The Defence Toolkit – May 4, 2024: “May the Force be With You”

This week’s top three summaries: R v Thomas, 2024 NWTCA 3: Mens Rea & Actus Reus, R v Criece, 2024 SKCA 41: sentence #gap, and R v Morris, 2024 SKCA 36: #automatism.

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R v Thomas, 2024 NWTCA 3

[May 4, 2024] Co-Existence of Mens Rea and Actus Reus [Duncan, Ho and Gross JJ.A.]

AUTHOR’S NOTE: Every offence in law requires both a guilty act and a guilty mind. The act and the guilty state of mind have to coincide at some point in time. If they do not, there is no crime. Here, after a robbery and beating, a person was left and died. The question was whether the acts could be extended to the act of leaving. The Court of Appeal concluded that there was no positive obligation in law to call for help or obtain medical attention. As a consequence, there was no legal basis to extend the acts of violence to the act of leaving. This meant that the guilty mind concept never coincided here with the actus reus for murder. 

The Court:

[1] The appellant was charged with the first-degree murder of Alex Norwegian. The victim died on a remote road on the K’atl’odeeche First Nation Reserve, Northwest Territories in the early morning of December 27, 2017.

[2] Following a five-week judge-alone trial, the appellant was convicted of second-degree murder and robbery. On the murder conviction, the appellant was sentenced to life imprisonment with no possibility of parole for ten years. The appellant was sentenced to ten years for the robbery, to be served concurrently to the murder sentence.

[3] The appellant appeals the second-degree murder conviction and the sentence imposed for robbery. He submits that a manslaughter conviction should be substituted and remitted to the trial judge for sentencing....

[4] For the reasons outlined herein, we dismiss the conviction appeal, set aside the seconddegree murder conviction, substitute a conviction for manslaughter, and remit the matter to the trial court to impose sentence.

Reasons for Conviction

[17] The trial judge first considered second-degree murder before turning to whether the Crown had established forcible confinement for the purposes of section 231(5). His analysis of seconddegree murder under section 229(a) is reproduced in its entirety below (R v Thomas, 2022 NWTSC 3) (emphasis added):

Second degree murder requires either an actual intention to kill or the intention to cause bodily harm that the accused knows is likely to cause death and the accused is reckless as to whether or not death ensues.

As I already said, I do not find that there was any actual intention to kill in this case. The bodily harm inflicted during the robbery in which the accused participated was very serious but not sufficient to allow me to draw the legal conclusion that the accused would have known it was likely to cause death.

What this case comes down to is the decision to leave Alex Norwegian at the Portage and its consequences, the consequences that flow from that decision. I suspect, and I am prepared to give the [appellant] the benefit of this suspicion, that he fully intended that Alex Norwegian would be able to leave the Portage and drive home. This was not a reasonable expectation and when this did not happen, [the appellant] made the decision to leave him there incapacitated, not dressed for the weather, in a car with no windows on a deserted road in the middle of the night in minus 20 temperatures.

At that point in this situation entirely caused by the actions of [the appellant] and Levi Cayen, this decision was the one which likely caused the death of Alex Norwegian. He was likely to die under those circumstances. I also find that [the appellant] had to be aware of this. The robbery, the injuries, the decision to leave, form a continuous string of actions all of which [the appellant] is responsible for, especially so the fatal decision to leave.

The mental element or guilty mind in this case falls very close to the line between manslaughter and murder. If Alex Norwegian had been able to drive away and lost consciousness further down the road out of sight, this would have been an extremely serious manslaughter with robbery, but that is not what happened here. I find that the first stage of the requirements for second degree murder is made out, that the [appellant] caused bodily harm to the victim, knowing that this was likely to result in his death. That knowledge was not complete until the decision to leave the Portage, but upon that decision being made, the knowledge was complete. I now move on to consider the issue of recklessness.

[18] With respect to the forcible confinement, the trial judge was satisfied that at some point the victim was forcibly confined but did not find beyond a reasonable doubt “that the forcible confinement was contemporaneous with the serious injuries inflicted on the victim…”. The trial judge found the victim had been “fully released” and was “operating under his own volition when he drove into the snowbank”. The trial judge concluded that “on the totality of the evidence, I do not find that the Crown has proven that the forcible confinement was sufficiently linked to the death of [the victim] to raise this case to first degree murder.”

[21] In his sentencing reasons, the trial judge further stated:

“I found [the appellant] guilty [of] the offence of second degree murder essentially because of the decision to leave…”.

“[The injuries that the victim suffered] were not the cause of death. What caused the death was the decision to leave [the victim] in an obviously vulnerable condition in freezing temperatures.”

[24] We are of the view that the trial judge erred in his consideration of the actus reus, which led in turn to an error in respect of the concurrence principle. Both are questions of law to be reviewed for correctness: Housen v Nikolaisen, 2002 SCC 33 at para 8.

The actus reus

[25] The Crown must prove two elements as part of the actus reus for murder: 1) an unlawful act; and 2) the unlawful act caused death: R v Feng, 2014 BCCA 71 at para 15; R v Cabrera, 2019 ABCA 184 at para 54, aff’d 2019 SCC 56.

[26] The trial judge made several findings of fact about what occurred at the Portage. None of the factual findings is under appeal. The trial judge found that neither the appellant nor Levi had an actual intention to kill the victim while they were beating and robbing him. The trial judge also found that the appellant would not have known that the injuries inflicted on the victim during the robbery were likely to cause death. Having arrived at these conclusions, the trial judge then reasoned, “What this case comes down to is the decision to leave [the victim] at the Portage and its consequences…” He further stated:

...[the appellant] fully intended that [the victim] would be able to leave the Portage and drive home. This was not a reasonable expectation and when this did not happen, [the appellant] made the decision to leave him there incapacitated, not dressed for the weather, in a car with no windows on a deserted road in the middle of the night in minus 20 temperatures.

[27] The trial judge’s underlying rationale for the second-degree murder conviction was apparent when he concluded:

The robbery, the injuries, the decision to leave, form a continuous string of actions all of which [the appellant] is responsible for, especially so the fatal decision to leave.

[28] In these circumstances, the act of leaving, however immoral, was not itself an unlawful act. The trial judge’s focus on the act of leaving is similar to the error identified in R v Shevalev, 2019 BCCA 296. In Shevalev the accused choked his father after a dispute. The father became unconscious. The accused laid his father on the bed and left without calling an ambulance or other form of assistance. The British Columbia Court of Appeal set aside the jury’s murder conviction because they found it was possible that the jury convicted the accused without being satisfied he had the requisite intent for murder when he applied the chokehold. The panel held that the chokehold was the “starting and ending point of the actus reus” and the jury had to be satisfied the accused had a murderous intent when he applied the chokehold, regardless of what happened afterwards.

[29] Here, based on the factual findings of the trial judge, the actus reus was complete once the victim returned to his vehicle and drove it “under his own volition”. We are not suggesting that the actus reus cannot be “a series of acts that might be termed a continuous transaction” as described in R v Cooper, [1993] 1 SCR 146, 78 CCC (3d) 289, and as was the Crown’s theory of the case at trial. But here, the trial judge wrongly extended the actus reus to include otherwise lawful acts that were not physical components of a crime given the trial judge’s factual findings: see R v Rivera, 2011 ONCA 225 at para 91, leave to appeal to SCC refused, 34270 (29 September 2011) cited with approval in Shevalev at para 77. A finding that an action is dangerous is not sufficient to establish an unlawful act: see R v KT, 2005 MBCA 78 at paras 13-14, leave to appeal to SCC refused, 31123 (22 June 2006).

[30] The trial judge compounded his error when he found that the actus reus for murder was also established on the basis that the appellant had a legal duty to act. As was made clear in R v Bottineau , [2006] OJ No 1864 (Ont SCJ) at paras 28-33 per Watt J (as he then was), aff’d 2011 ONCA 194, leave to appeal to SCC refused, 34491 (19 January 2012) (emphasis in original):

As a matter of general principle, a crime may be committed by an act or omission, provided the omission is by one and in circumstances in which the law imposes a duty to act. There can be no culpable omission in the absence of a legal duty to act. See Williams, Textbook of Criminal Law, (2d Ed.) para. 7.3 Omissions, at pp. 148- 9; and Stuart, Canadian Criminal Law, (4th Ed.) at pp. 91-2.

[31] Thus, the question is, did the appellant have a legal duty to act in the circumstances of this case? In our view the answer is no, and the trial judge erred when he concluded otherwise. The trial judge found the act of murder occurred when the appellant left the scene after the robbery, knowing the victim was injured, without a jacket in a car with smashed windows, up against a snowbank in temperatures of minus 22 degrees Celsius. However, no federal or provincial statute imposed a legal duty on the appellant “to make sure [the victim] was not left exposed to the elements”. This is not a situation where, for example, a statutory duty to provide the “necessaries of life” to an individual exists, see for example sections 215 and 218 of the Criminal Code.

The concurrence principle and mens rea

[32] The trial judge considered the bodily harm inflicted during the robbery was “very serious”. However, he could not, and did not, draw the conclusion that the appellant would have known that the bodily harm inflicted during the robbery was likely to cause death.

[33] The trial judge convicted the appellant of second-degree murder even though he found that the mens rea for murder did not coincide with the unlawful act, that is the robbery. While the law does not require that the guilty act and intent be completely concurrent, the law requires that they coincide at some point: Cooper; Shevalev. Having found that the trial judge erred in extending the actus reus to include the act of leaving, it follows that the concurrence principle was not satisfied, as required by Cooper.

Remedy

[34] During the Crown’s sentencing submissions the trial judge reiterated his finding that “up until the moment when [the appellant] decided to leave the scene, this was a manslaughter. There was nothing about the injuries to the deceased that would have caused [the appellant] to know that death was likely” [Transcript 2496/15-19]. In light of the errors identified above, we are therefore satisfied that although the appellant was not properly convicted of second-degree murder, he was properly convicted of the included offence of manslaughter. Under sections 686(1)(b)(i) and 686(3) of the Criminal Code, we therefore dismiss the appeal, set aside the second-degree murder conviction, substitute a conviction for manslaughter, and remit the matter of sentencing for manslaughter to the trial court: Regina v Nantais, [1966] 2 OR 246, [1966] 4 CCC 108 (CA).

R v Criece, 2024 SKCA 41

[April 17, 2024] Sentencing: The Gap Principle [Reasons by Barrington-Foote J.A. with Schwann and Brennan JJ.A. concurring]

AUTHOR’S NOTE: The gap principle requires judges to look at significant breaks in the criminal record of an accused at the time of sentencing and take it into account to prevent the unnecessarily increasing of the sentence due to criminal history. It is a balance against the principle a person with an existing criminal record requires an increased punishment for their offence. While it is difficult to articulate what this means in practice in a particular case because all the circumstances have to be considered, the gap cannot be ignored by the sentencing judge. 

I. INTRODUCTION

[1] The appellant, Gerald Criece, was convicted after trial of the following offences as a result of a series of events involving his neighbours, Thomas and Diane Kowalchuk:

(a) uttering threats to Mr. Kowalchuk, contrary to s. 264.l(l)(a) of the Criminal Code;

(b) committing mischief by breaking a window of a police vehicle, the value of which did not exceed $5,000, contrary to s. 430(4) of the Criminal Code;

(c) intentionally or recklessly causing damage by fire to the Kowalchuks’ house, knowing that or being reckless as to whether it was inhabited or occupied, contrary to s. 433(1) of the Criminal Code; and

(d) committing mischief by willfully yelling and swearing at Mr. Kowalchuk without legal justification or excuse, contrary to s. 430(4) of the Criminal Code.

[2] Mr. Criece was sentenced to 5 years and 6 months’ incarceration for the arson, less 330 days of remand credit; 30 days consecutive for uttering threats; 30 days consecutive for committing mischief by breaking the window of the police car; and 30 days concurrent for committing mischief by yelling and swearing at Mr. Kowalchuk.

[4]....I would grant Mr. Criece leave to appeal his sentence and allow that appeal in part. My reasons follow.

V. ANALYSIS: THE SENTENCE APPEAL

[47] The standard of review that applies on an appeal from sentence is that specified in R v Lacasse, 2015 SCC 64, [2015] 3 SCR 1089 [Lacasse], and R v Friesen, 2020 SCC 9, [2020] 1 SCR 424 [Friesen]. The key principles were summarized in Friesen, as follows:

[26] As this Court confirmed in Lacasse, an appellate court can only intervene to vary a sentence if (1) the sentence is demonstrably unfit (para. 41), or (2) the sentencing judge made an error in principle that had an impact on the sentence (para. 44). Errors in principle include an error of law, a failure to consider a relevant factor, or erroneous consideration of an aggravating or mitigating factor. The weighing or balancing of factors can form an error in principle “[o]nly if by emphasizing one factor or by not giving enough weight to another, the trial judge exercises his or her discretion unreasonably” (R. v. McKnight (1999), 135 C.C.C. (3d) 41 (Ont. C.A.), at para. 35, cited in Lacasse, at para. 49). Not every error in principle is material: an appellate court can only intervene if it is apparent from the trial judge’s reasons that the error had an impact on the sentence (Lacasse, at para. 44). ...

[48] An unfit sentence may, but need not be, the product of a palpable error of fact or an error in principle. Justice Wagner (as he then was), explained this in Lacasse, as follows:

[52] It is possible for a sentence to be demonstrably unfit even if the judge has made no error in imposing it. As Laskin J.A. mentioned, writing for the Ontario Court of Appeal, the courts have used a variety of expressions to describe a sentence that is “demonstrably unfit”: “clearly unreasonable”, “clearly or manifestly excessive”, “clearly excessive or inadequate”, or representing a “substantial and marked departure” (R. v. Rezaie (1996), 31 O.R. (3d) 713 (C.A.), at p. 720). All these expressions reflect the very high threshold that applies to appellate courts when determining whether they should intervene after reviewing the fitness of a sentence.

[53] This inquiry must be focused on the fundamental principle of proportionality stated in s. 718.1 of the Criminal Code, which provides that a sentence must be “proportionate to the gravity of the offence and the degree of responsibility of the offender”. A sentence will therefore be demonstrably unfit if it constitutes an unreasonable departure from this principle. …

[49] Mr. Criece alleges that the trial judge committed a variety of errors in sentencing him, as follows:

(c) the trial judge erred in law by failing to apply the gap principle and by failing to consider a positive victim impact statement as mitigating.

C. Did the trial judge err in law by failing to apply the gap principle and by failing to consider a positive victim impact statement as mitigating?

[61] Mr. Criece’s criminal record was treated as an aggravating factor by the trial judge, who said this in the Sentencing Decision :

[22] Finally, Mr. Criece has a criminal record dating to 1978. Many of Mr. Criece’s offences are violent: in 1988, assault; in 1989, robbery, use of a firearm during the commission of an offence and possession of prohibited weapon; in 1993, assault; in 1994, uttering threats; in 2000, robbery and use of a disguise; and in 2012, assault. Other offences include possession and trafficking of drugs, break and enter, theft under $5,000, possession of property obtained by crime, and failure to comply with recognizance. Mr. Criece seemingly has little regard for legal norms of conduct.

[62] The trial judge also referred to Mr. Criece’s record when addressing denunciation and deterrence, commenting as follows:

[24] As Justice Chicoine stated in Dustyhorn Q.B. , denunciation, deterrence - both general and specific - and separating the offender from the public are significant sentencing considerations in offences of arson. In this instance, Mr. Criece’s conduct, his criminal record and his failure to take responsibility for his conduct convince the court that specific deterrence must be part of an appropriate sentence.

[64] The gap principle is based on the notion that, just as the commission of an offence shortly after a release from custody is often treated as an aggravating factor, a “record of good behaviour ought to be equally taken into account” and “[w]here this principle is relevant, it is an error for the sentencing court to fail to apply it” (Ruby at §8.111). As Leurer J.A. (as he then was) wrote in R v Noltcho, 2021 SKCA 113:

[26] It is appropriate for courtsto give credit to those who have demonstrated an “honest effort to avoid conflict with the criminal law” (Clayton Ruby, Sentencing, 10th ed (Toronto: LexisNexis, 2020) at §8.110 [Sentencing]). Rehabilitative efforts will not always be successful, but a substantial passage of time between offences without convictions will often be taken into consideration when sentencing for a new offence. Crime-free periods may show that the individual is not a career criminal, and it follows that the public would require less protection (Sentencing at §8.110, citing R. Cross, The English Sentencing System, 2d ed (London: Butterworths, 1975) at 168.)

[65] Although a major gap in the offender’s criminal record should always be considered by a sentencing judge, whether and to what extent it should impact the sentence will depend on the context and is for the trial judge to determine, within the limits of their discretion. In Noltcho, Leurer J.A. summarized this aspect of the gap principle as follows:

[30] The gap principle is considered in context with the other principles of sentencing and, thus, does not always serve to ameliorate a sentence. The effect of a gap in the criminal record of an offender depends on context and relevance. As noted in Sentencing, “[t]he nature of the offences, the circumstances of the offender, and any intervening events that render the record more or less relevant will affect the weight given to a prior criminal record” (at §8.117).

[66] Justice Saunders nicely made the same point in R v Georgiev, 2014 BCCA 246, commenting that, “[f]or example, the nature of the offences, the circumstances of the offender, and any intervening events that render the record more or less relevant will affect the weight given to a prior criminal record. … [T]he effect of a ‘gap’ on the appropriate sentence is fact intensive” (at para 22). A criminal record is often an important aggravating factor. For that reason, sentencing judges should be aware that evidence of the circumstances of the offender will generally be important if there is a significant gap, to enable them to craft an individualized sentence that achieves proportionality.

[67] Given that both the past and present circumstances of the offences and the offender are relevant to the enquiry, there are any number of facts that could be probative. That evidence will often be provided in significant part by a pre-sentence report. There could, for example, be evidence that the offender has taken many or, on the other hand, no steps to address the causes of their offending, such as an alcohol or drug addiction or criminal associates. Evidence relating to the emergence or recurrence of a mental illness or addiction may provide context. A gap may have been the result of non-detection, or of the stay or dismissal of intervening charges as a result of Charter breaches.

[68] The decision in R v Klotz, 2015 SKCA 7, 451 Sask R 237, is of interest in the context of this appeal, demonstrating as it does how a failure to apply the gap principle may result in a sentencing judge erroneously giving undue weight to the need for specific deterrence. In Klotz, the 42-year-old appellant appealed a sentence of 23 months for breaking and entering. He had 15 prior convictions for this type of offence, a number of which had been committed when he was a youth. He had no convictions for a 14-year period between 2000 until the offence at issue on the appeal.The sentencing judge commented that while there had been a gap, there was a “consistency … of stealing other people’s property” and that Mr. Klotz’s record persuaded him that “the reason that he continues to steal other people’s property is because there’s been no meaningful punishment in the past for his behaviour, and thus he keeps doing these things because there are no real consequences” (as quoted at para 5 of Klotz).

[69] Justice Lane, writing for the Court, concluded that this reasoning reflected several errors. Among other things, he found that the gap of 14 years meant that the sentencing judge had erred by concluding that the 18-month conditional sentence imposed on Mr. Klotz in 2000 had not been meaningful punishment. On a related note, he wrote as follows:

[8] The sentencing judge also found the appellant “continues to steal other people’s property.” This finding does not reflect the record. The extensive gaps in the appellant’s record between convictions for breaking and entering does not indicate “continuous” criminal activity and were given no weight by the sentencing judge.

[9] Misapplication of the principle further led the sentencing judge to ignore the efforts of the appellant to deal with his personal circumstances. He has attempted to deal with his alcoholism and has looked for help to deal with his addiction to painkillers resulting from a workplace accident. He has also volunteered his efforts in his community.

(Emphasis in original)

[70] In the result, the appeal was allowed, and a sentence of 18 months’ incarceration was substituted.

[71] How, then, do these principles affect Mr. Criece’s case? There was a significant gap in his criminal record, disclosing no offences involving violence for the nine years preceding these charges. As would be expected, Crown trial counsel adverted to the criminal record in his sentencing submissions; however, he did not refer to this gap. His comments were as follows:

Fourth aggravating factor is the accused[‘s] criminal history. There are 20 prior convictions, which is, I would suggest, a significant and serious criminal record. Six convictions for violence, and some serious, including two robberies. I include those as violent offences, the robbery.

And I would suggest there’s an aspect, an element, of violence in this arson as well ….

[72] In his summary of the criminal record in the Sentencing Decision, the trial judge did refer to the dates of the offences involving violence. However, there is nothing in the decision or the record to suggest that he considered the application of the gap principle, despite the fact that he had very little information about Mr. Criece’s circumstances during the intervening years or when these offences were committed. There was, for example, evidence that Mr. Criece had been drinking alcohol on the day he committed these offences, but no evidence as to whether that was a continuing pattern or whether alcohol had a relationship to his past offending. The trial judge knew that Mr. Criece had lived across the street from the Kowalchuks for about two years and had, until the events of October 2021, been a good neighbour to them in a variety of ways. In her victim impact statement, Mr. Kowalchuk’s daughter described him this way:

I’m going to remember you as the guy who came into our neighbourhood, and who just has a big smile, who we ate meals with, drank coffee, and beer, and, you know, just did neighbourly things, and -- and I -- and I want to acknowledge and thank you for the friendship that you provided to my parents initially.

I don’t -- I do not believe that there was anything malicious about that, or underhanded. I do truly believe that you were a good person to us, but everything’s that’s transpired that it is so difficult to just mentally consume.

[73] There was, however, little else that would have provided context for the trial judge in relation to the gap. Importantly, there was no pre-sentence report. The trial judge had asked Mr. Criece if one should be ordered and if he knew what it was. Mr. Criece affirmed that he knew what it was, but did not want one, stating “[i]t seems like this Court’s got tunnel vision”....

[76] As noted above, Mr. Criece contends that as a result of the various alleged errors he identified, the trial judge imposed an unfit sentence. I do not agree. However, it is my respectful opinion that the trial judge erred in law by failing to consider the application of the gap principle. Indeed, given the lack of evidence as to Mr. Criece’s circumstances, other than the evidence that he had been a good and helpful neighbour, it was an error to fail to apply it in this case. I am also satisfied that this error in principle impacted the sentence. The Sentencing Decision is very clear on this point. Indeed, the trial judge made the important finding that the criminal record demonstrated that Mr. Criece “has little regard for legal norms of conduct” (at para 22).

[78] In my opinion, a fit sentence for the arson in light of these considerations would be 4 years. I would accordingly quash the sentence of 5 years and 6 months for arson and substitute a sentence of 4 years. The sentence will otherwise remain unchanged.

VI. CONCLUSION

[79] In the result, I would dismiss Mr. Criece’s conviction appeal, grant him leave to appeal his sentence, and allow his sentence appeal by quashing his sentence of 5 years and 6 months for arson and substituting a sentence of 4 years, less 330 days credit for pre-sentence custody, for that offence.

R v Morris, 2024 SKCA 36

[March 28, 2024] Non-insane Automatism [Reasons by Jackson J.A. with Caldwell and McCreary JJ.A. concurring]

AUTHOR’S NOTE: This case is an excellent summary of the defence of non-insane automatism and the requirement for an instruction to the jury on the topic. The jury here was not instructed as the case occurred prior to the extreme intoxication automatism defence becoming available due to the Constitutional challenge to s. 33.1 of the Criminal Code. 

I. Introduction

[1] This appeal concerns the adequacy of a jury charge when the accused alleges non-mental disorder automatism. According to the evidence led at trial, the trigger for the alleged automatism was extreme intoxication caused by alcohol consumption, possibly coupled with prescription medication and the effect of both alcohol and the medication on a neuropathic brain.

[2] Following a jury trial, Jamie Morris was convicted of three Criminal Code offences: sexual assault, contrary to s. 271; robbery, contrary to s. 343(a); and attempt to commit robbery, contrary to s. 343(a). These offences occurred on the same day, February 17, 2018, within a period of approximately 30 minutes. Mr. Morris has no memory of the events, but he admits he committed the acts giving rise to the charges. He has, however, claimed throughout that he is not responsible for his actions – that he had involuntarily committed the actus reus of the offences – because of the medication he was taking, his excessive alcohol consumption, his mental disorders, or a combination of all three. He also claimed a lack of specific intent to commit the robbery and attempted robbery offences due to advanced intoxication.

[4] At the time of trial, s. 33.1 of the Criminal Code prevented an accused from relying on intoxication-based automatism with respect to any offence “that includes as an element an assault or any other interference or threat of interference by a person with the bodily integrity of another person” (s. 33.1(3)). Mr. Morris challenged the constitutionality of s. 33.1, as it related to the general intent offence of sexual assault, but the trial judge, following prior authority of the Court of King’s Bench, ruled that s. 33.1 of the Criminal Code, while unconstitutional, was saved by s. 1 of the Charter: R v Morris (13 September 2019) Regina, CRM 198 of 2019 (Sask QB) [Section 33.1 Decision]. After the Section 33.1 Decision was released, Mr. Morris all but conceded he had no defence to the sexual assault charge.

[6] Since the trial, the Supreme Court in R v Brown, 2022 SCC 18, 472 DLR (4th) 459, and R v Sullivan, 2022 SCC 19, 472 DLR (4th) 521, found s. 33.1 to be unconstitutional and not saved by s. 1 of the Charter, effectively reversing the Section 33.1 Decision.

[7] On appeal, Mr. Morris submits that, as a result of Brown and Sullivan, he is entitled to a new trial, at least on the sexual assault charge, because the jury was not instructed on automatism with respect to that offence. He goes further to say that a new trial is warranted for the robbery offences as well because, in his contention, the jury was not charged regarding automatism in relation to those offences either, and he was entitled to have them so instructed.

[8] The Crown takes a different view of the matter, saying that the trial judge adequately and sufficiently charged the jury with respect to automatism in relation to the robbery offences....

C. Trial and jury charge

[30] As part of his assessment, Dr. Mela diagnosed Mr. Morris as having six mental disorders:

(a) bipolar disorder;

(b) attention deficit hyperactivity disorder (i.e., ADHD);

(c) social anxiety disorder;

(d) panic disorder;

(e) anxiety disorder unspecified (features of simple phobic disorder, agoraphobia and generalized anxiety disorder); and

(f) alcohol use disorder

[31] He opined that all of these disorders were in play on the night of the offences, but it was alcohol use disorder that was pivotal: “It is therefore my opinion of reasonable medical certainty that alcohol intoxication was the most responsible factor for the behaviors associated with the of fences and that the lack of recollection fits an alcohol amnesia (alcoholic blackout)”(December 23, 2019, Psychiatric Report at 21).

[32] When he gave evidence at trial, Dr. Mela opined that “[i]t was more likely than not that Mr. Morris’s alcohol use made his mental conditions worse” but that “the alcohol would take precedence”. He also noted that Mr. Morris had been prescribed and was taking a drug known as paroxetine or Paxil. Testifying to the effect of alcohol and paroxetine on Mr. Morris, he said the following:

His reaction to alcohol, whether large or small, tends to be different from most people’s reactions to alcohol. On that night of the incident, the information I obtained [was] that he consumed [a] significant amount of alcohol. I knew this from the readings that were taken four hours and two hours after the incident occurred and the amount of alcohol showed a significant amount.

I knew this from his inability to stand that the police reported that he was really behaving like somebody who was highly intoxicated. There is a possibility that his medication, as I mentioned earlier, one of them especially the paroxetine, which is an antidepressant, could have contributed to some of these behaviour of agitation, of aggression. I don’t believe it is a significant factor in the automatism in the poor recall of the events, but it contributed to the agitation and the aggression that was shown during the behaviour.

So, in summary, my understanding is that there is already an impairment in his brain. The alcohol in large quantities led him to be in a highly intoxicated state that his brain could not handle and those behaviours could have resulted from that level of intoxication as well as a potential contribution of agitation from the paroxetine that he was taking at the time.

[33] Dr. Mela also testified about dissociation or automatism, which he defined as follows:

So, automatism is the name ascribed to a behaviour that seems to occur almost like a machine, as if it is an automatistic behaviour without the mind controlling it. So, they’re very closely related.

When you say somebody is in a dissociative state, they would just lack the awareness of their environment. But when you are in an automatistic state, you lack the awareness of your environment or the awareness of your environment is much reduced. But at the same time, you carry out certain actions that you did not control, you don’t seem to have the desire or the ability to act in the way you acted, but you are still acting.

So, there is almost like a combination of being -- having an impaired awareness of your environment, but you’re acting. So, a classical example that most people would be aware of in an automatistic state is sleepwalking. The person is deep asleep but gets up, walks around the house, goes to the bathroom and come back but absolutely his mind or her mind is not there, they’re just walking like a machine because they are sleeping at the time that they are walking. So, that’s what an automatistic state is.

[34] Later, he said, “in automatism, what happens is that you may wander, but it’s just that you are carrying out complex activities without your mind being there”. Dr. Mela opined, based on the testimony of Mr. Morris’s ex-wife and some of the witnesses, that, “if there was a medical personnel seeing those things, that would be the definition of medical automatism including the gaze, the behaviour, the lack of control, that would fit in the medical criteria [of automatism]”....

[35] In the final question as to whether Mr. Morris would be “more likely to experience a dissociative state or automatism than someone with no mental disorders”, Dr. Mela answered, “Yes”.

[39] In her Section 16 Decision, after summarizing Dr. Mela’s evidence, the trial judge reasoned as follows:

[11] Dr. Mela was asked whether Mr. Morris’s unawareness of the risks of his behaviour showed he was not in touch with reality. Dr. Mela responded that psychosis causes one to be out of touch with reality. There is a reality, but you misinterpret it. With Mr. Morris, he was aware of reality, but he was not able to align his actions with the sort of person he is.

[12] I conclude that Mr. Morris was acting, in some respects, in a manner influenced by his bipolar and ADHD disorders, on February 17, 2018, after he began drinking. However, there is no air of reality to the assertion that these disorders rendered Mr. Morris “incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong”: Criminal Code, s. 16(1), Accordingly, I will not charge the jury on s. 16.

(Emphasis added)

[40] After this ruling, counsel gave their addresses to the jury and the trial judge gave her charge. The jury ultimately convicted Mr. Morris on all counts.

III. Analysis

A. Primer on extreme intoxication akin to automatism

[45] In R v Stone, [1999] 2 SCR 290, Bastarache J., speaking for the majority, defined automatism as “a state of impaired consciousness, rather than unconsciousness, in which an individual, though capable of action, has no voluntary control over that action” (at para 156). Later,he observed that “lack of voluntariness, rather than consciousness, is the key legal element of automatism” (at para 224).

[46] In Stone, the majority approved the terminology of mental disorder automatism and nonmental disorder automatism rather than insane automatism and non-insane automatism, with the former better reflecting the 1992 amendments to s. 16 of the Criminal Code, which “removed all references to the term ‘insanity’ from the Code” (at para 55): similarly, see paragraph 161. The
majority also approved a two-step process, which must be followed in all cases when dealing with claims of automatism:

(a) the trial judge must first determine whether the accused has satisfied the evidentiary burden for the defence of automatism; and

(b) if yes, the “trial judge must next determine whether the condition alleged by the accused is mental disorder or non-mental disorder automatism” (at para 164) – see also, paragraphs 165, 167 and 193 to 218.

[47] In this appeal, counsel has not raised any question with respect to the trial judge’s approach to mental disorder automatism. They have limited their submissions to the instructions to the jury regarding automatism arising from extreme intoxication. As such, the balance of my reasons will be confined to that defence.[48] Justice Kasirer, writing for the majority in Brown, further defined the nature of and basis for the defence of automatism:

[46] The defence of automatism denies the element of voluntariness and therefore negates the actus reus of the offence (R. v. Chaulk, [1990] 3 S.C.R. 1303, at p. 1321; R. v. Parks, [1992] 2 S.C.R. 871, at p. 896). Involuntary conduct is understood to be genuinely exculpatory because, while the prohibited act was harmful, the accused lacks the capacity to answer for what they did (J. Gardner, Offences and Defences: Selected Essays in the Philosophy of Criminal Law (2007), at p. 142). A physically involuntary act, however wrongful in outward appearance, is not a guilty act that can be imputed to an accused.

[47] Automatism is reflected in involuntary movements that may be associated with heart attacks, seizures or “external” shock, or conditions such as sleepwalking or delirium, where the body moves but there is no link between mind and body (Bratty v. Attorney-General for Northern Ireland, [1963] A.C. 386 (H.L.), at p. 409; Rabey [[1980] 2 SCR 513], at p. 523). Physical voluntariness is a principle of fundamental justice and a requirement of all true criminal offences, central to the criminal law’s desire to avoid convicting the morally innocent (Daviault, at p. 74; R. v. Ruzic, 2001 SCC 24, [2001] 1 S.C.R. 687, at paras. 46–47; R. v. Bouchard-Lebrun, 2011 SCC 58, [2011] 3 S.C.R. 575, at para. 45). Absent a willed movement of the body, the Crown cannot prove the actus reus beyond a reasonable doubt (R. v. Théroux, [1993] 2 S.C.R. 5, at pp. 17–18). This is distinguished from moral involuntariness, which describes scenarios where the accused retains conscious control over their body but has no realistic choice but to commit a guilty act (Ruzic, at para. 44).

[48] In addition, an automaton cannot form the mens rea, or guilty mind, if their actions are involuntary. Where an accused has no conscious awareness of their movements, they necessarily cannot intend their involuntary acts. Imposing criminal liability in the absence of proof of fault also offends the principles of fundamental justice (Motor Vehicle Reference [[1985] 2 SCR 486 ], at pp. 513–15).

[49] Justice Kasirer in Brown described extreme intoxication akin to automatism as being “the highest form of intoxication – that which results in a person losing voluntary control of their actions” (at para 45). He observed that extreme intoxication akin to automatism is “an exigent defence requiring the accused to show that their consciousness was so impaired as to deprive them of all willed control over their actions” (at para 50). He contrasted this state with waking up with no memory of committing a crime, which would not “prove that an individual was acting involuntarily” (at para 50).

B. The jury was not charged on automatism

[50] I conclude that the jury was not charged on extreme intoxication akin to automatism (hereafter, automatism) for two reasons. First, as I read her interactions with Crown and defence counsel, the trial judge found no air of reality to the defence. Second, notwithstanding Crown counsel’s submissions on appeal, I am not persuaded that the charge can be read as instructing the jury with respect to automatism, which is entirely consistent with the trial judge’s ruling as to there being no air of reality to that defence.

1. Air of reality: Automatism defence

[56] After hearing brief additional submissions on this point from both sides, the trial judge also observed, “I think [Crown counsel] has better described what -- why I’m not in agreement with there being a question of [Mr. Morris] being in an automatistic state such that he can’t be held responsible for the physical acts. The evidence was not there” (emphasis added).

[57] In my view, while the trial judge gave no written decision or detailed oral reasons, she did make a finding on the evidence. She held that there was no air of reality to the defence. As a result of this conclusion, she did not amend her charge to address the voluntariness of Mr. Morris’s actions, which would be an essential aspect of any charge on automatism.

2. No charge on automatism

a. Approach to reviewing a jury charge

[58] The Supreme Court has recently refocused the lens through which an appellate court should review a jury charge in R v Abdullahi, 2023 SCC 19, 483 DLR (4th) 1. Abdullahi establishes an approach that turns on whether the jury was properly equipped to answer the questions before it. In so deciding, the appellate court looks at whether the jury was “both accurately and sufficiently instructed to decide the case, as well as how the circumstances of the trial can inform the analysis” (at para 29). In addition to framing the overarching issues in this way, Rowe J. for the majority then set out a number of principles to assist in determining whether a jury had the necessary tools to render a verdict.

[59] Specifically, Rowe J. provided guidance on what it means for a jury to be properly equipped. In that regard, he wrote as follows, with my emphasis applied to those phrases of particular importance to this appeal:

[37] What does it mean for a jury to be “properly” equipped? Many terms have been used in the jurisprudence to describe errors in jury instructions that render a jury improperly equipped, notably “misdirection” and “non-direction”. In my view, the concept of “misdirection” is better understood in terms of whether the instructions would have equipped the jury with an accurate understanding of the law to decide the case. Similarly, the concept of “non-direction” is better understood in terms of whether the instructions would have equipped the jury with a sufficient understanding of the law to decide the case. Thus, it is helpful to view a properly equipped jury as one that is both (a) accurately and (b) sufficiently instructed. This requires the appellate court to have regard both to what was said and what was not said in the judge’s instructions. To be clear, the distinction between allegations of inaccuracy and insufficiency are not two separate grounds of review of a jury instruction for legal error, nor do they replace or depart from other terms that have been used in the jurisprudence to describe errors in jury instructions. An alleged error, depending on how it is framed, might raise concerns of both inaccuracy and insufficiency. In the end, these concepts are useful tools through which an appellate court may answer the ultimate question of whether, on a functional reading, the instructions properly equipped the jury to fulfil its role.

(Emphasis added)

[62] On the question of sufficient instruction, Rowe J. divided the issue into two: “(i) whether an instruction was required and (ii) whether an instruction that was required was given with sufficient detail” (at para 46).

[63] On whether an instruction was required, Rowe J. contrasted (a) obligatory instructions that must be given in every jury trial, like an explanation regarding the standard of proof, with (b) contingent instructions, like an R v Vetrovec, [1982] 1 SCR 811, warning or a defence required to be put to the jury on the basis of the evidence led at trial. Justice Rowe stressed, “[w]hen the circumstances of the case are such that a particular instruction is required, it is an error of law to omit it” (Abdullahi at para 49). I take it from this that, if an instruction is required, either because it is obligatory or contingent, the failure to provide the necessary direction means that the charge was insufficient.

[64] As to whether a particular instruction was sufficiently detailed, guidance can be taken from the jurisprudence, which has determined the content of the charge on the point in question. By way of example and relying on R v Lifchus, [1997] 3 SCR 320 at para 51, Rowe J. referred to the need to provide an instruction on reasonable doubt that goes beyond “simply stating the phrase ‘beyond a reasonable doubt’” (Abdullahi at para 51): similarly, see paragraph 22 of Lifchus.

[65] As with accuracy, Rowe J. stressed that “sufficiency of an instruction must be assessed in the context of the charge as a whole” (Abdullahi at paras 53), and the amount of the required detail depends on the circumstances: see also, paragraph 54. Further, formulaic reliance on a model jury instruction is not advisable and brevity remains the watchword: this is also discussed in paragraphs 55 and 56.

[66] Finally, Rowe J. considered the effect of the following on the assessment of the sufficiency of the jury charges under consideration in the appeals before the Supreme Court: “(i) the evidence; (ii) the closing arguments of counsel; and (iii) the lack of objection by defence counsel” (at para 59).

[68] Returning to the issue of the sufficiency of the evidence when reviewing a charge, Rowe J. indicated that the “overall strength of the Crown’s case is not a relevant consideration in the review of a jury instruction for legal error” (emphasis in original, at para 62).

[70] As to the role of the silence of counsel to offer criticism of the charge, either before or after it is delivered, Rowe J. confirmed earlier authority that counsel’s failure to object is relevant but not determinative. It is “simply one of many considerations under a functional approach” (Abdullahi at para 67)....

b. Reviewing the charge

[79] The trial judge then went on to charge the jury concerning the second element, noting that this was the requisite mens rea: “Second: Did Jamie Morris intend to commit a robbery?” and “This question has to do with state of mind, Jamie Morris’s state of mind when he demanded money from [the attendant] while appearing to carry a weapon”. In relation to this second element, the jury was instructed to consider the defence of intoxication:

The fact that a person does not remember what happened does not necessarily mean that he did not intend to do what he did at the time of the offence. Evidence of amnesia, or dissociated state, or automatism may reflect extreme intoxication and can be considered, along with all the other evidence, in deciding whether Jamie Morris was so intoxicated that he did not have the required intent at the time of the offence.

[80] The words automatism and automatistic appear in only four instances in the entirety of the jury charge concerning the attempt to commit robbery offence. All of these are in the instructions on the defence of intoxication. The first of these instances is in the underlined portions in the passage quoted above. The next three instances are below, in a summary of the opinion evidence of Dr. Mela:

Dr. Mela gave his opinion that on February 17, 2018 … .

[A witness’s] description of Mr. Morris having distinct looking, haunting eyes, matches the medical definition of a dissociative state. A dissociative or automatistic state is where the different functions of the brain are not linked together. What a person is thinking, remembering or remembering and what the person wants to do are disjointed, or dissociated. An individual in a dissociative or automatistic state appears as if his mind is not there, but the body can carry out complex tasks. The person lacks awareness of his environment, or his awareness is much reduced. Automatism, a type of dissociative state, allows a person to perform complex tasks without awareness and without control. Consistent with acting on auto pilot, or where the light is on, but no one is home.

(Emphasis added)

[81] The jury instructions followed a similar pattern for robbery...

[83] Having moved to the mens rea portion of the jury charge for the first part of the robbery count, the trial judge included instructions on the defence of intoxication, which were identical in substance to those provided in respect of the attempt to commit robbery count. In particular, as with the charge for the previous count, the words automatism and automatistic feature only four times, all within the instruction concerning the defence of intoxication:

[E]vidence of amnesia, or a dissociated state, or automatism may reflect extreme intoxication and can be considered, along with all other evidence, in deciding whether Jamie Morris was so intoxicated that he did not have the required intent at the time of the offence.

Dr. Mela said that [a witness] and [Mr. Morris’s ex-wife’s] description of Mr. Morris having distinct looking, haunting eyes, matches the medical definition of a dissociative state. A dissociative or automatistic state is where the different functions of the brain are not linked together. … An individual in a dissociative or automatistic state appears as if his mind is not there, but the body can carry out complex tasks. … Automatism, a type of dissociative state, allows a person to perform complex tasks without awareness and without control.

[85] It will be obvious from the above review that the jury charge does not follow the Canadian Judicial Council’s Model Jury Instructions for the defence of automatism. I recognize that rote adherence to the model jury charges is not advisable: see Abdullahi at paras 55 and 56. But, here, significant parts of the model jury charge on automatism are not present. For example, missing from the jury charge are the following:

(a) a definition of automatism;

(b) an instruction to the effect that a person who was in a state of automatism at the time of the commission of the offending act must be found not guilty;

(c) the caution that the law treats the defence of automatism with special care because it is an easy claim to make but difficult to verify;

(d) the instruction that the accused must prove that they were more likely than not, due to automatism, to have acted involuntarily; and

(e) a direction as to how to deal with evidence of possible automatism in relation to the actus reus of each element of each of the specific intent offences.

[68] As I see it, these absences from the charge conclusively demonstrate that the trial judge did not instruct the jury on automatism, or in the words of Abdullahi, the jury was not properly equipped to address that defence. This is, of course, entirely understandable because the trial judge found no air of reality to the defence or automatism.

[87] That brings me to the question of whether the trial judge erred by not instructing the jury on automatism, which turns on whether she erred by deciding there was no air of reality to that defence.

C. Error not to charge on automatism

a. Air of reality and automatism

[88] In R v Cinous, 2002 SCC 29, [2002] 2 SCR 3, the majority of the Supreme Court clarified the test for determining when a defence should be put to a jury. In summary terms, before leaving a defence with a jury, it is the trial judge’s duty to determine whether “the evidence put forward is such that, if believed, a reasonable jury properly charged could have acquitted” (at paras 60 and 156, quoting R v Osolin, [1993] 4 SCR 595 (WL) at para 66). Contained within this test is the principle that the trial judge does not “make determinations about the credibility of witnesses, weigh the evidence, make findings of fact, or draw determinate factual inferences” (Cinous at para 54). The evidence supporting the defence is assumed to be true. There is only “a single air of reality test [that] applies to all defences” (at para 57). Importantly, the air of reality test “imposes a burden on the accused that is merely evidential, rather than persuasive” (at para 52).

[91] In R v Daviault, [1994] 3 SCR 63 (WL), Cory J., for the majority, held that extreme intoxication akin to automatism is a defence to all crimes, including “even the minimal intent required of a general intent offence” (at para 59). The Supreme Court also held that, unlike other defences, the accused bears the legal burden of establishing extreme intoxication akin to automatism on a balance of probabilities: for example, see paragraphs 63, 64 and 67. Because of this legal burden, it is up to the accused to lead (a) “evidence as to the amount of alcohol consumed and its effect” on them, and (b) expert evidence to “confirm that [they were] probably in a state akin to automatism or insanity as a result of [their] drinking” (at para 63).

[92] In Stone, Bastarache J. extended the Daviault principle regarding the legal burden on the accused to demonstrate involuntariness on a balance of probabilities to all automatism defences, not just claims of extreme intoxication. He also recognized a presumption of voluntariness and a reversal of the burden of proof in all such cases:

[180] … The law presumes that people act voluntarily in order to avoid placing the onerous burden of proving voluntariness beyond a reasonable doubt on the Crown. Like extreme drunkenness akin to automatism, genuine cases of automatism will be extremely rare. However, because automatism is easily feigned and all knowledge of its occurrence rests with the accused, putting a legal burden on the accused to prove involuntariness on a balance of probabilities is necessary to further the objective behind the presumption of voluntariness.

[69] Justice Kasirer, writing in Brown, confirmed the presumption of voluntariness and the legal burden on the accused to prove involuntariness “on a balance of probabilities” (at para 56).

[93]....This bifurcation of roles between judge and jury gives rise to the question of whether the content of the air of reality test changes when automatism is alleged. In other words, does the trial judge weigh or evaluate the evidence to determine the likelihood of the accused being able to persuade the jury that their actions were involuntary, on a balance of probabilities?

[94] This issue was raised and resolved in R v Fontaine, 2004 SCC 27, [2004] 1 SCR 702. The trial judge in Fontaine had held, on the basis of dicta in Stone, that it was the judge’s obligation, as part of the air of reality test, to determine whether the accused would be able to surmount the burden to demonstrate involuntariness on a balance of probabilities. The Québec Court of Appeal held that this was an error of law and ordered a new trial. The Supreme Court agreed and dismissed the appeal from that decision. Justice Fish, for the Supreme Court, wrote as follows:

[54] In the case of “reverse onus” defences, such as mental disorder automatism, it is the accused who bears both the persuasive and the evidential burdens. Here, the persuasive burden is discharged by evidence on the balance of probabilities, a lesser standard than proof beyond a reasonable doubt. Reverse onus defences will therefore go to the jury where there is any evidence upon which a properly instructed jury, acting judicially, could reasonably conclude that the defence has been established in accordance with this lesser standard.

[92] In this regard, I repeat once more, the applicable test is whether there was any evidence in the record upon which the jury, properly instructed and acting judicially, could reasonably conclude that the defence of automatism by reason of mental disorder had been made out. In my view, the Court of Appeal did not err in finding that the respondent, through his own evidence and that of [another witness], had discharged his evidential burden on that issue.

(Emphasis added)

[95] Justice Fish also made it clear that it would be an error for a trial judge to assess “the likely success of the defence” or to “require the judge to weigh the evidence in order to determine whether it establishes, on the balance of probabilities, that the accused perpetrated the criminal act charged in a state of automatism” (at para 83). The test is that fixed by Fish J.: an air of reality exists where there is any evidence upon which a properly instructed jury, acting judicially, could reasonably conclude that the defence has been established on a balance of probabilities.

b. Evidence met the air of reality test

[97] To Crown counsel’s credit, she advised the Court that one reason why the Crown took the position that the trial judge had charged the jury on automatism was because of Dr. Mela’s evidence. In other words, in light of Dr. Mela’s report and testimony, there was evidence that met the air of reality test. I agree with the Crown on this point.

[98] In Stone, for the majority, Bastarache J. held that, in order for an accused to discharge their evidentiary burden, “an accused must claim that he acted involuntarily at the relevant time … [A] mere assertion of involuntariness will not suffice” (at para 183). While the nature of the expert’s expertise varies from case to case, the general principle remains the same: an accused’s evidence alone will not be sufficient.

[101] Mr. Morris testified. He said he had no memory of the events, but his counsel submitted, based on all of the evidence, that his client was acting involuntarily. This is the evidence in support of that claim:

(a) Witnesses testified to Mr. Morris’s level of intoxication. As well, one hour after the events, Mr. Morris was taken to the police station and provided two samples of his breath. The first sample of his breath was 160 mg of alcohol in 100 mL of blood. The second was 140 mg.

(b) Dr. Mela testified that, in his view, Mr. Morris was acting in an automatistic state.

(c) Dr. Mela testified that the amount of alcohol consumed by Mr. Morris would act differently on Mr. Morris’s neuropathic brain than for other individuals.

(d) All defence witnesses agreed that Mr. Morris’s actions on the night in question were completely out of character. He has no criminal record. There was no evidence of any criminal acts having occurred in the past.

(e) Mr. Morris’s former wife testified that there had been other occasions when Mr. Morris had been drinking heavily at home when he had acted as if a switch had been flipped and he no longer seemed to be present. There was also medical evidence of a past incident of a dissociative experience.

(f) The witnesses at the Tempo Truck Terminal described Mr. Morris as “if the lights were on, but nobody was home”. They also described, variously, the strange look in his eyes, “having distinct looking, haunting eyes” and that his eyes “were pitch black, and glossy, and wide-open”.

(g) Some of Mr. Morris’s actions surrounding the criminal acts in question were bizarre: for example, taking money, offering to give it back, putting money back in the till and stuffing it down C.K.’s clothing, proceeding to another venue to then try to steal other funds. It is also perhaps noteworthy, as previously mentioned, that Mr. Morris was unmasked and wearing business clothing.

[102] However, there was no direct evidence that Mr. Morris acted involuntarily. The evidence was largely circumstantial.

[103] In Cinous, McLachlin C.J. and Bastarache J. followed R v Arcuri, [2001] 2 SCR 828, and held that it is appropriate, in the absence of direct evidence, to engage in a limited weighing to determine whether the circumstantial evidence is reasonably capable of supporting the inferences that the accused would ask the jury to draw: see paragraph 34. In Fontaine, Fish J., however, made it clear that the judge does not decide the issue for the jury:

[105] In this case, of course, there was also evidence going the other way. Most of what happened at the Husky Market and at the Tempo Truck Terminal was captured on video, showing a series of steps taken by Mr. Morris from which a jury might conclude that he was acting voluntarily:

(a) By the use of a finger in a pocket, he was able to give the appearance that he had a gun.

(b) C.K. testified that Mr. Morris asked her on several occasions not to call the police.

(c) Part of the sexual assault described by C.K. took place where there was no video surveillance: from which, a jury might infer that Mr. Morris knew what he was doing and was directing his actions.

(d) Mr. Morris engaged in conversation with the complainants.

(e) Under cross-examination by Crown counsel, Dr. Mela agreed that certain actions, which Mr. Morris had performed, could be taken as demonstrating rational thinking.

[106] However, as Cinous and Fontaine indicate, it is neither the task of this Court nor the trial judge to weigh evidence or determine the credibility of the witnesses when deciding if the evidence meets the air of reality test. It is a question of inference and a limited weighing only.

[107] The question of whether there is evidence that satisfies that test is a question of law: “the interpretation of a legal standard (the elements of the defence) and the determination of whether there is an air of reality to a defence constitute questions of law, reviewable on a standard of correctness” (R v Tran, 2010 SCC 58 at para 40, [2010] 3 SCR 350). In other words, an appellate court asks the same question as the trial court. Paraphrasing Fontaine at paragraphs 54 and 92, the question in this appeal is whether there is some evidence upon which a properly instructed jury, acting judicially, could reasonably conclude that the defence has been established on a balance of probabilities. As I review the evidence mentioned above, I answer that question affirmatively. There was an assertion of non-mental disorder automatism and a logically probative opinion of a qualified expert. In my respectful view, it was an error of law for the trial judge not to have left the defence of automatism with the jury. The balance of the evidence, and the full consideration of it, will be for the trier of fact.

IV. Conclusion

[110] The appeal is allowed with respect to all three convictions and a new trial is ordered.