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A Mind for Criminal Law–Automatism, Autoimmune Encephalitis & other Medical Conditions-Natasha Ellis

Justice Bastarche defined automatism in R v Stone as “a state of impaired consciousness…in which an individual, though capable of action, has no voluntary control over that action”. The two categories of automatism that will be explored in this post are mental disorder automatism and non-mental disorder automatism, formerly referred to as insane and non-insane. Non-mental disorder automatism can result in acquittal as the voluntariness component of actus reus is missing, while mental disorder automatism can lead to a special verdict of “not criminally responsible on account of mental disorder” (NCRMD) as described in s. 16(1) of the Criminal Code, as a component of mens rea is missing.

The determination of whether the state of automatism falls under mental or non-mental disorder is left up to the trial judge, and the Supreme Court of Canada (SCC) decision in Stone resulted in the presumption that automatism is caused by a mental disorder unless rebutted by the accused. Mental disorder is defined in the Criminal Code as “a disease of the mind”, and the new “more holistic approach” for evaluating an automatism defence looks at internal cause factor and the continuing danger factor, as well as how easily it can be feigned and the potential to “open the floodgates” to claims of automatism.

“Disease of the mind” was described in a decision by the SCC in R v Cooper:

…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 and concussion. In order to support a defence of insanity the disease must, of course, be of such intensity as to render the accused incapable of appreciating the nature and quality of the violent act or of knowing it was wrong.

Sleepwalking and Epilepsy

Two well known cases involving sleepwalking and “sexomnia” illustrate how the courts in Canada have moved to limit the use of non-mental disorder automatism as a defence and broaden the scope of what conditions are considered mental disorders, in the interest of public safety concerns. In the first case R v Parks, the defendant was charged with murder and attempted murder of his in-laws, while sleepwalking, but acquitted due to “non-insane” automatism. Sixteen years later, in R v Luedecke, the Ontario Court of Appeal overturned a trial judge’s decision to acquit the defendant of sexomnia (sexual assault while sleepwalking) by non-mental-disorder automatism. The appellant court found that in keeping with the Stone decision, sexomnia should be viewed as a disease of the mind and lead to a verdict of NCRMD.

In contrast to the approach taken to sleepwalking cases, R. v. Bohak highlights how a defendant with epilepsy was acquitted of charges, claiming a defence of epileptic automatism (non-mental disorder). The Manitoba provincial court judge differentiated this case from Stone (1999) for a few reasons, including one that may raise a few eyebrows - “compelling public policy reasons for not labelling people with epilepsy as mentally disordered or insane”. Although the Canadian approach allows for some judicial flexibility as compared to the UK, the differentiation between causes of automatism “…makes illogical, hair-splitting distinctions inevitable, allowing some an outright acquittal while condemning others to plead guilty or take the risk of a special verdict”.

Medical or Mental?

Researchers who study different “diseases of the mind” are learning more about the biological causes and triggers underlying some of these disorders, which further blurs the line between medical and mental disease and raises questions about whether changes are needed in the criminal legal system.

Autoimmune encephalitis (AE) is a newly recognized inflammatory brain disorder caused by the body’s immune system attacking the brain, leading to inflammation and greatly impaired functioning, and proving fatal in 6% of patients. Although autoimmune limbic encephalitis was initially reported in medical journals in 1968, it was not until 2005 that the anti-NMDA-receptor antibody was discovered, and new types of AE have since been discovered at a rate of about one every six months.

These newly identified antibodies target the brain, producing the psychiatric and neurological symptoms of AE including: cognitive impairment, memory difficulties, seizures, involuntary movements, behavioral changes such as agitation, loss of inhibition, hallucinations (visual or auditory), paranoid thoughts, severe anxiety, sleep disruption including severe insomnia, and decreased level of consciousness. “During and after the acute phase of [autoimmune] encephalitis the patient may be uncharacteristically uncooperative, aggressive and even violent (acute confusional state). During this time, the patient is not aware of their behaviour or the impact it has on those around them or able to control it.” Susannah Cahalan wrote about her experience as a 24-year-old journalist who developed anti-NMDA-receptor encephalitis, in the book Brain on Fire: My Month of Madness (which was made into a movie - available on Netflix).

A 2014 survey suggests that the prevalence of AE is 13.7 per 100,000 people, and this number is likely to increase as more doctors learn how to recognize the condition. It remains to be seen how a defence of automatism caused by autoimmune encephalitis would be handled in Canadian courts, and whether it would be viewed as a medical condition like epilepsy, or as “mentally disordered or insane” like sleepwalking, both of which overlap with symptoms AE.

Looking Back

In 1993, a White Paper proposed that the Criminal Code be amended to “provide for the verdict of not criminally responsible on account of automatism”. If this type of amendment had been made, it would mean that all defences of automatism would be handled in a similar manner, and there would not be a distinction made based on avoiding the highly stigmatized label of a medical condition being a “disease of the mind”. The proposal for amendment was dropped, and the last review of the Mental Disorder Provision of the Criminal Code was done by committee in 2002 with no significant changes.

In response to the infamous 2008 killing of Tim McLean by Vincent Li, who was found NCRMD and eventually released into the community, Bill C-54 was passed in the House of Commons but failed in the Senate when parliament was prorogued in 2013, but was reintroduced as Bill C-14 and received Royal Assent in 2014. These amendments created a high-risk designation for some NCR defendants which would further restrict the freedom of individuals who have been declared not criminally responsible.

Looking Forward

Improved education and training for law enforcement officers about how to recognize and handle situations where individuals with brain-based disorders, may help prevent escalation or violence. Greater pressure must also be placed on governments to ensure people have access to quality, timely healthcare to treat medical conditions, especially those that fall within the legal definition of “diseases of the mind”, so that fewer people find themselves involved with the criminal justice system.

There has always been incongruence between the medical and legal approach to defining automatism and mental disease, but as the research is “…rapidly expanding knowledge of these syndromes resulting in a shift in clinical paradigms and new insights into pathogenic mechanisms”, it will be important for the legal system to follow and evolve in its approach to balancing Charter rights of accused individuals, criminal culpability, and public safety. Whether the definition of disease of the mind is updated, or a new verdict of “not criminally responsible by recognized medical disorder” is added, or the autonomy and liberty of people who deal with symptoms of “mental illness” are respected and protected, it may be time to take another look at the approach taken to address these complex issues of automatism and mental disorders.


1 R v Stone, [1999] 2 S.C.R. 290, 1999 CarswellBC 1064 1999 [Stone].

2 Simon Verdun-Jones, Criminal Law in Canada: Cases, Questions, and the Code, 6th ed (Toronto: Nelson Education, 2015) at 221.

3 Ibid at 222.

4 Criminal Code, RSC 1985, c C-46, s 2.

5 Supra note 2 at 227.

6 R v Cooper, [1980] 1SCR 1149, 1979 CarswellOnt 60 at 1159.

7 R v Luedecke, 2008 ONCA 716 [Luedecke].

8 R v. Parks, [1992] 2 SCR 871, 1992 CarswellOnt 107.

9 Luedecke, supra note 7.

10 Supra note 2 at 228.

11 R v Bohak, 2004 CarswellMan 188, [2005] 2 WWR 339.

12 Ibid at para 118; RD Mackay, “An anatomy of automatism” (2015) 55(3): Med Sci Law at 150–155 <https://www.researchgate.net/publication/282076836_An_anatomy_of_automatism_Sane_and_insane_automatism>.

13 UK, Law Commission, Criminal Liability: Insanity and Automatism (Discussion Paper) (London 8 July 2013) at para 1.41

14 Autoimmune Encephalitis Alliance, “FAQ” (last visited 12 December 2020), online: Autoimmune Encephalitis Alliance <https://aealliance.org/faq/> [https://perma.cc/8XDH-W2FW].

15 Frank Leypoldt et al, “Autoimmune Encephalitis” (2013) 8(1): Eur Neurol Rev at 31-37 (touchNeurology) <https://touchneurology.com/brain-trauma/journal-articles/autoimmune-encephalitis/>

16 Ibid.

17 Autoimmune Encephalitis Alliance, “Symptoms” (last visited 12 December 2020), online: Autoimmune Encephalitis Alliance <https://aealliance.org/patient-support/symptoms/> [https://perma.cc/Q94L-DQJ6]

18 Encephalitis Society, “What is Encephalitis?” (July 2017), online: Encephalitis Society: The brain inflammation charity < https://www.encephalitis.info/what-is-encephalitis> [https://perma.cc/56W4-N3NP].

19 Emily Eakin, “Her Illness Was Misdiagnosed as Madness. Now Susannah Cahalan Takes On Madness in Medicine.” (last modified 27 November 2019), online: The New York Times <https://www.nytimes.com/2019/11/02/books/susannah-cahalan-great-pretender.html> [https://perma.cc/46NE-GJ9T].

20 Divyanshu Dubey et al, “Autoimmune Encephalitis Epidemiology and a comparison to Infectious Encephalitis” (2018) 83(1): Ann Neurol at 166-177 (NCBI) <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6011827/>.

21 Government of Canada, Department of Justice, “Response to the 14th Report of the Standing Committee on Justice and Human Rights” (Corporate Publication), Review of the Mental Disorder Provisions of the Criminal Code (Ottawa: Department of Justice, November 2002) <https://www.justice.gc.ca/eng/rp-pr/cp-pm/cr-rc/md-tm/defin.html> [https://perma.cc/R39J-ELDR].

22 Lisa Grantham, “Bill C-14: A step backwards for the rights of mentally disordered offenders in the Canadian criminal justice system” (2014) 19: Appeal at 63-81 (Canlii) <https://www.canlii.org/en/commentary/doc/2014CanLIIDocs70#!fragment/zoupio-_Toc3Page1/BQCwhgziBcwMYgK4DsDWszIQewE4BUBTADwBdoAvbRABwEtsBaAfX2zgGYAFMAc0ICMASgA0ybKUIQAiokK4AntADkykREJhcCWfKWr1m7SADKeUgCElAJQCiAGVsA1AIIA5AMK2RpMACNoUnYhISA> [https://perma.cc/G54F-L6G6]

23 Bill C-14, An Act to amend the Criminal Code and the National Defence Act (mental disorder), 2nd Sess, 41st Parl, 2013-2014, (assented to 11 April 2014.

24 Marion Warnica, “Cop with epilepsy says Edmonton arrests show seizure training should be mandatory” (last modified 19 October 2016), online: CBC News <https://www.cbc.ca/news/canada/edmonton/cop-with-epilepsy-says-edmonton-arrests-show-seizure-training-should-be-mandatory-1.3811029> [https://perma.cc/B5XQ-XRMJ].

25 Alan Bruder, “Insane Automatism: A Proposal for Reform” (2000) 45: McGill L J at 68 (U Toronto Library) <https://tspace.library.utoronto.ca/bitstream/1807/88192/1/Brudner%20-%20Insane%20Automatism.pdf>.

26 Supra note 15.

27 Bruder, supra note 25 at 80 (“a disease of the mind is any impairment of the powers of cognition, foresight, deliberation, and judgment that renders the individual generally (and not merely episodically) incapable of appreciating the reasonably foreseeable consequences of his actions or of understanding information relevant to executing his conception of well-being”).

28 Mackay, supra note 12 at 154.

29 Bruder, supra note 25 at 65.

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