Stone was driving to see his two gay sons from a previous marriage with his wife. She did not want him to see them and as a result of her reticence he was only able to visit with them for 15 minutes. On the drive back his wife continued to berate him, telling him he was a loser, that he was terrible in bed, that he had a small penis, and that she was going to go to the police with trumped up assault charges. He pulled the car over and put his head down. He testified that he blacked out and felt a "woosh" go through his body. When he came to he had stabbed her 47 times with a hunting knife that he kept in the car. He hid her body in his truck's tool chest, picked up a six pack, drove home, left a note for his daughter, and took off to Mexico. After a few weeks in Mexico he decided to return to Canada and turn himself in. He also a rapist.
In his defence, Stone pleaded insane automatism, non-insane automatism, lack of intent, and in the alternative, provocation. The judge allowed for a defence of insane automatism which was presented to the jury. The jury convicted him of manslaughter and sentenced him to seven years. The verdict was upheld by the Court of Appeal.
- Should the defense of non-insane automatism have been left to the jury?
There was significant evidence given by psychiatrists for the Crown and the defence. They both agreed that Stone's situation sounded like he had a condition induced by the words that put him in an "dissociative state", and that if this were true he would have been unable to control his actions, however, there is no way to prove that this happened beyond his testimony.
Bastarache, writing for the majority (a 5-4 split), clearly differentiates between insane and non-insane automatism. Insane automatism results from a disease of the mind, and is completely covered by s.16. If it is successfully proven then a special verdict will be entered. On the other hand, non-insane automatism does not stem from a disease of the mind and, if successful, results in an acquittal of the defendant. He says that "true" automatism does not result from a disease of the mind; when that happens it is a mental disorder.
Bastarache then sets out the test for establishing automatism. First, the accused needs to establish a proper basis for the defence of automatism on a balance of probabilities. This burden shift violates s.11(d) of the Charter, but is saved by s.1. In law, there is a presumption of voluntariness. In order to establish this burden the accused must give expert evidence to go along with their claim of automatism.
If this burden is met, the judge must then decide whether mental disorder or non-mental disorder automatism should be left to the jury. The judge must decide whether there is a "disease of the mind" present. If one is present, then a special verdict will be entered as per s.16. If none is present, then only the defence of non-disorder automatism can be left to the jury. The question will then be if the accused acted involuntary on a balance of probabilities – if he did, then he is acquitted.
When charging the jury about automatism, the judge must be careful to emphasize the importance of voluntariness in criminal convictions, and concerns about the repute of the administration of justice associated with the defence of automatism.
In the case at bar, the trial judge did not err in not charging the jury about automatism because the accused did not establish evidence on a balance of probabilities that would lead to the defence being accepted.
A claim of the defence of automatism has two steps:
- The accused must establish, on a balance of probabilities, that there is sufficient evidence (if believed) to make the defence operate. In order to do this the accused must have expert evidence to go along with his or her testimony. If this is not met, then the defence fails.
- The judge must decide if there is a disease of the mind. If there is, then a special verdict is entered and normal s.16 procedures are followed. If there is not, then the question must be left to the jury if the accused acted involuntarily. If he did, then he is acquitted.