be a "disease of the mind" within the meaning of s. 16(2) of the Criminal Code, R.S.C. 1970, c. C-34, "the impairment of the mind" must be caused by illness, a disorder or an abnormal condition. The court, at p. 468, held that it was not sleepwalking which created the state of mind in which the respondent found himself at the time of the incident, but sleep, and sleep is a normal condition:
Accepting the medical evidence, the respondent's mind and its functioning must have been impaired at the relevant time but sleep-walking did not impair it. The cause was the natural condition, sleep.
Accordingly, in Galligan J.A.'s view, for a defence of insanity to have been left with the jury the Crown would have had to present evidence that sleepwalking was the cause of the respondent's state of mind. That is not what the court held. The Court of Appeal therefore dismissed the appeal.
Issue
Did the Ontario Court of Appeal err in law in holding that the condition of sleepwalking should be classified as non‑insane automatism resulting in an acquittal instead of being classified as a "disease of the mind" (insane automatism), giving rise to the special verdict of not guilty by reason of insanity?
Analysis
This Court has only ruled on sleepwalking in an obiter dictum in Rabey v. The Queen, [1980] 2 S.C.R. 513. The Court found that sleepwalking was not a "disease of the mind" in the legal sense of the term and gave rise to a defence of automatism. Should the Court maintain this position?
In Black's Law Dictionary (5th ed. 1979) automatism is defined as follows:
Behavior performed in a state of mental unconsciousness or dissociation without full awareness, i.e., somnambulism, fugues. Term is applied to actions or conduct of an individual apparently occurring without will, purpose, or reasoned intention on his part; a condition sometimes observed in persons who, without being actually insane, suffer from an obscuration of the mental faculties, loss of volition or of memory, or kindred affections . . . .
In Rabey this Court affirmed the judgment of the Ontario Court of Appeal (1977), 37 C.C.C. (2d) 461, in which Martin J.A. defined the expression "disease of the mind" at pp. 472-73:
"Disease of the mind" is a legal term, not a medical term of art; although a legal concept, it contains a substantial medical component as well as a legal or policy component.
The legal or policy component relates to (a) the scope of the exemption from criminal responsibility to be afforded by mental disorder or disturbance, and (b) the protection of the public by the control and treatment of persons who have caused serious harms while in a mentally disordered or disturbed state. The medical component of the term, generally, is medical opinion as to how the mental condition in question is viewed or characterized medically. Since the medical component of the term reflects or should reflect the state of medical knowledge at a given time, the concept of "disease of the mind" is capable of evolving with increased medical knowledge with respect to mental disorder or disturbance.
As Martin J.A. pointed out at p. 477, Canadian and foreign courts and authors have recognized that sleepwalking is not a disease of the mind:
Sleep‑walking appears to fall into a separate category. Unconscious behaviour in a state of somnambulism is non‑insane automatism . . . .
In Canada, see also R. v. Hartridge, [1967] 1 C.C.C. 346 (Sask. C.A.).
In Britain, Lord Denning in Bratty v. Attorney-General for Northern Ireland, [1963] A.C. 386, at p. 409, recognized that sleepwalking gave rise to a defence of automatism:
No act is punishable if it is done involuntarily: and an involuntary act in this context ‑‑ some people nowadays prefer to speak of it as "automatism" ‑‑ means an act which is done by the muscles without any control by the mind, such as a spasm, a reflex action or a convulsion; or an act done by a person who is not conscious of what he is doing, such as an act done whilst suffering from concussion or whilst sleep‑walking.
Other foreign decisions have recognized the same principle: Ryan v. The Queen (1967), 40 A.L.J.R. 488; R. v. Cottle, [1958] N.Z.L.R. 999; R. v. Ngang, [1960] 3 S.A.L.R. 363; R. v. Tolson (1889), 23 Q.B.D. 168; H. M. Advocate v. Fraser (1878), 4 Couper 70.
However, two British decisions seem to go against this line of authority: R. v. Sullivan, [1983] 2 All E.R. 673, and R. v. Burgess, [1991] 2 All E.R. 769. The comment in Sullivan at p. 677 was obiter, since the case concerned epilepsy:
If the effect of a disease is to impair these faculties so severely as to have either of the consequences referred to in the latter part of the [M`Naghten] rules, it matters not whether the aetiology of the impairment is organic, as in epilepsy, or functional, or whether the impairment itself is permanent or is transient and intermittent, provided that it subsisted at the time of commission of the act.
Some writers have interpreted this obiter as an indication that future cases of sleepwalking would only lead to a defence of insanity:
Although sleep‑walkers have always received an absolute acquittal for what they do, no social inconvenience has hitherto resulted. There seems to be no recorded instance of a sleep‑walker doing injury a further time after being acquitted. However, since the decision in Sullivan, to be discussed in the next section, it seems very likely that sleepwalkers will in future find themselves saddled with an insanity verdict.
(Williams, Textbook of Criminal Law (2nd ed. 1983), at p. 666.)
However, the evidence in the case at bar does not indicate the presence of an illness. Accordingly, I do not believe that this obiter can be applied to sleepwalking cases such as that of Mr. Parks. Burgess cannot be applied here for the same reason, but we will return to it later.
The following scholarly analysis may be consulted: Côté‑Harper, Manganas, Turgeon, Droit pénal canadien (3rd ed. 1989), at p. 473; Martin, "Mental Disorder and Criminal Responsibility in Canadian Law", in Hucker, Webster and Ben-Aron, eds., Mental Disorder and Criminal Responsibility (1981), at p. 23; Mewett and Manning, Criminal Law (2nd ed. 1985), at p. 301; Gillies, Criminal Law, at p. 205, Howard's Criminal Law (5th ed. 1990), at pp. 424‑25; Smith and Hogan, Criminal Law (6th ed. 1988), at pp. 40 and 42; Williams, supra, at pp. 665‑66; Fairall, "Automatism", [1981] 5 Crim. L.J. 335, at pp. 341‑42, Weller, "Perchance to Dream" (1987), 137 New L.J. 52.
In the case at bar the trial judge first reviewed the case law and scholarly analysis and said he did not intend to go against it:
In Rabey, supra, Martin J.A. considered somnambulism or sleep‑walking to be a special category or case of non‑insane automatism, one that perhaps could not be justified in accordance with a strict application of principles invoked to determine whether a condition from which an accused suffers amounts to "a disease of the mind" within s‑s. 16(2) of the Criminal Code . Quite simply put, and notwithstanding that the observations concerning the legal characterization of sleep‑walking as a separate category of non‑insane automatism would not appear to have been necessary to a decision of the issue on appeal in Rabey, supra, I am not prepared to depart from the pronouncement of such an eminent authority as Martin J.A. on matters concerning the scope of criminal responsibility. The statement there made is, as one might expect, amply supported by the jurisprudence and academic writings upon the issue.
He then considered the facts of the instant case:
In the circumstances of the present case, it is doubtful whether the sleep disorder from which the accused suffers would constitute a disease of the mind under s‑s. 16(2) in accordance with general principle.
I therefore propose to review the evidence in this matter. A large part of the defence evidence in this case was medical evidence. Five physicians were heard: Dr. Roger James Broughton, a neurophysiologist and specialist in sleep and sleep disorders, Dr. John Gordon Edmeads, a neurologist, Dr. Ronald Frederick Billings, a psychiatrist, Dr. Robert Wood Hill, a forensic psychiatrist, and finally, Dr. Frank Raymond Ervin, a neurologist and psychiatrist.
The medical evidence in the case at bar showed that the respondent was in fact sleepwalking when he committed the acts with which he is charged. All the expert witnesses called by the defence said that in their opinion Parks was sleepwalking when the events occurred. This is what Dr. Broughton said:
Q. . . . assuming for a moment that Mr. Parks caused the death of Barbara Woods, did you, sir, reach an opinion as to his condition at the time he caused that death?
A. Yes. My opinion is that he did it during a sleepwalking episode.
Though sceptical at the outset, the expert witnesses unanimously stated that at the time of the incidents the respondent was not suffering from any mental illness and that, medically speaking, sleepwalking is not regarded as an illness, whether physical, mental or neurological:
Q. Dr. Billings, just a couple more questions. In conclusion, if I can bring you to some global conclusion for a moment, and leaving aside sleepwalking itself, on May the 24th is it your opinion, or do you have an opinion as to whether or not Mr. Parks suffered from any mental illness?
A. On May 24th?
Q. Yes.
A. No.
Q. Dealing now with sleepwalking, from the perspective of general psychiatry, is sleepwalking viewed as a neurological disease?
A. From a psychiatrist's point of view?
Q. Yes, from a psychiatrist's point of view.
A. No.
Q. Is it viewed as something that is causally related to mental illness?
A. Can cause mental illness?
Q. No. Is sleepwalking ‑‑
A. ‑‑ a result of mental illness?
Q. ‑‑ a result of mental illness?
A. No.
Q. Is sleepwalking a part of any mental illness?
A. No.
Q. In your opinion, Dr. Billings, is sleepwalking a disease of the mind?
A. No, I would not call it a disease.
They also unanimously stated that a person who is sleepwalking cannot think, reflect or perform voluntary acts:
Q. Is there any evidence that a person could formulate a plan while they were awake and then in some way ensure that they carry it out in their sleep?
A. No, absolutely not. No. Probably the most striking feature of what we know of what goes on in the mind during sleep is that it's very independent of waking mentation in terms of its objectives and so forth. There is a lack of control of directing our minds in sleep compared to wakefulness. In the waking state, of course, we often voluntarily plan things, what we call volition ‑ that is, we decide to do this as opposed to that ‑ and there is no evidence that this occurs during the sleepwalking episode. There usually is ‑ well, they are precipitated. They are part of an arousal, an incomplete arousal process during which all investigators have concluded that volution [sic] is not present.
. . .
Q. And assuming he was sleepwalking at the time, would he have the capacity to intend?
A. No.
Q. Would he have appreciated what he was doing?
A. No, he would not.
Q. Would he have understood the consequences of what he was doing?
A. No, he would not.
Q. Would he have been able to stop what he was doing?
A. No, I do not believe that he would. I think it would all have been an unconscious activity, uncontrolled and unmeditated.
The evidence also disclosed that sleepwalking was very common, almost universal, among children, and that 2 to 2.5% of "normal" adults had sleepwalked at least once. Dr. Hill further noted that he found it significant that there were several sleepwalkers in the respondent's family:
Thirdly, I think, as I indicated, it turns out, as enquiries are made more and more, that there is a significant history in the background family of Mr. Parks of difficulties, of bedwetting difficulties, of sleeptalking and sleepwalking, that is in keeping with what we know about the phenomena of sleepwalking. We know that there are often family members so affected and that was present.
Dr. Broughton, for his part, indicated that he had never known of sleepwalkers who had acted violently who had repeated this kind of behaviour:
Q. Yes. Now, with respect to Mr. Parks, do you have any opinion, sir, as to the probability of a recurrence of an event of sleepwalking with serious aggression involving physical harm to others?
A. I think the risk of that is infinitesimal, I don't think it would exceed the risk of the general population almost. He has the family predisposition to sleepwalk, but it would only be in the likelihood of all precipitating and extenuating and so forth factors that built up to this crisis that would theoretically have to almost reappear.
Q. And even if they were to reappear, would there be any probability of another homicidal event?
A. It would still ‑‑ As I say, there are no reported cases in the literature, so there is essentially ‑‑ The probability of it occurring is not statistically significant. It is just absolutely improbable.
In cross‑examination he also added that sleepwalking episodes in which violent acts are committed are not common:
Q. And does that, in fact, agree with your own experience with respect to people that you have dealt with at the sleep lab and have seen over the years, that the majority of sleepwalking episodes generally involve what you call trivial behaviour?
A. It is well known that aggression during sleepwalking is quite rare.
Q. How many cases of aggression during sleepwalking have you personally deal[t] with or been involved with at your sleep lab?
A. In the last ‑‑ Perhaps a total of five or six. In the last five years we have seen three.
Further, on being questioned about a cure or treatment, Dr. Broughton answered that the solution was sleep hygiene, which involved eliminating factors that precipitated sleepwalking such as stress, lack of sleep and violent physical exercise:
Q. And with respect to the sleepwalking phenomenon you have described or the disorder or arousal you have seen, is there any treatment available?
A. Yes. There are a number of treatment approaches that are used for sleepwalking. It's not a type of condition where there is one sort of universally applied treatment.
Q. And can you give us an example of what kind of treatments are available?
. . .
A. There is no specific, let's say pill or specific medication that you can give which will eradicate the sleepwalking. The best treatment procedure generally is to try an [sic] avoid precipitating factors, to stabilize sleep, to avoid sleep deprivation, the various things that ‑ medication that might lead to an attack and so forth.
Q. Are the regimes for stabilizing sleep, etc., complicated regimes or are they . . .
A. No, no, they are not. They are basically simple sleep hygiene and rules.
Q. And what do you mean by sleep hygiene?
A. Well, going to bed at a regular hour, getting sufficient sleep, having availability of sufficient exercise and so on that you are tired enough at the end of the day that your body wants to go to sleep, avoiding getting overweight and obese and things that could impair sleep, avoiding alcohol.
Dr. Ervin in his turn stated that during the slow wave sleep stage the cortex, which is the part of the brain that controls thinking and voluntary movement, is essentially in coma. When a person is sleepwalking, the movements he makes are controlled by other parts of the brain and are more or less reflexive:
We put our recording electrodes on the top of the head after all so we are looking at the cortical matter and what is happening there. That part of the brain is effectively in coma, that is, it is highly synchronized, very slow. It looks like the ocean waves rolling along, suggesting that all those nerve cells are no longer doing their busy integrated ‑‑ or they are cut off. They are not working. What is left? What is left is those deep structures evolved some time back, evolved very competently in lower animals to handle the whole set of problems of moving about in the world and responding to stimuli reflexly [sic] more or less, going places, eating things, doing things and so on.
Three very important points emerge from this testimony: (1) the respondent was sleepwalking at the time of the incident; (2) sleepwalking is not a neurological, psychiatric or other illness: it is a sleep disorder very common in children and also found in adults; (3) there is no medical treatment as such, apart from good health practices, especially as regards sleep. It is important to note that this expert evidence was not in any way contradicted by the prosecution, which as the trial judge observed did have the advice of experts who were present during the testimony given by the defence experts and whom it chose not to call.
The Crown, for its part, relied on a decision of the English Court of Appeal, R. v. Burgess, supra, in which the Court held that sleepwalking was a mental illness. It is worth noting here, however, that the evidence in Burgess was completely different from or even contradictory to that presented in the case at bar.
The facts in Burgess are more or less similar to those at issue here. Burgess and a friend fell asleep watching a video. The friend woke up when she felt a blow on the head. Burgess was facing her, holding the video recorder in the air, about to strike her on the head with it, and he did so. Burgess, who woke up immediately after the incident, testified that he did not remember having hit her. He presented a defence of automatism, which the judge rejected. He was acquitted on grounds of insanity and appealed this judgment. Nevertheless, while the facts are similar the medical evidence was very different. Expert witnesses were called. The first witness, a Dr. D'Orban, agreed that Burgess was sleepwalking, but regarded this as a pathological condition. Another expert, called by the Crown, Dr. Fenwick, said that in his opinion this was not sleepwalking but a "hysterical dissociative state". The following is a passage from this judgment at pp. 775-76 which states the situation very clearly:
One turns then to examine the evidence upon which the judge had to base his decision and for this purpose the two medical experts called by the defence are the obvious principal sources. Dr d'Orban in examination‑in‑chief said:
`On the evidence available to me, and subject to the results of the tests when they became available, I came to the same conclusion as Dr Nicholas and Dr Eames, whose reports I had read, and that was that (the appellant's) actions had occurred during the course of a sleep disorder.'
He was asked . . . . in cross‑examination:
Q. `Would you go so far as to say that it was liable to recur? A. It is possible for it to recur, yes.
Judge Lewis. Is this a case of automatism associated with a pathological condition or not? A. I think the answer would have to be Yes, because it is an abnormality of the brain function, so it would be regarded as a pathological condition.'
. . .
The prosecution, as already indicated, called Dr Fenwick, whose opinion was that this was not a sleepwalking episode at all. If it was a case where the appellant was unconscious of what he was doing, the most likely explanation was that he was in what is described as a hysterical dissociative state. . . .
He then went on to describe features of sleepwalking. This is what he said:
. . .
Finally,