July 25 2008

Ms. Johnston

CLN 4U0
 The Missing Dimension of Voluntariness: The Automatism Defence

Section 16(1) of the Criminal Code states, “No person is criminally responsible for an
act committed or an omission made while suffering from a mental disorder that rendered the
person incapable of appreciating the nature and quality of the act or omission or of knowing
that it was wrong” (http://laws.justice.gc.ca). This section of the Criminal Code, allows those
who are suffering from a mental disorder the opportunity for treatment of their disorder and
not held responsible for something they did because of said mental disorder. The principle of
this section is taken from an 1843 British case involving a man named Daniel M’Naghten
(http://cmte.parl.gc.ca). M’Naghten believed that he was the target of a conspiracy involving
the Pope and the British Prime Minister. He killed the Prime Minister’s secretary in a failed
assassination attempt. Several psychiatrists stated that M’Naghten was insane and the jury
agreed with them and the resulting verdict was “Not Guilty by Reason of Insanity”. There
was public criticism about the verdict so in 1844, British judges created the M’Naghten
Rules, which state, “An accused may be acquitted only if, by reason of a “disease of the
mind” they did not realize what they were doing was a crime”
(http://www.washingtonpost.com). The Supreme Court of Canada Definition of automatism
is, “A state of impaired consciousness, rather than unconsciousness, in which an individual,
though capable of action, has no voluntary control over that action” (Alexandrowicz, 304).
The automatism defence is very similar to the M’Naghten Rule in that in both the accused
did not realize that what they had done was a crime. Automatism is a legal defence that
judges and lawyers view with some apprehension. The veracity of the defence of
automatism is disputed among psychologist and legal experts alike. Many have tried to use
this defence and few have succeeded. Canada should not continue to allow the use of the
automatism defence in instances where the accused has committed a criminal act so
heinous that society is left in fear.

Automatism is a defence used when the accused attempts to prove that the actions
that they did were not voluntary. It is the responsibility of the accused to prove that the
crime was done while he or she was unconscious, and thus were more of a reflex action than
voluntary (Hogan, 39). The law states that people act voluntarily and to raise the defence of
automatism puts into question the sanity of the accused (www.justice.gov.ab.ca,
www.thecanadianencycolpedia.com). The defence must rely on a multitude of evidence,
such as psychiatric evaluation and the severity of the trigger, to try to convince the judge
that there is enough evidence that a jury could possibly find that the accused acted
involuntarily on a balance of probabilities. The judge then decides on whether the accused’s
actions are the result of insane or non-insane automatism (www.justice.gov.ab.ca). Insane
automatism is the result of a “disease of the mind” or mental disorder, and non-insane
automatism is the result of outside factors such as Dissociative Identity Disorder or a
concussion (http://news.bbc.co.uk). The courts have decided that in the case of insane
automatism, if it can be proved, on a balance of probabilities, that the accused really did not
have control over his or her actions, that the accused’s actions were not voluntary, then the
accused will be tried according to the mental disorder rules. If it is found that the accused
was in a state of non-insane automatism, then the accused is entitled to an acquittal.
In 1974, Wayne Rabey, a University of Toronto student, had a multitude of classes
with a young lady, for whom he later developed strong feelings. Unfortunately, the young
lady did not like him back. Rabey later discovered a note that she had written to a friend
stating that he was nothing. Later he saw the girl, grabbed her, hit her on the head and
while she was unconscious, he began chocking her. He used the defence of non-insane
automatism and was acquitted at trial. The trial judge, upon reading that the one Rabey was
infatuated with thought he was nothing, found that he suffered a strong enough
psychological blow to cause him to be in a dissociative state. In the written decision for this
case, the Supreme Court of Canada ruled that sleepwalking is not a “disease of the mind”
(http://csc.lexum.umontreal.ca). Was Rabey really sleepwalking? Rabey reported that he only
had a faint recollection of the events, and what he remembered differed slightly from what
the victim remembered of the event. Those who Rabey next encountered, among them a
professor and a nurse, testified that he was bewildered, his speech was shaky, his pulse was
fast, but not strong and he had a limp appearance (http://csc.lexum.umontreal.ca).
According to the Encyclopedia of Life Sciences, when one is asleep, heart rate and
respiration slow and body temperature falls. During Rapid Eye Movement (REM) sleep, heart
rate respiration and body temperature increase slightly and brainwaves and fast and active,
like being awake (Steele, 1509-1510). Much of what was stated of Rabey’s appearance after
he attacked the victim matched the basic characteristics of what someone who is asleep
would go through. However, the fact that the attack happened in the middle of the day
makes it unlikely that he was sleeping. The Crown appealed the trial judge’s decision all the
way to the Supreme Court where it was dismissed. Rabey’s acquittal was upheld
(http://csc.lexum.umontreal.ca).

A doctor testifying in a case in Britain indicated that people who are sleepwalking
could do the same things they do when they are awake (http://news.bbc.co.uk). In 1987
Kenneth Parks drove to his in-laws house where he murdered his mother-in-law and seriously
injured his father-in-law. After the attack, he then drove to a nearby police station where he
later confessed. He was charged with attempted murder in the case of his father-in-law, and
first-degree murder in the case of his mother-in-law. Parks claimed that he was sleepwalking,
and could not remember what had happened. He also stated that his family suffered from
sleep disorders and he had trouble waking up and had been in some financial difficulty the
year before (http://csc.lexum.umontreal.ca). Based on what the doctor expressed and what
happened, could Parks’ actions that night, have been a subconscious desire that he had to
kill his in-laws? In the written decisions, one of the Supreme Court judges stated that Parks
had a good relationship with his mother-in-law and fairly good relations with his father-in-
law, which would suggest no motivation for him to want them dead. This reasoning resulted
in Parks being acquitted at trial and finally having the Crown’s appeal being dismissed by
the Supreme Court (http://csc.lexum.umontreal.ca).

The most controversial case is the 2005 decision made by the Ontario Court of Justice
in the case of R. v. Luedecke. In 2003, Jan Luedecke went over to a party at a friends’ house.
Early in the morning, after being awake for over 22 hours, he fell asleep on the opposite side
of a couch from a lady who had fallen asleep there earlier. Later in the morning, the lady was
awoken to find a man (Luedecke) having sex with her. She pushed him off of her and he fell
to the ground. Luedecke stated that when he woke up the first time, he realized that he as
wearing a condom, he thought nothing of it, went home and went back to sleep. When he
woke up the second time, he had a faint recollection of something happening the night
before. When he heard from his friend that the police where looking for someone who had
sexually assaulted a woman the night before, he confessed to the police that he might be
the one whom they were looking for. He used the defence of non-insane automatism and
was acquitted at trial (http://www.canlii.org). Since Luedecke had not been asleep for over
22 hours, he would have been significantly lacking in the amount of REM sleep he should be
getting each night. According to sleepdex.org, a lack of REM sleep can lead to insanity.
Should Luedecke’s actions have then been ruled as insane automatism rather than non-
insane automatism? Luedecke testified that he might have had sex in his sleep on a number
of other occasions, but he could not remember them, and automatism can result in one not
having a memory of what was done—as well as intoxication. Luedecke testified that he went
to the party he “consumed eight to 12 beers, a couple of drinks of rum and Coke, and a
couple of vodkas” (http://www.canlii.org). Using a blood alcohol content calculator and
assuming that Luedecke weighs at least 140 lbs (63.5 kg), if Luedecke only had the eight to
twelve beers alone, he would have a blood alcohol content of over 0.10, and thus be
intoxicated (http://www.ou.edu). The use of the defence of automatism caused by
intoxication is limited by section 33.1 of the Criminal Code. Self-induced intoxication is not a
valid excuse for any actions done involuntarily (http://www.thecanadiaencyclopedia.com).
Forensicpsychiarty.ca states that when intoxication is the cause of the automatism, it has to
be “idiosyncratic or pathological intoxication” only. There is a high possibility that Luedecke
was intoxicated at the time of the attack and he was acquitted using the defence of
automatism.

Canada should not continue to allow the use of the automatism defence in instances
where the accused has committed a criminal act so heinous that society is left in fear.
Luedecke was acquitted of sexual assault and this decision can open up a possible escape
route for those accused of rape. Parks was acquitted of killing his mother-in-law claiming
sleepwalking and Rabey was also acquitted of attacking a fellow university student using the
automatism defence. An eight state study conducted in the United States in the early 1990’s
showed that less than 1% of those accused of crimes plead insanity and of that 1%, less
than one quarter won acquittals (http://www.washingtonpost.com). On a global scale, the
automatism defence has been raised in over 30 murder trials around the world, with a low
success rate (www.trutv.com). Maybe Canada’s legal system should look at the results of
these studies. Is Canada too liberal on this issue and allowing too many people who are
charged with terrible crimes go free? Victims of crimes where automatism was used
successfully as a defence feel that they have been cheated by the legal system
(www.trutv.com). In the R. v. Hallcase, the judges stated, “… public confidence is essential to
the proper functioning of the … justice system as a whole” (Alexandrowicz, 283). Releasing
people because they can prove, based on evidence that they supplied themselves, so it may
or may not be fabricated, does noting to inspire public confidence in the justice system. If
Canada wants to maintain an image of a nation that is just and upholds the rights of the
victims then Canada should no longer allow the use of the automatism defence.
 Works Cited
“1999—Automatism—privilege/Waiver—Alberta Sentencing Approaches—R. v. Bert Thomas
STONE.” 27 May 1999. Supreme Court of Canada. 9 July 2008.
<http://www.justice.gov.ab.ca/downloads/domcumentloader.aspx?id=45431>.

Alexandrowicz, George. Austin, Marion. Cairns-Way, Rosemary. et. al. “Automatism.”

Dimensions of Law: Canadian and International Law in the 21st Century. Toronto: Emond
Montgomery. 2004. 283, 304-305.

Canada. Department of Justice. R. v. Parks. Ottawa: Supreme Court of Canada. 1992. 11 July
2008. <http://csc.lexum.umontreal.ca/en/1992/1992rcs2-871/1992rcs2-871.html>.

Canada. Department of Justice. Rabey. v. R. Ottawa: Supreme Court of Canada. 1980. 11 July
2008. <http://csc.lexum.umontreal.ca/en/1980/1980rcs2-513/1980rcs2-513.html>.

Canada. “Part One: General.” Criminal Code of Canada. 7 July 2008. Department of Justice. 8
July 2008. <http://laws.justice.gc.ca/en/showdoc/cs/C-
46//20080708/en?command=search&caller=SI&fragment=subsection%2016(1)&search
_type=all&day=8&month=7&year=2008&search_domain=cs&showall=L&statuteyear=
all&lengthannual=50&length=50>.

Hamilton, R. M. “BAC Calculator” The Police Notebook. 30 October 2007. University of

Oklahoma. 22 July 2008. <http://www.ou.edu/oupd/bac.htm>.

Hogan, Brian. Smith, J. C. “The Elements of a Crime.” Criminal Law.4th edn. Boston:
Butterworth & Co Ltd. 1978. 39.

Martin, John P. “The Insanity Defense: A Closer Look.” The Washington Post. 27 February
1998. The Washington Post Company. 10 July 2008.
<http://www.washingtonpost.com/wp-srv/local/longterm/aron/qa227.htm>.

“Medical Plea Key to Buck’s Defence.” BBC News. 5 April 2002. BBC. 13 July 2008.
<http://news.bbc.co.uk/1/hi/health/1913066.stm>.

Otter. “R. v. Luedecke, 2005 ONCJ 294 (CanLII).” 29 November 2005. Canadian Legal
Information Institute. 11 July 2008.
<http://www.canlii.org/en/on/oncj/doc/2005/2005oncj294/2005oncj294.html>.

Ramsland, Katherine. “Automatism: The Sleepwalker’s Defense.” Trutv. 2008. Turner

Broadcasting System Inc. 13 July 2008.
<http://www.trutv.com/library/crime/criminal_mind/psychology/automatism/1_index.html
>.

Renke, Wayne. “Automatism, Defence of.” The Canadian Encycolpedia. 2008. Historica
Foundation of Canada. 8 July 2008.
<http://www.thecanadiaencycolpedia.com/index.cfm?PgNm=TCE&Params=A1SEC87925
0>.

Scott, Andy. “Review of the Mental Disorder Provisions of the Criminal Code.” 2001. Standing
Committee on Justice and Human Rights. 9 July 2008.
<http://cmte.parl.gc.ca/Content/HOC/committee/371/just/reports/rp1032130/justrp14/08
-rap-e.htm>.

“Sleepwalking Man Cleared of Rape.” The BBC News. 19 December 2005. BBC. 11 July 2008.
<http://news.bbc.co.uk/2/hi/uk_news/england/north_yorkshire/4543340.stm>.
Steele, W. “Sleep.” Encycolpedia of Life Sciences. 2nd edn. Volume 11. New York: Marshall
Cavendish. 1996. 1509-1510.

Alexandrowicz, George. Austin, Marion. Cairns-Way, Rosemary. et. al. “Automatism.”

Dimensions of Law: Canadian and International Law in the 21st Century. Toronto: Emond
Montgomery. 2004. 304-305.

This source provided a good launching point from where to start the research process.
It created many questions that would require answering and so it provided many key
words that could be used for research. The book's target audience is senior high school
students, so the language is simple and easy to follow. Since books by the same
publisher are used in universities, it is apparent that Dimensions of Law, must be of a
very high quality. It is a reference used in class, so there is familiarity about the source
since I have used it for a number of days and as such am familiar with the basic layout
of the book. However, it only gives a brief overview of the subject and is not very in-
depth.

Bourget, Dominique. “Review of the Mental Disorder Provisions of the Criminal Code of
Canada.” Brief Presented to the Standing committee on Justice and Human Rights.
April 2002. The Academy on Psychiatry and the Law. 8 July 2008. <http://www.cpa-
apc.org/media.php?mid=6&wxm=true>.

This source is a brief created by the Canadian Academy on Psychiatry and the Law
(CAPL), which, according to, it's president, Jean-Marie Albert, is a "professional body
representing forensic psychiatrist across Canada." The Brief outlines issues of concern
regarding certain sections of the Criminal Code, the sections relating to the mental
disorder provisions of the Code primarily, and then outlines suggestions of what to do
regarding said issue of concern. It lists its recommendations at the end of the brief in
concise terms and in bold so that they are easy to locate. Before the recommendation
is even given, the CAPL gives it's review of the section in question in general terms and
then in terms that are more specific, gives it's recommendation. Having the main
points in bold gave it easy to find new search terms that would aid in the completion of
this project.

Canada. Department of Justice. R. v. Parks. Ottawa: Supreme Court of Canada. 1992. 11 July
2008. <http://csc.lexum.umontreal.ca/en/1992/1992rcs2-871/1992rcs2-871.html>.

This source is a ruling from the Canadian Supreme Court, a court that establishes
many important precedents. The Case of R. v. Parks is significant in that it established
sleepwalking as a valid defence and valid cause for insane automatism. This is an
important distinction to be made in relation to the thesis of my essay. Since all
decisions that are made by the Supreme Court are binding on all other courts in the
country, this decision in important relating to the proper use of the defence of
automatism. The Court's reasoning, following its decision, outlines the difference
between insane and non-insane automatism as well as defining what automatism is.
The target audience for this judgment is probably lawyers since most of it would not be
of interest to most other people unless they are in the legal profession. This case, and
in the reasoning of the judges, gave reference to other cases and their decisions so
there were more cases that could be looked up to support my thesis and also the
results of those decisions could be used from this page as is without having to search
for the actual case itself, however, theses references were hard to find.
Canada. “Part One: General.” Criminal Code of Canada. 7 July 2008. Department of Justice. 8
July 2008. <http://laws.justice.gc.ca/en/showdoc/cs/C-
46//20080708/en?command=search&caller=SI&fragment=subsection%2016(1)&searc
h_type=all&day=8&month=7&year=2008&search_domain=cs&showall=L&statuteyea
r=all&lengthannual=50&length=50>.

The publication of the Criminal Code, like the R. v. Parks ruling, is targeted primarily at
layers. The language of certain sections is advanced and technical. The site was
updated just a few days before it was accessed and the actual Criminal Code itself,
updated a little over a month before, making this site one of the more accurate and
timely sources that was accessed. The definitions it provided for certain words allows
the reader to more accurately understand what context the words in the proceeding
section mean. Compared to other sites, the information presented was easy to find and
access and the site in general provided links to other sections that could possibly help
in the research process.

Hogan, Brian. Smith, J. C. “General Defences.” Criminal Law.4th edn. Boston: Butterworth &
Co Ltd. 1978. 136, 176.

This source was easily accessible, since it’s a book that I own, but it was also one of
the least reliable sources that was used. As law is an ever-changing field, the laws that
were current 30 years ago, may on longer be current today. However, some of the
principles may still be the same and as such it is a satisfactory source to use when
looking at the results of older cases and precedents, such as the M'Naghten case.
Legal theories on the defence of automatism have changed and so what is written in
this book needs to be taken cautiously and needs to be cross-referenced with other
sources to determine whether what is stated is still current. Also, the book focuses on
British Criminal Law and not Canadian so there may be some discrepancies as well.
The target audience is university students who already have a fairly good
understanding of law, the words used are very technical.

Martin, John P. “The Insanity Defense: A Closer Look.” The Washington Post. 27 February
1998. The Washington Post Company. 10 July 2008.
<http://www.washingtonpost.com/wp-srv/local/longterm/aron/qa227.htm>.

A very interesting look on the mental disorder defence in general. This source gives an
easy to understand explanation of the history of the mental disorder defence and
cases in which it has been used. Like the CAPL, it highlights in bold text the main
points to draw the readers attemtention so the reader does not need to read every last
sentence to find the important parts or the information that was being searched for in
the beginning. The article examines key elements of the mental disorder defence such
as if it is only used in murder cases, and what happens to the accused if they are
deemed not guilty be reason of insanity among others. The last quote in the article,
“When you’ve got no better defense, that’s the way to go,” brings a bit of humour to
the article as well as bringing it to a nice conclusion.
Ramsland, Katherine. “Automatism: The Sleepwalker’s Defense.” Trutv: Not Reality. Actuality.
2008. Turner Broadcasting System Inc. 13 July 2008.
<http://www.trutv.com/library/crime/criminal_mind/psychology/automatism/1_index.ht
ml>.

An interesting look at the R. v. Parks case from an American perspective. It shows the
scepticism regarding the use of automatism as a defence especially in the case of
sleepwalking. It gives a summary of the case that is easy to read and understand and
includes elements of the case not available, or easily accessible on other sites.

“SCC to Mull Automatism Defence in Que. Murder Case.” CTV News. March 2006. CTV Globe
Media. 10 July 2008.
<http://www.ctv.ca/servlet/ArticleNews/story/CTVNews/20060313/automatism_defence
_06313?s_name=&no_ads>.

This source provided an interesting point of view. It looked into the question of if
automatism and battered woman's syndrome are the same. It questions if battered
woman's syndrome is really a defence onto itself or if it is just a subset of automatism.
It is a thought provoking article that really shows that there is a need for a specific
definition of what insane and non-insane automatism really are.

Steele, W. “Sleep.” Encycolpedia of Life Sciences. 2nd edn. Volume 11. New York: Marshall
Cavendish. 1996. 1509-1510.

This source was a great place to look for simple information on sleep. During the
course of the research, different facts about the accused’s appearance, and behaviour,
as well as statements made by witnesses, mentioned that the accused was in a
“trance” or “dream” like state. This resulted in having to do research on sleep itself to
discover if, when one is sleeping, they are likely to have certain elements that are
similar to those that the accused was supposed to have. This article in the
encyclopedia, was fairly technical but easy enough to understand if read through
slowly and more than once.