R. v. L.(P.R.), 2013 ONCJ 322

Citation: R. v. L.(P.R.) , 2013 ONCJ 322 IN THE MATTER OF the Highway Traffic Act, R.S.O. 1990, c. H.8 Between Her Majesty The Queen prosecutor and P. R. L. defendant Ontario Court of Justice Brampton, Ontario Quon J. P. Reasons for Judgment Charges: s. 128 H.T.A. – “speeding: 105 k.p.h. in posted 60 k.p.h. zone”. s. 216 H.T.A. – “fail to stop for a police officer and willfully continued to avoid police while a police officer gave pursuit pursuant to s. 216(2) and (3)”. s. 142(1) H.T.A. – “fail to signal lane change”. s. 7(5)(

a) H.T.A. – “fail to surrender permit”.

Trial held: October 9, 2012 and March 5, 2013. Judgment rendered: June 11, 2013. Counsel: R. Prihar and J. Stinson, prosecutor P. R. L., unrepresented Cases Considered or Referred To: Bratty v. Attorney-General for Northern Ireland, [1963] A.C. 386 (H.L.). Centre for Addiction and Mental Health v. Ontario, 2012 ONCA 342 (O.C.A.), per Simmons, Blair and Hoy JJ.A. R. v. Bleta, (SCC), [1964] S.C.R. 561 (S.C.C.). R. v. Chartrand, (SCC), [1977] 1 S.C.R. 314 (S.C.C.). R. v. Chaulk, (SCC), [1990] 3 S.C.R. 1303 (S.C.C.). R. v. Cummings (1995), (NB KB), 159 N.B.R. (2d) 218 (N.B.Q.B.). R. v.

Daviault (1994), (SCC), 93 C.C.C. (3d) 21 (S.C.C.). R. v. David (2002), (ON CA), 169 C.C.C. (3d) 165 (O.C.A.), per Weiler, Sharpe and Simmons JJ.A. R. v. Dilorenzo and Bancroft (1984), (ON CA), 45 O.R. (2d) 385, 11 C.C.C. (3d) 13 (O.C.A.), per Martin, Goodmanand Robins JJ.A. R. v. Dillman, [2008] O.J. No. 1120 (QL) (O.C.J.), per Duncan J. R. v. Fox (2003), 2003 BCPC 346 , 45 M.V.R. (4th) 199, [2003] B.C.J. No. 2346 (QL) (B.C. Prov. Ct.). R. v. Parks, (SCC), [1992] 2 S.C.R. 871 (S.C.C.).

R. v. Hickey (1976), (ON CA), 70 D.L.R. (3d) 689, 30 C.C.C. (2d) 416 (O.C.A.) per Jessup, Martin and Wilson, JJ.A. R. v. Sault Ste. Marie, (SCC), [1978] 2 S.C.R. 1299 (S.C.C.). R. v. Stone (1999), (SCC), 134 C.C.C. (3d) 353 (S.C.C.). Statutes, Regulations and Rules Cited: Criminal Code, R.S.C. 1985, c. C-46, ss. 2, 16(1), 16(2), 16(3). Mental Health Act, R.S.O. 1990, c. M.7, ss. 17, 33.1, 33.1(1). Highway Traffic Act, R.S.O. 1990, c. H.8, ss. 7(5)(a), 128, 142(1), 203, 214(1), 216, 216(1), 216(2), and 216(3). Provincial Offences Act, R.S.O. 1990, c. P.33, s. 44, 44(1)(d).

Reference Material Cited: Bloom, H. and Schneider, R.D. Mental Disorder And The Law: A Primer for Legal and Mental Health Professionals (Toronto, Ontario:Irwin Law Inc., 2006). Libman, R. Libman on Regulatory Offences in Canada (Salt Spring Island, B.C.: Earlscourt Legal Press Inc., 2002) (in update 8 -November 2006). Medical Review Section, online: Ontario Ministry ofTransportation website<<http://www.mto.gov.on.ca/english/dandv/driver/medical-review/faq.shtml>>. Roach, K. Criminal Law, 5th ed. (2012) (Toronto, Canada: Irwin Law Inc., 2012).

Exhibits entered: Exhibit "1" - letter dated March 1, 2013, on Trillium Health Centre letterhead, from Suzanne Legault, MD, FRCP(C), ConsultingPsychiatrist, South Etobicoke ACT Team, regarding P. R. L., that certifies that P. R. L. suffers from a mental illness, namely Bipolar

Disorder, and that this condition was first diagnosed in 2010, and that the infractions which occurred in March 2011 may have resulted from poor judgment arising from P. R. L.’s mental disorder. In addition, the letter also indicates that more recently, from June to December 2012, P. R. L. was ill with manic psychosis, and that this condition had interfered with P. R. L.’s appreciation of reality and led P. R. L. to engage in a number of actions, which were dictated by P. R. L.’s psychotic state of mind. In addition, the letter indicates that P. R.

L. was hospitalized at Trillium Health Centre from December 31 to February 11, 2013 for treatment of P. R. L.’s Bipolar Disorder. As well, the letter indicates that P. R. L. is currently living in the community under a Community Treatment Order and the supervision of

an ACT team (1 page). 1. INTRODUCTION [ 1 ] “P. R. L.”, the defendant, was charged with committing several traffic and parking offences in 2011 and 2012,. However, in 2010, which is prior to the period when these offences were allegedly committed, the defendant had been diagnosed with having a bipolar mood disorder. Heartbreakingly, the defendant presently resides in a shelter, has no income, and has lost the custody of her child.

She has also been hospitalized for her mental illness, but is currently living in the community under the supervision of a Community Treatment Order, which has been issued by a physician under s. 33.1(1) of the Mental Health Act , R.S.O. 1990, c. M.7. Community Treatment Orders, which usually last for six months and which may be renewed, provide persons who suffer from a serious mental disorder with a comprehensive plan of community-based treatment, care, and supervision, which is less restrictive than being detained in a psychiatric facility.

Furthermore, these community-based treatment initiatives, which allow persons with a serious mental disorder to continue living in the community, is delivered to them by an Assertive Community Treatment (ACT) team, which is comprised of professionals with backgrounds and training in social work, rehabilitation, counselling, nursing, and psychiatry. [ 2 ] For the present regulatory charges, the defendant had been operating a motor vehicle on March 21, 2011, in the City of Brampton, which resulted in her being charged with committing four

Part III offences under the Highway Traffic Act , R.S.O. 1990, c.

H.8, namely: (1) for speeding 105 k.p.h. in a posted 60 k.p.h. zone, which is contrary to s. 128; (2) for failing to stop for police officer and for willfully continuing to avoid police while a police officer gave pursuit according to s. 216(2) and (3), which is contrary to s. 216(1); (3) for failing to signal a lane change, which is contrary to s. 142(1); and (4) for failing to surrender a permit for the vehicle she had been operating, which is contrary to s. 7(5)(a). [ 3 ] In response to these charges, the defendant has submitted a letter written by a psychiatrist from the Trillium Health Centre in Mississauga, which indicates the defendant is being treated for a bipolar disorder and that her actions in respect of the traffic offences may have been due to her mental disorder.

Specifically, the letter from the psychiatrist confirmed the defendant had been diagnosed with the bipolar disorder in 2010 and suggested that the defendant’s parking and Highway Traffic Act charges, which she had accumulated in 2011 and 2012, may have resulted from the defendant’s poor judgment due to the defendant’s mental disorder, and that she had been recently hospitalized for approximately 6 weeks between December 31, 2012 to February 11, 2013. [ 4 ] However, the prosecution, in their reply to the mental disorder issue, raises concerns about the veracity of this particular defence and the use of the mental disorder defence in general, especially when the evidence of the defendant’s state of mind at the time of the offence is being based on a medical letter that could be obtained and used by an accused person inappropriately. [ 5 ] Ergo , the principal issue to be resolved in deciding whether the prosecution has proven the defendant committed the four offences beyond a reasonable doubt, is whether the defendant can rely on the mental disorder defence as an excuse for her actions on the day in question, which is based on a letter from a psychiatrist who did not testify at the trial of the four regulatory charges. [ 6 ] Moreover, the trial of these four charges had been held on two separate days: October 9, 2012 and March 5, 2013.

However, it was not until March 5, 2013, when the court had been first made aware of the defendant’s medical condition and the possibility of the

mental disorder defence and the issue of whether the defendant should be found not legally responsible for committing these four regulatory offences because of her mental disorder. However, no expert evidence about the nature and severity of the defendant’s mental disorder had been called or presented to the court, especially as it would relate specifically to the defendant’s actions on March 21, 2011.

In addition, the only testimony about the defendant’s mental illness came from the defendant’s social worker, who had been working with the defendant for the last month, as part of the Assertive Community Treatment team that is overseeing the defendant’s Community Treatment Order. Consequently, because of the defendant’s mental disorder issue and its possible effect on the outcome of the trial, I reserved judgment and adjourned the matter until to June 11, 2013, to render my decision. These, therefore, are my written reasons for judgment: 2. THE CHARGES [ 7 ] Under a

Part III information sworn on April 11, 2011, the defendant had been charged with committing four Highway Traffic Act offences: (1) speeding 105 k.p.h. in a posted 60 k.p.h. zone; (2) fail to stop for police officer and willfully continue to avoid police while a police officer gave pursuit; (3) fail to surrender permit; and (4) fail to signal lane change. T hese four charges are specifically the following :

(1) P. R. L. of [removed to protect privacy], Mississauga Ontario on or about the 21st day of March 2011, at the City of Brampton in the Central West Region did commit the offence of did unlawfully drive a motor vehicle, license number [removed to protect privacy] on a highway to wit: Hurontario Street at a greater speed than the speed limit, to wit: at 105 km/her in a posted 60 km/hr zone Contrary to

Section 128 of the Highway Traffic Act

(2) AND FURTHER THAT P. R. L. on or about the 21st day of March 2011, at the City of Brampton in the Central West Region, being the owner of a motor vehicle, did unlawfully fail to immediately bring the said motor vehicle to a safe stop when required to do so by a police officer, who was readily identifiable as such in the lawful execution of his duties and responsibilities, AND IT IS FURTHER ALLEGED PURSUANT TO SUBSECTION 216(2)

(3) OF THE ACT DID WILFULLY CONTINUE TO AVOID POLICE WHILE A POLICE OFFICER GAVE PURSUIT Contrary to Section 216(1) of the Highway Traffic Act

(3) AND FURTHER THAT P. R. L. on or about the 21st day of March 2011, at the City of Brampton in the Central West Region, being the operator of a motor vehicle, license number [removed to protect privacy] did operate the said motor vehicle on Hurontario Street at approximately 1:25 p.m., and before changing from one lane to another lane of traffic, did unlawfully fail to give a signal plainly visible to the driver or operator of another motor vehicle, of the intention to make such a movement, Contrary to Section 142(1) of the Highway Traffic Act

(4) AND FURTHER THAT P. R. L.

on or about the 21st day of March 2011, at the City of Brampton in the Central West Region, did operate a motor vehicle, license number [removed to protect privacy] on a highway, to wit: Hurontario Street at approximately 1:25 p.m., and did unlawfully fail to carry the permit or a true copy thereof for said motor vehicle, and did unlawfully fail to surrender such copies for inspection on demand of a police officer, Contrary to Section 7(5) (

a) of the Highway Traffic Act 3. BACKGROUND (

a) SUMMARY OF EVENTS [ 8 ] For the present traffic charges, the defendant had been driving a light-blue coloured two-door Toyota Echo motor vehicle southbound on Hurontario Street in the City of Brampton on March 21, 2011, at approximately 1:25 p.m. At the same time, Cst. Christine Judd, a police officer with the Peel Regional Police, who had been in her full police uniform and who had been situated in her low-profile police cruiser that had been parked and facing westbound on Pine Ridge Lane, which was on the northbound side of Hurontario Street in the City of Brampton. Cst.

Judd had been specifically at that location doing speed enforcement and had been monitoring the speed of vehicles travelling northbound and southbound on Hurontario Street with a Laser Atlanta unit, which is a device that can accurately measure the speed of moving vehicles, as wells as determining the distance a vehicle is away from the laser device when a speed reading is done. [ 9 ] In addition, the interaction between Cst. Judd and the defendant began when Judd first observed the defendant’s light-blue coloured Toyota Echo motor vehicle approaching Cst.

Judd’s position and travelling at a high rate of speed in the passing lane of the southbound lanes of Hurontario Street. Judd then aimed the laser unit or speed measuring device at the front grill of the defendant’s vehicle and obtained a reading of 105 k.p.h., which had exceeded the posted speed limit of 60 k.p.h. for the area the vehicle had been travelling in. There were speed limit signs or markers on Hurontario Street located approximately every 200 meters that indicated the speed limit was 60 k.p.h. for that area. The speed limit did not change to 80 k.p.h. until further south of where Cst.

Judd had been situated. [ 10 ] Once the laser device’s reading had indicated that the speed of the defendant’s vehicle had exceeded the posted speed limit by 45 k.p.h., Officer Judd then moved her cruiser to go into the southbound lanes of Hurontario Street, so she could follow and pursue the speeding vehicle.

Shortly after she got into the southbound lanes of Hurontario Street, she turned on the cruiser’s flashing lights and siren and then got behind the defendant’s vehicle. [ 11 ] Despite the police cruiser’s lights and siren having been activated for signalling the defendant to pull her vehicle over, the defendant did not immediately stop her vehicle and had only brought her vehicle to a stop when the traffic in front of her vehicle had to come to a stop for a red light at the intersection of Sir Lou Drive and Hurontario Street. Once the defendant’s vehicle had come to a stop, Cst.

Judd exited the cruiser, walked to the driver’s side window of the defendant’s vehicle, and then looked at the female defendant, who had been the lone occupant in the vehicle and occupying the driver’s seat. Judd then made several demands of the defendant to produce her driver’s license, ownership, and insurance for the motor vehicle, as well as to pull over at the next exit. [ 12 ] However, Cst. Judd said the defendant had refused to provide Judd, who had been in her full police uniform, with the requested license and documents.

Then, when the traffic light for the southbound lanes of Hurontario Street had changed to a green light, Judd said the defendant just moved her vehicle forward and continued driving southbound on Hurontario Street, without pulling over at the next exit. Because the defendant had driven off when the light turned green, Cst. Judd had to get back into her cruiser and continue the pursuit of the defendant’s motor vehicle. [ 13 ] In addition, Cst. Judd said that she observed the defendant’s vehicle drive in and out of traffic and changing lanes several times without signalling.

Then, several kilometers later, the defendant’s vehicle had to come to a stop for a red light at the intersection of Derry Road and Hurontario Street. Because of concerns about the defendant driving off again, Cst. Judd maneuvered her cruiser in front of the defendant’s vehicle in order to block in the vehicle and to prevent it from driving off. Judd had also called for the assistance of other police officers at that point. In response to Judd’s call, two other police officers in a police cruiser then arrived at the intersection of Derry Road and Hurontario Street.

[ 14 ] Cst. Judd then exited her vehicle once gain and tried to talk with the defendant. She also made another request to the defendant to produce her driver’s license, ownership, and insurance documents for the vehicle, but the defendant only rolled down her window about an inch. In addition, the defendant did not unlock or open her door until the other two police officers arrived at Derry Road. It was only then that Cst. Judd had been able to obtain the defendant’s driver’s license and determine the name on the driver’s license was “P. R.

L.”, at which point Judd had been satisfied with the identity of the female driver of the Toyota Echo motor vehicle as the defendant. Judd then directed the defendant to pull into the gas bar at the southwest corner of the intersection of Derry Road and Hurontario Street. [ 15 ] Once they were at the gas bar, Officer Judd then charged “P. R. L”, the defendant, with committing four

Part III offences under the Highway Traffic Act and personally served summonses on the defendant at that time to appear in court on May 19, 2011, at the Ontario Court of Justice at the Brampton Provincial Offences courthouse on Ray Lawson Boulevard in Brampton. [ 16 ] A

Part III information containing the four charges was then sworn on April 11, 2011, at which time the summonses that had been issued by Cst. Judd to the defendant, were also confirmed. However, the defendant did not appear at the courthouse May 19, 2011, and the defendant’s four charges were then scheduled for an ex parte trial to be held on September 6, 2011. On September 6 th , the ex parte trial did not proceed as the court had decided to issue a bench summons to the defendant to appear on October 27, 2011.

On October 27 th , someone representing the defendant appeared and the matter was adjourned to January 12, 2012, to be spoken to. On January 19 th , the matter was adjourned again to March 1, 2012, to be spoken to. On March 1 st , the matter was adjourned once more to April 19, 2012, to be spoken to and marked peremptory to set a trial date. On April 19 th , the matter was finally set down for a trial to be held on October 9, 2012. [ 17 ] On October 9, 2012, the trial of the four charges did commence. However, the defendant was no longer represented and the defendant proceeded to represent herself.

In addition, the trial was held over two days: October 9, 2012 and March 5, 2013. At the trial, two witnesses testified. There had been one witness for the Crown and one witness for the defence:

(1) Officer Christine Judd, the police officer who had charged the defendant with the four regulatory offences and

(2) Merlanie Tapang , the social worker assisting the defendant under the Community Treatment Order. (

b) SUMMARY OF TESTIMONY [ 18 ] The following is a

summary of the testimony given by the two witnesses who had testified at the trial:

(1) Officer Christine Judd [ 19 ] Cst. Christine Judd had testified she had been working the day shift in the Regional Traffic Unit on Monday, March 21, 2011. She also said for that particular day it had been overcast, mild, lightly raining, and that the roads had been wet. [ 20 ] In addition, Cst. Judd said at approximately 6:00 a.m. she had signed out a Laser Atlanta Speed Laser 3, with Serial Number 22597.

Also, at that time she said she had tested that laser unit according to manufacturer's specifications and that the laser unit had been found to be functioning normally. [ 21 ] Then at approximately 8:20 a.m., Cst. Judd said she had attended to the location of Hurontario Street, north of Charolais Boulevard, in the City of Brampton, to conduct speed enforcement in that area. She also said she had been operating a low profile white- coloured cruiser and that she had been in full police uniform. Furthermore, she said that as she entered that area she had observed numerous speed markers north of Steeles Avenue.

She further said that the speed markers were clear and visible to north and southbound traffic and were located approximately every 200 metres or so. [ 22 ] In addition, Cst. Judd said she had set up her cruiser so that it was facing westbound on Pine Ridge Lane, which is located on the northbound side of Hurontario. She also said that from that setup she had been able to clearly observe north and southbound traffic on Hurontario Street. In addition, she said the traffic had been moderate to heavy.

Furthermore, she said that she had been operating the laser unit from within her cruiser and that she had observed numerous vehicles in the area that were travelling at or below 60 kilometers per hour, which she said was the speed limit in that area.

[ 23 ] Then, later that afternoon, at approximately 1:25 p.m., Cst. Judd said she had observed a light blue two-door Toyota Echo motor vehicle, which had been southbound in the passing lane on Hurontario Street, travelling at a very high rate of speed. She then said she pointed her laser unit at this particular vehicle and the laser unit had registered a reading of 105 kilometers per hour in that zone. Furthermore, she said she had a continuous view of that Toyota Echo motor vehicle and that it had been passing other vehicles on the roadway at the time. [ 24 ] In addition, Cst.

Judd said she then immediately pulled out of her location because she had been lucky enough to have clear traffic, as there had been no northbound traffic at that time. She also said she had been able to pull in behind that Toyota motor vehicle that had the licence plate number of [removed for privacy]. In addition, she said she had then been able to position her cruiser behind the Toyota vehicle and had attempted to stop the vehicle by activating the cruiser’s sirens and police lights, which had been a signal for the driver of the vehicle to pull over and stop.

Furthermore, she said the driver of the Toyota vehicle did have some clear areas in which the vehicle could have been pulled over and stopped on the roadway. However, she said the vehicle did not stop. Instead, she said the Toyota vehicle continued on at a high rate of speed, which made Judd continued to follow that vehicle.

However, she said the Toyota Echo did slow down, as it approached the intersection of Sir Lou Drive and Hurontario Street because it had no other alternative but to stop, due to the traffic immediately ahead of it being backed up at that point for the traffic lights, which had changed to a red light. Furthermore, she said the police lights on her cruiser were still activated at that point. [ 25 ] Cst. Judd also said that when she was behind the Toyota Echo motor vehicle, she had only observed one occupant to have been in the vehicle.

She also said that after the Toyota vehicle had come to a stop, she had exited her cruiser and then approached the driver's side of that vehicle. She then said she had observed a female person, which she then identified as the defendant. [ 26 ] In addition, Cst. Judd said the defendant had been in the driver's seat and that there were no other persons in the vehicle. Judd then said she had made a demand of the defendant to provide Judd with a driver's licence and insurance. However, Judd said the defendant refused to comply with Judd’s request.

In addition, Judd said the driver had refused to pull over from that location after Judd had requested the defendant to drive forward once the lights had changed to green and pull into the next roadway exit located by the Ray Lawson courthouse. [ 27 ] Furthermore, during the time when Cst. Judd had been having this conversation with the defendant during the red light phase in which Judd said she had been telling the defendant to turn off the roadway, the traffic lights then changed again to green and the defendant sped off from that location while Cst Judd had been standing beside the defendant’s vehicle.

Judd also said the defendant’s vehicle continued southbound on Hurontario Street, but had refused to pullover as Judd had requested. Judd then said she turned and got back into her cruiser and went after the defendant. [ 28 ] Cst. Judd also said the defendant’s vehicle at that point had been going at a normal rate of speed, due to the amount of traffic in the area.

She then said she had been able to pull up behind the defendant’s vehicle once again and had made several attempts with the cruiser’s police lights and siren to have the defendant pull over. [ 29 ] Furthermore, in describing the second time she had attempted to stop the defendant, Cst. Judd said it had been at Ray Lawson Boulevard. However, she said the defendant did not pullover at that location, but had continued on down to Derry Road. [ 30 ] Then, as Cst. Judd approached Derry Road in her cruiser, she said she had observed the traffic lights for southbound traffic at Derry Road just turning red.

At that point, Judd said the defendant had stopped at the red light at Derry Road because there had been so much traffic on the roadway at that time. When Cst. Judd finally reached Derry Road, she said she then took the opportunity to pull beside the defendant’s vehicle and then pull ahead of the defendant’s vehicle and then drive into the crosswalk and traffic, and then pulled her cruiser back to block the defendant’s vehicle from the front.

She then said the defendant’s was blocked in so that it could not move and that there would have been no way for the defendant to exit that location without hitting other vehicles. [ 31 ] Cst. Judd also said she then exited her cruiser and then made a request of the driver of a transport trailer that had been behind the defendant to pull up slightly in order to block in the defendant, as Judd had not been certain whether the defendant would flee again. Judd further said she had been concerned about her safety and had wanted to make sure the defendant would not be going anywhere. [ 32 ] Furthermore, Cst.

Judd said there had been very heavy traffic in that area.

[ 33 ] In addition, Cst. Judd said she then approached the driver's side of the defendant’s vehicle which had been stopped at Derry Road, and again made a request to the defendant for the defendant’s driver's licence, insurance, and permit. However, Judd said the defendant had refused her request and had only rolled her window down approximately one inch. [ 34 ] Cst. Judd then said she had continued to have a conversation with the defendant and had tried to explain to the defendant that the defendant had been required to provide these documents to Judd.

Judd then said the defendant had refused to provide Judd with the requested documents. [ 35 ] At this point, Cst. Judd said she had become quite concerned and had requested assistance from other police officers. She also said that shortly after she made her call for assistance, two other police officers then attended and stood by at the scene. In addition, Judd said that it had been only after the other officers had arrived was the point at which the defendant finally unlocked her vehicle and opened the door. [ 36 ] Cst.

Judd then said the defendant informed Judd that the defendant’s driver's licence had been in the defendant’s purse. When Cst. Judd obtained the defendant’s driver's licence, Judd observed that it had been indeed the defendant's driver's licence, with the name “P. R.

L.” Judd also said the driver’s license had been a valid Ontario photo card and that Judd had been satisfied with the identification of the defendant and that the driver of the Toyota Echo had been the defendant who was presently in the courtroom [ 37 ] However, Judd said the defendant had not been able to provide her permit for the vehicle, but did provide Judd with an expired insurance slip. In addition, Judd said she later confirmed through the insurance company that the defendant had insurance for the vehicle. [ 38 ] Cst.

Judd also explained that once the documents had been obtained from the defendant, Judd had wanted to remove themselves from the roadway for safety concerns, due to the heavy traffic in the area where they were. Judd then said the defendant had calmed down at that point and Judd had directed the defendant to follow Judd southbound to the next exit, which had been the gas bar that was just to the southwest of Derry Road, off of Hurontario Street. She also said the other police officers had followed behind the defendant’s vehicle to the next exit. [ 39 ] Then, when they were at the gas bar, Cst.

Judd said she then issued the defendant with four

Part III tickets: one for the offence of speeding 105 kilometers per hour in a 60 kilometer per hour zone, one for driver fail to stop when directed by police, one for fail to signal lane change, and the final ticket was for fail to surrender permit for motor vehicle. [ 40 ] In respect to the “fail to signal lane change” charge, Cst. Judd said that while the defendant’s vehicle had been travelling southbound she had observed the vehicle change lanes numerous times, trying to travel through traffic, and did not make any signalling while accelerating. [ 41 ] Then, at approximately 2:56 p.m., Cst.

Judd said she had returned to her division where she had re-tested the laser unit and had found that it had been functioning normally. Moreover, she said that prior to returning to her division she had re-attended the area of Hurontario Street and had observed that the speed markers were still clear and visible in that area. [ 42 ] In addition, Cst. Judd said that she is a qualified laser operator and was last qualified in April of 2011.

She also explained that the laser device would accurately measure speed and distance of a moving vehicle and that the laser unit is very precise, and that when the device is pointed directly at a single vehicle it will register only the speed of that particular vehicle. Moreover, she confirmed that had been what had occurred when she had aimed the laser unit at the defendant’s vehicle. [ 43 ] Furthermore, Cst. Judd said she did not lose sight of the defendant’s vehicle.

In addition, she estimated that the distance she had travelled from the moment she had activated her siren and lights to the point at which the defendant had actually pulled over, had been about five kilometers. [ 44 ] Moreover, Cst. Judd described the appearance of the low-profile police cruiser she had been operating that day as being a white- coloured police cruiser with muted police markings on it that are white and reflective and is not like a typical police cruiser that is blue and white.

[ 45 ] Cst Judd also said she had tested her cruiser in the morning before she left the area of the station and said that both the siren and the lights for the vehicle had been working normally. [ 46 ] In addition, Cst. Judd said she had been the one who had written the synopsis that had been provided in the disclosure. [ 47 ] When questioned about the speed limits for Hurontario Street, Cst. Judd replied that the speed limit for Hurontario Street, north of Charolais Boulevard, in Brampton, is 60 kilometers per hour at that location.

She also said there was a police station located south of that area at Sir Lou Drive and Hurontario Street. [ 48 ] Cst. Judd also said she had requested assistance of other police officers once she had gotten to the intersection of Derry Road and Hurontario Street. [ 49 ] In addition, Cst. Judd said she had identified herself to the defendant as Constable Judd. [ 50 ] In explaining how the defendant had been identified in the moderate to heavy traffic that day, Cst.

Judd said she had observed the defendant’s light-blue coloured two-door Toyota Echo motor vehicle travelling in the passing lane at a very high rate of speed southbound on Hurontario Street. At that point in time, she said that the northbound traffic had subsided and that she had a clear view of the southbound lanes, and that the defendant’s vehicle travelled southbound directly past Cst. Judd’s location, which had been on the northbound side of Hurontario Street on Pine Ridge Lane.

She further clarified that she had been parked on the northside of Pine Ridge Lane, off of Hurontario Street and north of Charolais Boulevard. She also said Pine Ridge Lane is a dead-end street and that she had been parked at the end of the street at Hurontario Street facing westbound. In addition, she said at that point and time she had been observing north and southbound traffic and that had been when she had observed the defendant’s vehicle. [ 51 ] Cst.

Judd also said she had been in her cruiser, which had been stationary and parked, when she had observed the defendant’s vehicle and when the laser had registered the speed of 105 k.p.h. She also said she had been using the laser unit from the vehicle in a handheld position and had pointed the laser at the defendant’s vehicle from her cruiser. In addition, she said she did not look at her dashboard at that time, but only at the laser unit. [ 52 ] In addition, Cst.

Judd said she had also tested a radar device at the same time she had tested the laser unit, but had not used the radar device to register the speed of the defendant’s vehicle. [ 53 ] Also, once Cst. Judd had observed the defendant’s vehicle go past her parked position, Judd said she had moved her cruiser into the southbound passing lane on Hurontario Street to go southbound. [ 54 ] In addition, Cst. Judd said that when she had first observed the defendant travel past, Judd said she then had entered the third lane of three southbound lanes, which had been the passing or fast lane. [ 55 ] Cst.

Judd also said she had been following the defendant’s vehicle down Hurontario Street and had activated her cruiser’s lights north of Steeles Avenue, shortly after she pulled out from the Pine Ridge Lane location. However, she said the defendant did not make any attempt to stop and had continued to travel in and out of lanes, failing to signal, and continuing to travel through traffic up until the defendant had been forced to stop at Sir Lou Drive because of the traffic in front of the defendant’s vehicle that had been stopped for a red light. [ 56 ] Moreover, Cst.

Judd said both officers who had attended at the intersection of Derry Road and Hurontario had been from the Regional Traffic Unit and had already been on the road at the time when they heard Judd’s request for additional units. [ 57 ] In responding to the question of whether a laser can detect another car in front of the defendant’s vehicle that was speeding, Cst Judd said the laser unit is very precise, and that when the operator points the laser unit directly at the front of a vehicle, the band of that laser beam is very small in comparison to a radar unit.

In addition, she said she had pointed the laser at the grill on the front of the

defendant’s vehicle. [ 58 ] Cst. Judd also said she had been able to barricade the defendant in by travelling past the defendant’s vehicle on the passenger side of the defendant’s vehicle onto the pedestrian crossing area and then pulling up onto the pedestrian crossing area that was just ahead of the defendant’s vehicle on Hurontario Street at Derry Road. She then said she reversed her cruiser and stopped at the front of the defendant’s vehicle.

She also said she then exited her cruiser and motioned to the driver of the transport truck behind the defendant’s vehicle to pull up behind the defendant’s vehicle, which then barricaded the defendant’s vehicle in, so that the defendant could not get away from that location like the defendant had done so at the previous traffic stop at Sir Lou Drive. [ 59 ] In addition, Cst. Judd said the traffic light at Derry Road had changed to red and that because of the east and west traffic, the defendant had not been able to travel through Derry Road, and had to stop her vehicle.

Furthermore, Judd said the defendant’s vehicle had been the first vehicle at the stop, which was when Judd had taken the opportunity to block in the defendant’s vehicle.

(2) Merlanie Tapang, the social worker for the defendant [ 60 ] Merlanie Tapang testified she is the social worker for P. R. L., the defendant, and has been working with the defendant for the last month in respect to a “Community Treatment Order”. In addition, Tapang said the defendant had been mandated to meet with Tapang, as ordered by a psychiatrist.

Tapang also said the defendant is being monitored by Tapang to ensure that the defendant takes her medication. [ 61 ] In addition, Tapang said that the defendant’s Community Treatment Order is being supervised and monitored by the Assertive Community Treatment team, which she is part of, and which supervises people with severe mental health illnesses who are permitted to remain living in the community while being treated.

Moreover, she said the defendant had undergone a thorough assessment. [ 62 ] Furthermore , Tapang said that the defendant currently resides in a shelter, has no income, and has lost the custody of her son. In addition, Tapang said she helps the defendant deal with financing and housing, and also helps the defendant stick with her treatment in order to keep the defendant out of hospitals. 4. APPLICABLE LAW [ 63 ] The “ fail to surrender permit” offence is set out in s. 7(5) (

a) of the Highway Traffic Act , R.S.O. 1990, c. H.8, and provides that [ emphasis is mine belo w]: Permit to be carried 7

(5) Subject to subsection (6), every driver of a motor vehicle on a highway shall carry , (

a) the permit for it or a true copy thereof; and (

b) where the motor vehicle is drawing a trailer, the permit for the trailer or a true copy thereof, and shall surrender the permits or copies for inspection upon the demand of a police officer . [ 64 ] In addition, the “speeding offence” is set out in s. 128(1) of the Highway Traffic Act , R.S.O. 1990, c. H.8, and provides that [ emphasis is mine belo w]:

Rate of speed 128(1) No person shall drive a motor vehicle at a rate of speed greater than , … (

f) the maximum rate of speed posted on a highway or portion of a highway pursuant to

section 128.0.1. [ 65 ] Furthermore, the penalty that can be imposed on the defendant if convicted of the “speeding” offence of “105 k.p.h. in a posted 60 k.p.h. zone” is based on the statutory fine set out in s. 128(14) (

c) of the Highway Traffic Act , R.S.O. 1990, c. H.8, of $7 for each kilometre per hour that the motor vehicle was driven over the speed limit. In the defendant’s case, she would be liable to pay a fine of $315, if convicted [ emphasis is mine belo w]: Penalty 128(14) Every person who contravenes this

section or any by-law or regulation made under this

section is guilty of an offence and on conviction is liable, where the rate of speed at which the motor vehicle was driven , (

a) is less than 20 kilometres per hour over the speed limit, to a fine of $3 for each kilometre per hour that the motor vehicle was driven over the speed limit; (

b) is 20 kilometres per hour or more but less than 30 kilometres per hour over the speed limit, to a fine of $4.50 for each kilometre per hour that the motor vehicle was driven over the speed limit; (

c) is 30 kilometres per hour or more but less than 50 kilometres per hour over the speed limit , to a fine of $7 for each kilometre per hour that the motor vehicle was driven over the speed limit ; and (

d) is 50 kilometres per hour or more over the speed limit, to a fine of $9.75 for each kilometre per hour that the motor vehicle was driven over the speed limit. [ 66 ] As for the “fail to signal lane change” offence, it is set out in s. 142(1) of the Highway Traffic Act , R.S.O. 1990, c.

H.8, and provides that [ emphasis is mine belo w]: Signalling turns and stops Signal for left or right turn 142(1) The driver or operator of a vehicle upon a highway before turning to the left or right at any intersection or into a private road or driveway or from one lane for traffic to another lane for traffic or to leave the roadway shall first see that the movement can be made in safety, and if the operation of any other vehicle may be affected by the movement shall give a signal plainly visible to the driver or operator of the other vehicle of the intention to make the movement .

[ 67 ] Moreover, for the offence of “fail to stop for a police officer and willfully continued to avoid police while a police officer gave pursuit” pursuant to s. 216(2) and (3) , the penalty the court could impose upon conviction under s. 216 is a fine, imprisonment, or both a fine and imprisonment. For the range of fine, it would be a minimum fine of $5,000 and a maximum fine of $25,000. For the term of imprisonment that could be imposed, it would be a minimum term of incarceration of 14 days and a maximum term of incarceration of six months.

In addition, the court could suspend the defendant’s driver’s license for five years [ emphasis is mine below ]: Power of police officer to stop vehicle 216(1) A police officer, in the lawful execution of his or her duties and responsibilities, may require the driver of a motor vehicle to stop and the driver of a motor vehicle, when signalled or requested to stop by a police officer who is readily identifiable as such, shall immediately come to a safe stop . Offence

(2) Every person who contravenes subsection (1) is guilty of an offence and on conviction is liable, subject to subsection (3), (

a) to a fine of not less than $1,000 and not more than $10,000 ; (

b) to imprisonment for a term of not more than six months; or (

c) to both a fine and imprisonment . Escape by flight

(3) If a person is convicted of an offence under subsection (2) and the court is satisfied on the evidence that the person wilfully continued to avoid police when a police officer gave pursuit , (

a) the person is liable to a fine of not less than $5,000 and not more than $25,000, instead of the fine described in clause (2) (a) ; (

b) the court shall make an order imprisoning the person for a term of not less than 14 days and not more than six months, instead of the term described in clause (2)(b) ; and (

c) the court shall make an order suspending the person’s driver’s licence , (

i) for a period of five years , unless subclause (ii) applies, or (ii) for a period of not less than 10 years, if the court is satisfied on the evidence that the person’s conduct or the pursuit resulted in the death of or bodily harm to any person. Lifetime suspension

(4) An order under subclause (3)(c)(ii) may suspend the person’s driver’s licence for the remainder of the person’s life.

Suspension in addition

(4.1) Except in the case of a suspension for the remainder of the person’s life, a suspension under clause (3)(

c) is in addition to any other period for which the person’s licence is suspended and is consecutive to that period. Notice of suspension

(4.2) Subject to subsection (4.3), in a proceeding for a contravention of subsection (1) in which it is alleged that the person wilfully continued to avoid police when a police officer gave pursuit, the clerk or registrar of the court, before the court accepts the plea of the defendant, shall orally give a notice to the person to the following effect: “The Highway Traffic Act provides that upon conviction of the offence with which you are charged, in the circumstances indicated therein, your driver’s licence shall be suspended for five years”. Same: death or bodily harm

(4.3) In a proceeding for a contravention of subsection (1) in which it is alleged that the person wilfully continued to avoid police when a police officer gave pursuit and that the person’s conduct or the pursuit resulted in the death of or bodily harm to any person, the clerk or registrar of the court, before the court accepts the plea of the defendant, shall orally give a notice to the person to the following effect: “The Highway Traffic Act provides that upon conviction of the offence with which you are charged, in the circumstances indicated therein, your driver’s licence shall be suspended for not less than 10 years and that it may be suspended for the remainder of your life”. Idem

(5) The suspension of a driver’s licence under this

section shall not be held to be invalid by reason of failure to give the notice provided for in subsection (4.2) or (4.3). Appeal of suspension

(6) An appeal may be taken from an order under clause (3) (

c) or a decision to not make the order in the same manner as from a conviction or an acquittal under subsection (2). Stay of order on appeal

(7) Where an appeal is taken from an order under subsection (6), the court being appealed to may direct that the order being applied from shall be stayed pending the final disposition of the appeal or until otherwise ordered by that court. [ 68 ] Furthermore, since the Highway Traffic Act is silent on what the penalty could be for contravening the two

Part III offences of “fail to surrender permit” and “fail to signal lane change” upon conviction, then these two offences are governed by the general penalty

section contained in s. 214(1) of the Highway Traffic Act , R.S.O. 1990, c. H.8, which establishes a minimum fine of $60 and a maximum fine of $500 that could be imposed on the defendant upon conviction:

General penalty 214(1) Every person who contravenes this Act or any regulation is guilty of an offence and on conviction, where a penalty for the contravention is not otherwise provided for herein, is liable to a fine of not less than $60 and not more than $500. 5. ISSUES [ 69 ] The following are issues that have arisen in this trial that need to be resolved in order to determine if the prosecution has met its burden of proving that the defendant has committed the four offences as charged beyond a reasonable doubt : (

a) For the four charges, what category of offence would each of the charges fall under in the R. v. Sault Ste. Marie classification of offences? (

b) Do the mental disorder or automatism defences apply to regulatory offences, especially when the offence is classified as an absolute liability offence? (

c) If the mental disorder or automatism defences do apply to regulatory offences, then how do these defences affect the voluntariness of the actus reus of the offence that had been committed by an accused person? (

d) If the mental disorder or automatism defences do apply to regulatory offences, does the defendant have the burden to prove these defences on a balance of probabilities? (

e) If the mental disorder or automatism defences do apply to regulatory offences and the defendant has the burden to prove these defences, has the defendant proven these defences on a balance of probabilities? (

f) If the defendant has the burden to prove the mental disorder or automatism defences, then what is required to be presented to the court to prove those defences? (

g) If the prosecution proves the defendant committed the actus reus of the four offences beyond a reasonable doubt, did the defendant’s mental disorder put the defendant in a state of impaired consciousness or to behave as an automaton, which would result in the defendant’s conduct being involuntary? (

h) For the purpose of determining whether the penalty provisions under s. 216(3) apply to the defendant, did the defendant wilfully continue to avoid police when a police officer gave pursuit? 6. ANALYSIS [ 70 ] In this regulatory trial, the defendant was charged with committing four

Part III offences contrary to the Highway Traffic Act in Brampton, Ontario, on March 21, 2011. In her defence to the charges, the defendant submitted evidence that she has a mental disorder and that she may have been inflicted with that mental disorder on the date she had allegedly committed those four traffic offences, and as such, may excuse and explain why she had acted the way she did on that day.

[71] Now, if the defendant were hypothetically facing criminal charges instead of these regulatory charges, then the consequence ofthe defendant’s mental disorder affecting her mental state at the time the offences were committed, such that the defendant would havebeen rendered incapable of appreciating the nature and quality of her act or omission or knowing that it was wrong, could lead to thespecial verdict where the defendant would be found “not criminally responsible by reason of mental disorder”: R. v. Chaulk, (SCC), [1990] 3 S.C.R. 1303 (S.C.C.).

However, a verdict of acquittal would not be available in this hypothetical scenariounless the defendant’s actions were involuntary and the defendant had been acting as an automaton that had not been from a mentaldisorder, but had been from some other cause such as from receiving a blow to the head or from a condition such as sleep-walking: R. v.Parks, (SCC), [1992] 2 S.C.R. 871 (S.C.C.). [72] In addition, when this mental disorder defence is accepted as a valid defence for a criminal offence, then the accused person isgiven that special verdict of “not criminally responsible by reason of mental disorder”, but is not free to go back to their life immediately,but is usually detained at an institution until they are no longer a danger to the public.

This special verdict in the criminal law is codifiedin s. 16(1) of the Criminal Code in which an accused person could be found not to be criminally responsible by reason of a mentaldisorder because they had lacked the capacity to form the requisite mens rea or mental fault in respect to the offence being committed,even though it had been proven that the accused person had committed the actus reus of the criminal offence beyond a reasonable doubt. [73] Furthermore, s. 16(1) of the Criminal Code provides that no person is criminally responsible for

an act committed or an omissionmade while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act oromission or of knowing that it was wrong. In addition, s. 16(2) provides for a rebuttable presumption that every person is presumed notto suffer from a mental disorder so as to be exempt from criminal responsibility until the contrary is proved on the balance ofprobabilities.

However, s. 16(3) specifies that the burden to prove the accused person had been suffering from a mental disorder so as tobe exempt from criminal responsibility is on the party that raises the issue, which means either the prosecution or the defence can raisethe issue that the accused had been suffering from a mental disorder [emphasis is mine below]: Defence of mental disorder 16(1) No person is criminally responsible for

an act committed or an omission made while suffering from a mental disorder thatrendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong. Presumption 16(2) Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility by virtue ofsubsection (1), until the contrary is proved on the balance of probabilities.

Burden of proof 16(3) The burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal responsibility is onthe party that raises the issue. [74] In short, the mental disorder or automatism defences would apply to an accused person who has committed a criminal act whilein a state of impaired consciousness that results in involuntary behavior by the accused person. [75] Moreover, when an accused person raises the mental disorder or automatism defence, that proffered defence must meet the air ofreality test or the evidentiary burden of proof before the defence can be considered by the trier of fact.

Thus, if the accused person raisesone of these defences then the accused person has the evidential burden or onus to meet the air of reality threshold. [76] However, the defendant in the case at bar has not been charged with committing criminal offences, but with regulatory offences,so the special verdict under s. 16(1) of the Criminal Code would not apply to the defendant. Moreover, there is unfortunately noequivalent statutory provision in the Provincial Offences Act, R.S.O. 1990, c. P.33, which provides for that special verdict of “notcriminally responsible by reason of mental disorder”.

As such, a review of academic commentary and the common law on the mentaldisorder and automatism defences will have to be undertaken to determine whether these defences would apply to regulatory offences. If

these defences would apply in the regulatory sphere, then it will have to be determined who has the burden of proof, what is the degree and nature of the proof that is required to satisfy that burden, and what procedure should be followed to consider these defences. (

A) THE DEFENDANT’S MENTAL CAPACITY TO CONDUCT DEFENCE [ 77 ] Since the defendant has provided evidence that she has a mental disorder, the question of her capacity to conduct a defence also arises. That issue is governed by s. 44 of the Provincial Offences Act , R.S.O. 1990, c.

P.33, which provides that if this court, at any time before a defendant is sentenced, has reason to believe that the defendant suffers from mental disorder, such that she would be unable to conduct her defence, which can be based on the conduct of the defendant in the courtroom or from the evidence of a legally qualified medical practitioner, then the issue of whether the defendant is unable to conduct her defence because of her mental disorder would then be referred to a judge for the determination of that issue [ emphasis is mine below ]: Trial of issue as to capacity to conduct defence 44(1) Where at any time before a defendant is sentenced a court has reason to believe, based on , (

a) the evidence of a legally qualified medical practitioner or, with the consent of the parties, a written report of a legally qualified medical practitioner; or (

b) the conduct of the defendant in the courtroom, that the defendant suffers from mental disorder , the court may, (

c) where the justice presiding is a judge, by order suspend the proceeding and direct the trial of the issue as to whether the defendant is, because of mental disorder, unable to conduct his or her defence; or (

d) where the justice presiding is a justice of the peace, refer the matter to a judge who may make an order referred to in clause (c) . Examination

(2) For the purposes of subsection (1), the court may order the defendant to attend to be examined under subsection (5). Finding

(3) The trial of the issue shall be presided over by a judge and, (

a) where the judge finds that the defendant is, because of mental disorder, unable to conduct his or her defence, the judge shall order that the proceeding remain suspended; (

b) where the judge finds that the defendant is able to conduct his or her defence, the judge shall order that the suspended proceeding be continued. Application for rehearing as to capacity

(4) At any time within one year after an order is made under subsection (3), either party may, upon seven days notice to the other, make a motion to a judge to rehear the trial of the issue and where upon the rehearing the judge finds that the defendant is able to conduct his or her defence, the judge may order that the suspended proceeding be continued. Order for examination

(5) For the purposes of subsection (1) or a hearing or rehearing under subsection (3) or (4), the court or judge may order the defendant to attend at such place or before such person and at or within such time as are specified in the order and submit to an examination for the purpose of determining whether the defendant is, because of mental disorder, unable to conduct his or her defence. Idem

(6) Where the defendant fails or refuses to comply with an order under subsection (5) without reasonable excuse or where the person conducting the examination satisfies a judge that it is necessary to do so, the judge may by warrant direct that the defendant be taken into such custody as is necessary for the purpose of the examination and in any event for not longer than seven days and, where it is necessary to detain the defendant in a place, the place shall be, where practicable, a psychiatric facility. Limitation on suspension of proceeding

(7) Where an order is made under subsection (3) and one year has elapsed and no further order is made under subsection (4), no further proceeding shall be taken in respect of the charge or any other charge arising out of the same circumstance. [ 78 ] In regards to the defendant’s fitness to conduct her defence, the mental disorder issue did not arise until the second day of the trial. On the first day of the trial, the defendant had been self-represented and conducted her own cross-examination of Cst. Judd.

It is noteworthy that during the first day of the trial, the defendant had displayed an awareness and sufficient knowledge of the information contained in the disclosure provided to her and a reasonable grasp of the evidence against her and a basic understanding of the factual issues, not unlike most lay people that are self-represented at their traffic offence trials. [ 79 ] Moreover, the defendant’s conduct during the two days of the trial did not demonstrate that she would be unable to conduct her defence because of her mental disorder.

As such, based on her conduct during the trial the defendant’s fitness during the trial was not a question that needed to be determined by a referral to a judge pursuant to s. 44(1) (d). (

B) THE MENTAL DISORDER OR AUTOMATISM DEFENCES [ 80 ] On the other hand, the defendant having the capacity and being able to conduct her defence is not an impediment for her to also raise the mental disorder or automatism defences in respect to the four changes she is facing, considering it is the defendant’s mental state on March 21, 2011, when she had been operating a motor vehicle at approximately 1:25 p.m. in the City of Brampton that is relevant in assessing her conduct and actions. [ 81 ] Furthermore, in considering how the mental disorder or automatism defences operate, a good

summary of these defences is found in the textbook, Criminal Law 5ed. (2012) (Toronto, Canada: Irwin Law Inc., 2012), at pp. 279-280, in which Professor Kent Roach has classified both the mental disorder and automatism defences as an excusing defence, but with different outcomes or verdicts [ emphasis is mine below ]:

Like intoxication, the defences of mental disorder and automatism apply to accused who commit criminal acts, but who cannot be foundcriminally responsible because their mental processes were impaired. It has long been accepted that an offender who, because of amental disorder, is incapable of appreciating the nature and quality of a criminal act, or of knowing that it is wrong, should not beconvicted. The verdict is not a pure acquittal, but rather a verdict of not criminally responsible on account of mental disorder or whatused to be called not guilty by reason of insanity.

The accused does not automatically go free and can be subject to detention or releasewith conditions until he or she is determined no longer to be a significant danger to society. In Canada, the mental disorder defence isset out in

section 16 of the Criminal Code, and has been revised by both the Supreme Court and Parliament to take into account variousCharter concerns. The defence of automatism is more novel, and applies to an accused who has committed a criminal act while in a state of impairedconsciousness that results in involuntary behaviour. If that state is caused by a mental disorder, the accused will be held not criminallyresponsible by reason of mental disorder. If the cause of the automatism is some other factor such as a blow to the head, the presentdisposition is to acquit the accused.

The defence of non-mental disorder automatism is a common law defence that is not codified. If thecause of automatism producing involuntary behaviour is self-induced intoxication by alcohol or drugs, then the provisions of theintoxication defence discussed in

chapter 7 will apply. [82] Moreover, under the criminal law, the prosecution is required to prove both the actus reus and the mens rea of a criminal offencein order to get a conviction. As such, the mental disorder or automatism defence, if accepted as a valid defence in a particular criminaltrial, would nullify the mens rea element of the offence, so that the accused would lack the necessary intention or mental fault incommitting the actus reus of the offence.

Furthermore, when the mental disorder defence in a criminal trial is accepted as a validdefence by the trier of fact then the accused would receive the special verdict of “not criminal responsible by reason of a mentaldisorder.” However, in the criminal law setting once the accused receives the special verdict of “not criminal responsible by reason of amental disorder”, the accused is not legally acquitted of the criminal offence or immediately free to leave, but is usually detained in aninstitution until the accused is determined to be no longer a danger to the public. [83] An acquittal would not be the verdict if the accused person’s actions resulted from a mental disorder.

However, if the actions ofthe accused person were involuntary because of the lack of conscious control or mental awareness of the conduct, then in order for theaccused person to receive a verdict of acquittal for the criminal offence, they would have to use the defence of automatism and prove ona balance of probabilities that the automatism is not the result of a mental disorder, but from some other cause.

In other words, if theaccused’s automatic state is from a mental disorder then the special verdict of “not criminal responsible by reason of a mental disorder”would be the outcome, but if the automatism is not the result of a mental disorder, but from some other cause such as from a severeemotional shock or blow to the head, then the accused would receive a verdict of acquittal and be immediately free to leave and not bedetained. [84] In short, both the mental disorder and automatism defences excuse an accused of committing a criminal offence because of thelack of mens rea.

For the mental disorder defence the focus is on the capacity to form the intent to commit a prohibited act or to make anomission while the automatism defence focuses on the actual intent. In addition, the mental disorder defence is now codified under s.16(1) of the Criminal Code, while the non-mental disorder automatism defence is not codified, but governed by the common law: R. v.Parks, (SCC), [1992] 2 S.C.R. 871 (S.C.C.) and R. v. Stone (1999), (SCC), 134 C.C.C. (3d) 353(S.C.C.). (

C) DO THE MENTAL DISORDER OR AUTOMATISM DEFENCES APPLY TO REGULATORY OFFENCES? [85] However, since the defendant has not been charged with committing criminal offences, but regulatory offences then the issue iswhether the mental disorder or automatism defences necessarily apply to all regulatory offences, especially since regulatory offences arecomprised of all three category of offences established by the Supreme Court of Canada in R. v. Sault Ste.

Marie, (SCC),[1978] 2 S.C.R. 1299, of mens rea, strict liability and absolute liability, and it is not clear whether the mental disorder or automatismdefences would apply to strict liability and absolute liability offences, considering that the prosecution is not legally required to proveany mental element or mens rea in order to get a conviction for strict liability and absolute liability offences. [86] On the other hand, similar to criminal offences, the mental disorder and automatism defences should logically apply to regulatoryoffences that are of the mens rea category, although the special verdict of “not criminally responsible by reason of mental disorder”,which is not a verdict of acquittal and which requires the accused person for a criminal offence to be detained usually in an institutionuntil they are determined to be no longer a danger to the public, would not be an appropriate outcome for the regulatory sphere.

[87] And, despite there being some bemusement about the applicability of the mental disorder and automatism defences to regulatoryor public welfare offences, especially for strict and absolute liability offences, there has been comment and belief in academic writingthat such defences should logically be available in the regulatory sphere for strict and absolute liability offences.

One such commentaryis found in the textbook, Criminal Law 5ed. (2012) (Toronto, Canada: Irwin Law Inc., 2012), at p. 222, in which Professor Kent Roachreasons that defences of automatism, mental disorder, or extreme intoxication could possibly apply to an absolute liability offence,because the nature of these defences would indicate that the accused acted in an involuntary manner that is inconsistent with proof of theactus reus [emphasis is mine below]: A defence of honest or even reasonable mistake of fact will not be a defence to an absolute liability offence.

Thus, an accused’s subjectivereliance on a faulty speedometer would not be a valid defence even if the reliance was reasonable.

The defences of automatism, mentaldisorder, or extreme intoxication might possibly apply to an absolute liability offence, because they would indicate that the accusedacted in an involuntary manner that is inconsistent with proof of the actus reus. … [88] Additionally, in the leading treatise on regulatory offences in Canada, Libman on Regulatory Offences in Canada (Salt SpringIsland, B.C.: Earlscourt Legal Press Inc., 2002), Justice Libman at p. 5-28 (in update 8 – November 2006) had also commented that suchdefences as insanity, automatism, or duress are available even for offences of absolute liability [emphasis is mine below]: The term absolute liability is commonly used to describe offences in which it is not open to an accused to avoid criminal liability on theground that he or she acted under a reasonable mistake of fact which, if the facts had been as the accused believed them to be, wouldhave made his or her act innocent.

Even in offences of absolute liability, however, other defences such as insanity, automatism or duressare available. [89] However, Justice Libman in his textbook at p. 6-11 (in update 8 - November 2006) also commented that strict liability offencesdo involve a necessary mental element or a mental process connected to the actus reus or prohibited act, but that they do not require theprosecution or Crown to prove mens rea [emphasis is mine below]: In R. v.

Cooke, the court rejected the argument that the offence of careless driving could no longer be construed as an offence of strictliability, given the decision of the Supreme Court of Canada in R. v. Hundal. The court held that while Hundal, a dangerous drivingcase, provides clarification in understanding the nature of the mental element for driving offences, Highway Traffic Act offences are notcrimes, and thus should not be categorized as part of those offences requiring proof of mens rea.

Strict liability offences “do involve anecessary mental element or a mental process connected to the actus reus or prohibited act”, but they do not require the Crown to provemens rea. [90] Moreover, in R. v. Daviault (1994), (SCC), 93 C.C.C. (3d) 21 at 25 (S.C.C.), at paras. 7, 8, 9, and 11, Cory J.indicated that the mental aspect involved in willed or voluntary conduct may overlap to some extent in both the concept of mens rea andactus reus.

He also provided an example of why a person could not be found guilty of committing a prohibited act if the person had notbeen consciously aware of committing the act, since the mental element involved in committing a willed voluntary act and the mentalelement of intending to commit the act would be absent.

In addition, he commented that it had been long recognized that a person couldnot be found guilty if suffering from a mental illness that comes within the scope of what is now s. 16 of the Criminal Code, because ofthe inability of a mentally ill accused to form the requisite intention or that the nature and quality of the prohibited act had not beenappreciated by the accused [emphasis is mine below]: For my purposes it is sufficient to say that for a great many years it has been understood that, unless the legislator provides otherwise, acrime must consist of the following elements.

First, a physical element which consists of committing a prohibited act, creating aprohibited state of affairs, or omitting to do that which is required by the law. Second, the conduct in question must be willed; this isusually referred to as voluntariness. Some writers classify this element as part of the actus reus, others prefer to associate it with mensrea; however, all seem to agree that it is required. (See, generally, J. C. Smith and B. Hogan, Criminal Law (7th ed. 1992), at pp. 37 ff.)If persons other than lawyers were asked what constituted willed or voluntary conduct they would respond that such

an act or conductmust involve a mental element. It is the mental element, that is the act of will, which makes the act or conduct willed or voluntary. In R.v. Théroux, (SCC), [1993] 2 S.C.R. 5, at p. 17, McLachlin J. had this to say concerning the actus reus: The term mens rea, properly understood, does not encompass all of the mental elements of a crime. The actus reus has its own mentalelement; the act must be the voluntary act of the accused for the actus reus to exist. Mens rea, on the other hand, refers to the guiltymind, the wrongful intention, of the accused.

Its function in criminal law is to prevent the conviction of the morally innocent -- thosewho do not understand or intend the consequences of their acts. Typically, mens rea is concerned with the consequences of theprohibited actus reus.

Similarly, in R. v. Parks, (SCC), [1992] 2 S.C.R. 871, at p. 896, La Forest J. quoted the following passage from thedissenting reasons of Dickson J. (as he then was) in Rabey v. The Queen, (SCC), [1980] 2 S.C.R. 513, at p. 522: Although the word "automatism" made its way but lately to the legal stage, it is basic principle that absence of volition in respect of theact involved is always a defence to a crime. A defence that the act is involuntary entitles the accused to a complete and unqualifiedacquittal.

That the defence of automatism exists as a middle ground between criminal responsibility and legal insanity is beyondquestion. Although spoken as a defence, in the sense that it is raised by the accused, the Crown always bears the burden of proving avoluntary act. The definition of actus reus is thus established. Yet I should add that, as will be seen later, the mental aspect involved in willed orvoluntary conduct may overlap to some extent in both the concept of mens rea and actus reus.

Finally, then there must be acontemporaneous mental element comprising an intention to carry out the prohibited physical act or omission to act; that is to say aparticular state of mind such as the intent to cause, or some foresight of, the results of the act or the state of affairs. With this concept of a crime established it soon came to be accepted that in certain situations a person who committed a prohibitedphysical act still could not be found guilty. A number of examples come to mind.

For instance, if a person in a state of automatism as aresult of a blow on the head committed a prohibited act that he was not consciously aware of committing, he could not be found guiltysince the mental element involved in committing a willed voluntary act and the mental element of intending to commit the act wereabsent. Thus neither the requisite actus reus or mens rea for the offence was present. The result would be the same in the case of aperson who had an unexpected reaction to medication which rendered him totally unaware of his actions.

Similarly, if an accused,during an epileptic seizure, with no knowledge of what he was doing, shot and killed a victim, he could not be found guilty of murdersince both the ability to act voluntarily and the mental element of the intention to kill were absent. In all these instances the accusedsimply could not have formed the requisite intention to commit the prohibited act. Further, it was long ago recognized that a personsuffering from a mental illness coming within the scope of what is now s. 16 of the Criminal Code could not be found guilty.

That resultmay have arisen either from the recognition of the inability of a mentally ill accused to form the requisite intention, or from therealization that the nature and quality of the prohibited act was not appreciated by the accused. … It can thus be seen that with the development of principles recognizing constituent elements of crimes, particularly the need for a mentalelement, there came the realization that persons who lack the requisite mental element for a crime should not be found guilty ofcommitting that crime.

For centuries it has been recognized that both the physical and the mental elements are an integral part of acriminal act. It has long been a fundamental concept of our criminal law. (

D) HOW DOES THE MENTAL DISORDER OR AUTOMATISM DEFENCES AFFECT THE VOLUNTARINESS OF THEACTUS REUS BEING COMMITTED? [91] In Bratty v. Attorney-General for Northern Ireland, [1963] A.C. 386 (H.L.), at p. 409, Lord Denning in considering the defenceof automatism had noted that an involuntary act by a person, such as

an act which is done by the muscles without any control by themind or

an act done by a person who is not conscious of what he is doing, should not be punished for such act: No act is punishable if it is done involuntarily: and an involuntary act in this context -- some people nowadays prefer to speak of it as"automatism" -- means

an act which is done by the muscles without any control by the mind, such as a spasm, a reflex action or aconvulsion; or

an act done by a person who is not conscious of what he is doing, such as

an act done whilst suffering from concussion orwhilst sleep-walking. [92] Furthermore, in R. v. Daviault (1994), (SCC), 93 C.C.C. (3d) 21 (S.C.C.), at para. 66, Cory J. noted that theactus reus requires that the prohibited criminal act be performed voluntarily as a willed act, and that a person in a state of automatismcannot perform a voluntary willed act, since the automatism has deprived the person of the ability to carry out such

an act [emphasis ismine below]: Should it be thought that the mental element involved relates to the actus reus rather than the mens rea then the result must be the same.The actus reus requires that the prohibited criminal act be performed voluntarily as a willed act. A person in a state of automatism

cannot perform a voluntary willed act since the automatism has deprived the person of the ability to carry out such

an act. It follows thatsomeone in an extreme state of intoxication akin to automatism must also be deprived of that ability. Thus a fundamental aspect of theactus reus of the criminal act is absent. It would equally infringe s. 7 of the Charter if an accused who was not acting voluntarily couldbe convicted of a criminal offence. Here again the voluntary act of becoming intoxicated cannot be substituted for the voluntary actioninvolved in sexual assault. To do so would violate the principle set out in Vaillancourt, supra.

Once again to convict in the face of such afundamental denial of natural justice could not be justified under s. 1 of the Charter. [93] Therefore, in the situation where the actus reus of offence has not been voluntarily committed or willed, but is an involuntary actin which the mental element involved in committing a willed voluntary act is absent and that the nature and quality of the prohibited acthad not been appreciated by the accused because of a mental disorder, then the defendant should not be found to be responsible forcommitting the regulatory offence by reason of a mental disorder, and an acquittal should be the result. (

E) DOES THE DEFENDANT HAVE THE BURDEN TO PROVE THE MENTAL DISORDER OR AUTOMATISMDEFENCES APPLY TO HER ACTIONS? [94] In the textbook, Criminal Law 5ed. (2012) (Toronto, Canada: Irwin Law Inc., 2012), at p. 9, Professor Roach has noted that a fewdefences, such as, mental disorder and automatism must be established by the accused on a balance of probabilities, even though thisviolates the presumption of innocence by allowing a conviction even if there is a reasonable doubt about the existence of a defence[emphasis is mine below]: The Crown must, subject to exceptions justified under

section 1 of the Charter, also prove beyond a reasonable doubt that the accuseddid not have a relevant defence. An accused will, for example, be acquitted of murder if there is a reasonable doubt that he or she actedin self-defence as defined by the Criminal Code, or if there is a reasonable doubt that intoxication prevented him or her from knowingthat the victim was likely to die.

A few defences, most notably mental disorder and automatism, must be established by the accused on abalance of probabilities even though this violates the presumption of innocence by allowing a conviction even if there is a reasonabledoubt about the existence of a defence.

If the Crown proves the prohibited act and fault element beyond a reasonable doubt, and there isno defence, then the accused will be convicted. [95] Moreover, Professor Roach, at p. 19 of his textbook, reiterated that the accused now has the burden of establishing both themental disorder and non-insane automatism defences on a balance of probabilities [emphasis is mine below]: Defences related to mental disorders are also influenced by concerns about the appropriate disposition of the accused.

The insanity ormental disorder defence applies to those who, because of a mental disorder, cannot appreciate the physical consequences of theprohibited act they commit or know that it is legally or morally wrong. Such a person, although not convicted, would be detained andexamined to determine if further detention was required to protect the public from a significant threat of danger. Automatism refers toinvoluntary behaviour that may prevent the Crown from proving the fault element or even the prohibited act of a crime. An accusedfound to be in such a state will not be convicted.

If the automatism is caused by a mental disorder, however, the accused can be subject todetention as a person held not criminally responsible by reason of mental disorder. If the automatism is caused by a factor that is not amental disorder, such as a blow on the head, the accused is simply acquitted. The accused now has the burden of establishing both themental disorder and non-insane automatism defences on a balance of probabilities. [96] Furthermore, at p. 284 of his textbook, Professor Roach referred to the Supreme Court of Canada’s decision in R. v.

Chaulk, (SCC), [1990] 3 S.C.R. 1303, in which that court had upheld the statutory requirement of an accused person having toprove the mental disorder defence on a balance of probabilities, as being justified under

section 1 of the Charter because of thedifficulties that the Crown would have in proving that an accused was sane beyond a reasonable doubt [emphasis is mine below]: In R. v. Chaulk, the Supreme Court found that the requirement that an accused prove the defence of insanity on a balance ofprobabilities violated the presumption of innocence under

section 11(

d) of the Charter, because it allowed the conviction of an accusedin spite of a reasonable doubt as to a factor essential to guilt, namely sanity. Lamer C.J. reasoned:

Whether the claim of insani

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