R. v. Henry, 2012 ONCJ 767

COURT FILE: Toronto Region DATE: 2012 / 12/ 13 Citation: R. v. Henry , 2012 ONCJ 767 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — DEVON HENRY Before Justice P. Harris J. Heard on November 26, 27, 29, 2012 Reasons for Judgment released on December 13, 2012 Peter Scrutton ...................................................................................................... for the Crown David Butt ............................................................................... for the defendant Devon Henry P. Harris J.: Introduction [ 1 ] Devon Henry is charged that on April 24, 2011, he committed an assault on Keith Ryan contrary to

section 266 of the Criminal Code . At the outset, Mr. Henry entered a plea of not guilty and the trial proceeded on the basis of prosecution evidence tendered in an “Agreed Statement of Facts” consisting of a recitation of events that occurred on the night of April 23 rd , 2011 (and early morning hours of April 24 th , 2012). The pertinent facts are as follows: Just after midnight on April 24 th , 2011, on Ossington Avenue in Toronto, Parking Enforcement Officer Devon Henry was working in uniform when he was forcibly struck and knocked to the ground hitting his head “face first”. Immediately after the attack, Mr.

Henry was observed on the ground on his knees and could not stand. An officer arrived on scene and asked “what happened?” and asked for a description of his assailant and received “no response”. Police officers on scene found Mr. Henry “very confused and disoriented, bleeding over his right eyebrow, with scrapes and cuts to his forehead and cheek and a tender area under his chin.” In order to obtain a statement, he was taken to 14 Division and asked to sit in a lunchroom or “guardroom” on the second floor of the station. The person who had allegedly attacked Mr. Henry was arrested and charged with assaulting Mr.

Henry and taken to 14 Division for processing, as well. This was an individual by the name of Keith Ryan. Meanwhile, Sgt. David Correa interviewed Mr. Henry in the lunchroom at the Division and reported that Mr. Henry did not want to go to the hospital; he said: “my ego is more hurt than ─ than ─ than my body sort of thing.” Parking Enforcement Supervisor Scott Greenaway , Mr.

Henry’s direct supervisor, saw him in the lunchroom at the Division and described him as being: “just foggy, He was just, kind of, out of it…..He was unresponsive really, to questions, where you’d ask him a question and instead of getting a direct answer, he would kind of, well, and then kind of snap back and be able to say something.” Parking Enforcement Supervisor Antonio Molinaro stated he began talking to Mr. Henry in the lunchroom. “He looked tired and a bit sad, depressed.” “I said, you know, what happened?

And he just said that…he was writing a ticket, somebody knocked the handheld [ticket printer] out of his hands and ─ and he got punched.”

Sometime after he had spoken to these witnesses, and approximately one hour after the assault on Ossington Avenue, Mr. Henry left thelunchroom and “stormed into” a search room off the booking area on the first floor of the station, where Mr. Ryan was being searched,pushed past an officer and said to Mr. Ryan “remember me?” and struck Mr. Ryan forcibly in the face and ribs and left the room andreturned to the lunchroom. Mr. Henry was then taken to the hospital with his supervisors. (See Agreed Statement of Facts – Exhibit1).

Defence Evidence [2] Devon Henry testified that he had been a parking enforcement officer for 9.5 years. He testified that shortly aftermidnight while issuing tickets “a guy ran into me, knocked my arm and the ticket printing machine went flying”. He said he ran after theman and as he “got close, he decked me”. He found himself on the ground, he “couldn’t get up”, his head was “cloudy” and he was“struggling to gain my senses”. He gave evidence his head was spinning and he was having a hard time focusing. He next recalls beingon the second floor at 14 Division, “we were kinda sitting around”.

He had no specific recollection saying “remember me?” or ofassaulting Mr. Ryan. He testified he was walking around, trying to “clear my head”. He stated he entered a room, “heard somebodyshouting and screaming so I walked back out”. He next recalls being at the hospital for a few hours while the doctor did some tests. Hetestified that he had no memory of telling Dr. Peter Carlen, the Neurologist who was consulted in this case, that two constables broughthim into the room where the suspect was being held, or that he partially recognized him and hit him (the suspect Keith Ryan) a fewtimes in the stomach.

Devon Henry stated that he had been in 14 Division before and that he was allowed in some areas, “the lunchroom, the washrooms”. He did not know if he could get to other areas of the station: “I don’t know. I never had any reason to go there”. [3] Dr. Peter Carlen was qualified as an expert witness in the medical science of Neurology with particular expertise in theoccurrence, diagnosis and cerebral dysfunction that flows from concussion. In his report (Exhibit 2), Dr.

Carlen concludes that on thebasis of the evidence “it is clear that the patient had suffered a concussion, which left him significantly confused, with a very foggymemory of the events. Hence, I have no doubt that Mr. Henry was in a state of impaired consciousness even though he was capable ofaction. However whether he had no voluntary control over that action is hard to be absolutely sure of. What I am sure of is that his abilityto make logical or rational decisions would certainly have been impaired”. Dr. Carlen testified that he could not be certain Mr. Henryassaulted Mr.

Ryan voluntarily or involuntarily ─ but that he was certain it was not a wise or rational thing to do and not what he waslikely to do any other time”. Dr. Carlen advised that he had been told by Mr. Henry that two constables brought him into the room wherethe suspect was being held, that he partially recognized him and hit him a few times in the stomach. Despite Mr. Henry’s lack ofmemory on the subject, I am satisfied that Dr. Carlen is the more reliable historian on the question of whether these comments weremade by Mr. Henry. Under cross-examination, Dr.

Carlen agreed that Devon Henry was in control of his movements to the extent hepunched Mr. Ryan, and that the “remember me” comment was an indication of an operating mind “up to a certain level.” In conclusion,Dr. Carlen’s opinion was that ─ based on his concussion and the observations of him that followed ─ Devon Henry was in an impairedcognitive state and not fully mentally competent. Positions of Counsel [4] In this case there is no question Mr. Henry sustained a concussion as a result of a blow to the head caused by his “face-first” fall to the pavement and about one hour later committed an assault.

The defence takes the position his actions were the result of“impaired consciousness” resulting from the blow to the head ─ and advances the defence of non-insane automatism. Consequently, theissue to be determined is whether he was in a state of automatism at the time of the assault on Keith Ryan at 14 Division.

If his actionswere not deliberate, purposeful, or the exercise of his conscious will, no criminal act has taken place and the Defendant is entitled to anacquittal on the basis of this common law defence. [5] The Crown maintains that the defendant has not demonstrated on a balance of probabilities that he was in a state ofautomatism on the night in question while committing the assault. In the alternative, the Crown submits that notwithstanding thisassertion of the defendant, the Crown has, on all the evidence, proven voluntariness beyond a reasonable doubt.

Applicable Legal Principles [6] One of the leading cases in this field is R. v. Stone, (SCC), [1999] 2 S.C.R. 290 in which Basterache J. forthe majority, defines the elusive concept we refer to as automatism: A. The Nature of Automatism

155 The legal term “automatism” has been defined on many occasions by many courts. In Rabey, supra, Ritchie J., speaking for themajority of this Court, at p. 518, adopted the following definition of the Ontario High Court of Justice in R. v. K. (1970), (ON SC), 3 C.C.C. (2d) 84, at p. 84: Automatism is a term used to describe unconscious involuntary behaviour, the state of a person who, though capable of action, is notconscious of what he is doing. It means an unconscious, involuntary act, where the mind does not go with what is being done. 156 The reference to unconsciousness in the definition of automatism has been the source of some criticism. In her

article “Automatismand Criminal Responsibility” (1982-83), 25 Crim. L.Q. 95, W. H. Holland points out that this reference to unconsciousness reveals thatthe law assumes that a person is necessarily either conscious or unconscious. However, the medical literature speaks of different levelsof consciousness (p. 96). Indeed, the expert evidence in the present case reveals that medically speaking, “unconscious” means “flat onthe floor”, that is, in a comatose-type state.

I therefore prefer to define automatism as a state of impaired consciousness, rather thanunconsciousness, in which an individual, though capable of action, has no voluntary control over that action. (Emphasis added). [7] This decision sets the test to be met for automatism as one in which the evidence establishes that the individual had “novoluntary control.” Stone also describes the procedure that should be adopted as well as the factors to be considered in the assertion of adefence of automatism: 171 The law presumes that people act voluntarily.

Accordingly, since a defence of automatism amounts to a claim that one’s actionswere not voluntary, the accused must rebut the presumption of voluntariness.

An evidentiary burden is thereby imposed on the accused. ………. 179 The foregoing leads me to the conclusion that the legal burden in cases involving claims of automatism must be on the defence toprove involuntariness on a balance of probabilities to the trier of fact. [8] Consequently, the first step is that the defence must establish a proper evidentiary foundation for a defence ofautomatism ─ the “defence must make an assertion of involuntariness and call expert psychiatric or psychological evidence confirmingthat assertion”.

The positing of these two requirements in and of themselves is not sufficient to discharge the burden of the defence. “This burden will generally require more than an assertion of involuntariness on the part of the accused accompanied by confirmingexpert evidence that automatism is plausible assuming the account of events given to the expert by the accused was accurate andtruthful.

In the second step, the trier of fact, in evaluating that evidence, must make a determination as to whether there is sufficientevidence upon which a properly instructed jury could find on a balance of probabilities that the accused acted involuntarily.” Anenquiry as to the foundation and nature of the expert opinion as well as other available evidence is required.

The Court offered someguidance on what additional evidence is relevant to the determination of whether the defence has raised evidence which would permit aproperly instructed jury to find that the accused acted involuntarily on a balance of probabilities. : 190 Corroborating evidence of a bystander which reveals that the accused appeared uncharacteristically glassy-eyed, unresponsive andor distant immediately before, during or after the alleged involuntary act will also be relevant to the assessment of whether the defencehas raised evidence on which a properly instructed jury could find that the accused acted involuntarily on a balance of probabilities….. 191 Another factor which trial judges should consider in assessing whether the defence has raised evidence which would permit aproperly instructed jury to find that the accused acted involuntarily on a balance of probabilities is motive.

A motiveless act willgenerally lend plausibility to an accused’s claim of involuntariness…..Dr. Murphy also noted that if a single person is both the trigger ofthe alleged automatism and the victim of the automatistic violence, the claim of involuntariness should be considered suspect. I agreethat the plausibility of a claim of automatism will be reduced if the accused had a motive to commit the crime in question or if the“trigger” of the alleged automatism is also the victim.

On the other hand, if the involuntary act is random and lacks motive, theplausibility of the claim of automatism will be increased; 192 To sum up, in order to satisfy the evidentiary or proper foundation burden in cases involving claims of automatism, the defence mustmake an assertion of involuntariness and call expert psychiatric or psychological evidence confirming that assertion. However, it is anerror of law to conclude that this defence burden has been satisfied simply because the defence has met these two requirements.

Theburden will only be met where the trial judge concludes that there is evidence upon which a properly instructed jury could find that theaccused acted involuntarily on a balance of probabilities. In reaching this conclusion, the trial judge will first examine the psychiatric orpsychological evidence and inquire into the foundation and nature of the expert opinion. The trial judge will also examine all otheravailable evidence, if any.

Relevant factors are not a closed category and may, by way of example, include: the severity of thetriggering stimulus, corroborating evidence of bystanders, corroborating medical history of automatistic-like dissociative states, whetherthere is evidence of a motive for the crime, and whether the alleged trigger of the automatism is also the victim of the automatisticviolence. I point out that no single factor is meant to be determinative.

[9] Finally, the leading international authority on the subject of non-insane automatism is Bratty v AG for Northern Ireland(1963) All E.R. 523 (House of Lords), a case in which Lord Denning stated that automatism exists when the defendant is unable tocontrol his muscles because they acted without the control of his mind. In these circumstances he will not be held blameworthy: …'automatism' - means

an act which is done by the muscles without any control by the mind such as a person who is not conscious ofwhat he is doing such as

an act done whilst suffering from concussion or whilst sleepwalking. ... . [However] to prevent confusion it is tobe observed that in the criminal law

an act is not to be regarded as an involuntary act simply because the doer does not remember it...Nor is

an act to be regarded as an involuntary act simply because the doer could not control his impulse to do it. Analysis [9] While the ultimate burden rests with the Crown of proving every element of the offence beyond a reasonable doubt, I haveconcluded that the defendant has not established a proper evidentiary foundation for a defence of automatism in accordance with theSupreme Court’s decision in Stone, the leading authority in Canada on the subject. The “defence must make an assertion ofinvoluntariness and call expert psychiatric or psychological evidence confirming that assertion”. Dr.

Carlen’s evidence at its highest wasequivocal on the subject of involuntariness: “whether he had no voluntary control over that action is hard to be absolutely sure of.” Theproblem here is that lack of volition is the rationale for the defence, thus eliminating the possibility of relying on the defence ofautomatism in cases where cognition was impaired but the conduct was voluntary.

The only conclusion available therefore is that themedical evidence in this case did not go far enough to establish the necessary evidentiary basis on a balance of probabilities to support anacquittal on a finding of automatism. [10] Additionally, if the above conclusion is incorrect, I will weigh the evidence and make appropriate findings of credibilityutilizing the formula in R. v. W.(D.) (SCC), [1991] 1 S.C.R. 742, the leading decision of the Supreme Court of Canadaon assessing guilt based on the credibility of witnesses in a criminal trial.

I have made the appropriate adjustments to the formula toaccount for the evidentiary burden on the defendant with regard to the defence of automatism. In my view, the defendant has not satisfiedthe evidentiary burden of proving on a balance of probabilities that the assault on Keith Ryan was not a voluntary act, for the followingreasons (based on “relevant factors” enumerated in Stone, above):

(1) The lack of severity of the triggering stimulus: Dr. Carlen agreed that the blow to Mr. Henry’s head sustained in the face-first fall tothe pavement resulted in a mild concussion but no loss of consciousness. While the symptoms of his concussion were said to be;headaches, memory loss, slowed reactions, dazed, and feeling “he was in a fog”, Dr. Carlen agreed that Devon Henry was in control ofhis movements when he punched Keith Ryan and that he had an operating mind to the extent he could carry on a normal conversationwith others before and after the assault.

In spite of the concussion and the diagnosis of impaired consciousness, there were sufficientinstances of normal functioning and interaction to eliminate any inferences of robotic or automaton-like behavior at the time of theassault;

(2) The lack of corroborating evidence of bystanders: Sgt. Correa described Mr. Henry at the 14 Division lunchroom as “moreembarrassed”; “he kept referring to…my ego is more hurt than… my body.” Parking Supervisor Greenaway describes Mr. Henry at thatsame location as seeming foggy, unresponsive, “you’d ask him a direct question and instead of getting a direct answer… he… kind ofsnap back and be able to say something.” Parking Supervisor Molinaro stated that Mr.

Henry looked the same all the time he wasobserved in the lunchroom: he just looked like he was just very tired, very lethargic” None of these observations, taken together, wouldbe sufficient to raise an inference of robotic or automaton-like behavior at the time of the assault.

(3) Evidence of a motive for the crime: According to Stone, supra, the plausibility of a claim of automatism will be reduced if theaccused had a motive to commit the crime in question or if the “trigger” of the alleged automatism is also the victim. On the other hand,if the involuntary act is random and lacks motive, the plausibility of the claim of automatism will be increased; in the instant case, the“trigger of alleged automatism is also the victim” rather than some random uninvolved individual. While one must be cautious indrawing inferences of motive, even Dr.

Carlen agreed that the motive for the assault could have been revenge, particularly in view of hissaying “Hey, remember me?” and punching Ryan in the face and ribs and disappearing. The point being made is that a claim ofautomatism would be more plausible if the offence committed was random and senseless.

(4) The defendant's acts seemed very goal-oriented: While automatistic situations involving hypnotism, concussion, and sleepwalkingmay often involve apparently deliberate and purposeful conduct, it is evident that the defendant’s actions in this case required theexercise of an elaborate spectrum of executive decision-making functions.

Over the course of about one hour after the concussion, Mr.Henry walked with and communicated with officers and supervisors without serious difficulty aside from “fogginess” and “fatigue”,spoke at some length about what happened and what injuries he sustained, went to the washroom and asked when they were taking himto the hospital. I do not accept Mr. Henry’s evidence that he was walking around the station trying to clear his head and just happened to openthe door to the room (on the first floor) where Mr. Ryan was being searched. He was initially taken to the second floor “guard room” orlunch room by Sgt.

Correa and was told to stay there. He told Dr. Carlen that he was taken to the (search) room by two constables(where Ryan was being held), he said he hit him (Ryan) a few times in the stomach and he partially recognized the suspect. His “AgreedStatement of Facts” states that he stormed into the room, pushed past a constable and after saying “Hey, remember me?” punched Mr.Ryan in the face and ribs and disappeared. I will admit his statement to Dr. Carlen as an admission against interest and accept it as themore accurate version of what happened at the search room. There is no chance Dr.

Carlen would have invented a version of events thatportrays Mr. Henry as deliberately assaulting Mr. Ryan at the invitation of two officers. All of these actions collectively create a picture of an individual who is in possession of his faculties and capable of engaging infairly complex decision-making. The fact that at times he was exercising poor judgment, or that he was not able to remember all of hisactions or that he was not able control his impulse to assault Ryan ─ are not reasons to regard his actions as involuntary acts as long as hewas conscious of what he was doing at the time he was doing it.

In my view, a reasonable inference can be drawn from all the evidence

that the assault was the culmination of a series of conscious decisions. First, a suggestion was made to Mr. Henry; (1) he then made adecision to join the constables, and on arriving at the search room, (2) he decided to do what was expected: ― he recognized Ryan, hestormed into the search room, and (3) said “Hey, remember me?”… and..(4) struck a few blows and left. In terms of the classical indicia of automatism, what is lacking here is ― a triggering event followed soon after by some elementof externally-directed propulsion based on force of habit, basic human instinct or a mindless, uncontrollable, compulsion.

The evidencein this case leads irresistibly to the conclusion that the assault took place because of the combined effect of the officers escorting him tothe search room and Mr. Henry’s willingness to strike Mr. Ryan a few times, not because Mr. Henry was in some type of non-volitionalstate, aimlessly wandering about the police station. [11] Mr.

Butt, counsel for the defendant, has made the intriguing submission ─ that I consider “cognitive impairment” as asufficient level of incapacity to meet the evidentiary burden for automatism (as distinct from a total deprivation of these capacities) fortwo reasons: (1) medical science is not so sufficiently advanced as to be capable of determining what a voluntary action is and is not, and(2) to fulfill the promise of a common law defence…. that for all practical purposes is illusory.

While one always welcomes a challenge,it must be recognized that as a member of a provincial court, I am bound by the principle of “stare decisis” to follow the law asdetermined by binding appellate authority ─ which is that ─ it is fundamental to a defence of automatism that the actor has engaged inunconscious, involuntary behavior and has no control over his actions: R. v. Rabey (SCC), [1980] 2 S.C.R. 513 (S.C.C.);R. v. Stone, supra. [12] The concern about the practical obstacles to raising this defence is shared by many others.

It is noteworthy that theCanadian Psychiatric Association finds fault with the judicially-defined concept of non-insane automatism: The next point we would like to make is that automatism, the concept itself, assumes a dichotomy of the mind and body. When it is saidthe accused functions as an automaton, it is meant that the body is acting independently and separately from the mind. Such anassumption is erroneous.

The behaviour and the function of the body is always governed by the mind, whether it is normal ordisordered.[1] [12] Professor Patrick Healey is also highly critical of the insurmountable challenges facing an accused in attempting to benefitfrom the defence of automatism following Stone, describing the majority judgment as narrowing “sane automatism to picayuneindeterminacy”: According to the majority, evidence of involuntariness that apparently arises from some form of automatism raises a presumption ofmental disorder against the accused.

To displace that presumption and benefit from a defence of non-insane automatism, the accusedmust, first, satisfy an unusually weighty evidential burden before the trial judge and, second, meet a legal burden by persuading the juryon the balance of probabilities. Also unusually, the majority requires that the trial judge instruct the jury as to factors to consider inweighing the evidence. The initial presumption that automatism results from mental disorder is far removed from medical understandingof the subject.

The majority states that a defence of non-insane automatism would be good only if the average person would have reactedto the external events in the same way. The chance of demonstrating this is, by definition, almost nil and so effectively eliminates theapplicability of the defence. The reverse legal burden on the accused created in Stone violates the presumption of innocence as protectedin the Canadian Charter of Rights and Freedoms. The majority then justifies its own Charter violation under

section 1.[2] Conclusion [13] One can readily understand the challenges that defendants have to meet in asserting this defence. Nevertheless,considering the legal requirements found in the above-noted case authorities, and having weighed all of the available evidence, I haveconcluded that it has not been proven on a balance of probabilities that Devon Henry acted involuntarily in assaulting Keith Ryan andfurther, that notwithstanding the defence of automatism raised by the defendant, the Crown has, on all the evidence, provenvoluntariness beyond a reasonable doubt and Mr.

Henry will be found guilty of assaulting Keith Ryan. [14] Finally, I would like to take this opportunity to express my appreciation to both counsel for their collaboration instreamlining the presentation of evidence in this case and for their thoughtful presentation and submissions. P. Harris J. December 13th, 2012.