R v Fontaine, 2017 SKCA 72

Court of Appeal for Saskatchewan Docket: CACR2700 Citation: R v Fontaine, 2017 SKCA 72Date: 2017-09-05 Between:Her Majesty the QueenAppellantAndDonovan Ryan FontaineRespondentBefore: Richards C.J.S., Caldwell and Whitmore JJ.A. Disposition: Appeal dismissedWritten reasons by: The Honourable Chief Justice RichardsIn concurrence: The Honourable Mr. Justice Caldwell The Honourable Mr. Justice WhitmoreOn Appeal From: CRM 9/15, BattlefordAppeal Heard: February 6, 2017Counsel: Beverly Klatt for the Appellant Jeffery Deagle for the Respondent Richards C.J.S. I. Introduction [1] Mr.

Fontaine struck his common-law partner immediately after she had violently awoken him from sleep. He was chargedwith assault causing bodily harm. [2] The trial judge characterized the blow in question as bearing the hallmarks of a reflexive action and acquitted Mr. Fontaine.The Crown appeals the acquittal on the basis that, as per R v Stone, (SCC), [1999] 2 SCR 290, Mr. Fontaine bore theburden of proving he had struck his partner involuntarily and was required in that regard to have called expert psychiatric evidence. [3] As explained below, this appeal must be dismissed.

R v Stone does not apply to situations where an action is said to havebeen involuntary because it was reflexive in nature. II. background [4] Mr. Fontaine cohabited with Allison Lemaigre. They had two young children. [5] Ms. Lemaigre testified that she and Mr. Fontaine had made plans to go out together on the evening of June 21, 2014. Mr.Fontaine left home early, without her, and failed to return. As a result, Ms. Lemaigre arranged for her 16-year-old niece to look after thechildren and went drinking. [6] Ms. Lemaigre later received a text message from the niece indicating that Mr.

Fontaine had returned home and kicked in adoor. Ms. Lemaigre returned home with her cousins, Geordon Lemaigre and Jiles Piche. She acknowledged being intoxicated at a levelof eight on a scale of one to ten. She found Mr. Fontaine asleep in their bed. [7] Ms. Lemaigre was angry that Mr. Fontaine had kicked in the door. She testified that she struck him on the foot with her hand,pulled his leg and asked him to leave. She said Mr. Fontaine then got up off the bed “quite quickly”, hit her in the face with his hand andthrew her on the bed. Ms.

Lemaigre also recounted that her cousins, Geordon and Jiles, entered the bedroom and subdued Mr. Fontaine.She then struck him in the face several times with a closed fist. [8] Ms. Lemaigre’s cousin, Geordon, testified that he had entered the bedroom shortly thereafter on being summoned by theniece. He saw Mr. Fontaine and Ms. Lemaigre “in each other’s face”. He pushed Mr. Fontaine so that the two men fell to the floor.Geordon and the other cousin, Jiles, then both subdued Mr. Fontaine. [9] The RCMP were contacted by telephone. Constable Crook testified that they found Mr. Fontaine being held down by twomales.

Corporal Knock gave evidence that Ms. Lemaigre had a bloody nose, a cut on her cheek and black swollen eyes. She was cryingand upset. Mr. Fontaine had a bloodied mouth and swollen lips. [10] Mr. Fontaine did not testify at trial and no defence evidence was presented. III. the trial decision [11] During argument at the conclusion of the trial, the prosecutor submitted that Ms. Lemaigre had been a credible witness. Hesaid it could be inferred that she had not consented to the force applied to her by Mr. Fontaine and that it was inconceivable Mr. Fontainecould have injured her unintentionally.

[12] The defence submission emphasized that Ms. Lemaigre had initiated the confrontation and that, according to her owntestimony, she had been struck only once. Counsel asked the trial judge to find Mr. Fontaine not guilty on the basis that the fight hadbeen consensual. [13] After the submissions from defence counsel, the trial judge raised the issue of intent, saying, “What do I look to for the intentto assault?” In reply, defence counsel stated that Mr. Fontaine must have intended to apply force to Ms.

Lemaigre in order for him to beconvicted and said little more than that, if the judge had a reasonable doubt about whether the necessary intent had been proven, sheshould acquit. The prosecutor emphasized the significance of Ms. Lemaigre’s injuries and stressed that they could not have been inflictedaccidentally. [14] The trial judge delivered her decision some seven weeks later. After reviewing the evidence, she began her analysis byobserving that the Crown must prove “every element of the crime charged” and that one such element was “the state of mind of theaccused in the sense that the act was voluntary”.

The trial judge went on to refer to several cases dealing with situations where anaccused had been charged after striking a victim by way of a reflex action. [15] The trial judge then acquitted Mr. Fontaine by stating as follows: The complainant was a credible witness and I accept her version of events as related by her. The defendant was asleep in his bed when hewas abruptly assaulted by the complainant, she slapped his feet and wrenched on his leg. By her own admission the complainant wasvery angry with the defendant; one can infer it was a rude awakening.

She testified that he immediately struck back with his hand. On theevidence that can be inferred, it was an automatic and unthinking response to being startled from sleep in an aggressive fashion. There is no evidence that the defendant came to a state of alertness or consciousness, no words were spoken between them, the exchangehappened in mere moments. As the foregoing cases exemplify, the defendant’s conduct has all the hallmarks of a reflexive action to asudden and rather startling stimulus while in a state of sleep.

This is rooted in the complainant’s own evidence, which confirms that hewas sleeping on their bed when she entered the room in the middle of the night, in an angry mood and proceeded to hit him and pull hisleg. His response was immediate, no words were exchanged between them. The force of the complainant’s anger is evident from hertestimony that she continued to kick and punch the defendant while he was being held down by her cousins. Plausible evidence regarding the defendant’s actions raises a doubt in my mind based on reason and common sense as to the presence ofthe necessary intent.

The Crown has failed to establish the requisite intent that is an essential ingredient of the offence charged.Accordingly, with respect to count 1, I find the defendant not guilty. IV. analysis [16] The Crown appeals from Mr. Fontaine’s acquittal. As a result, and pursuant to s. 676(1)(

a) of the Criminal Code, its right ofappeal is limited to grounds that involve “a question of law alone”. [17] An appeal under s. 676(1)(

a) cannot succeed on an abstract or hypothetical possibility that, but for the error of law, theaccused would have been convicted. Rather, as the Supreme Court said in R v Graveline, 2006 SCC 16 at para 14, [2006] 1 SCR 609,“[i]t is the duty of the Crown in order to obtain a new trial to satisfy the appellate court that the error (or errors) of the trial judge mightreasonably be thought, in the concrete reality of the case at hand, to have had a material bearing on the acquittal.” This does not mean,however, that the Crown must establish that the verdict would necessarily have been different.

The applicable burden on the Crown wasdescribed by the Chief Justice in R v Sutton, 2000 SCC 50 at para 2, [2000] 2 SCR 595: The parties agree that acquittals are not lightly overturned. The test as set out in Vézeau v. The Queen, (SCC), [1977] 2S.C.R. 277, requires the Crown to satisfy the court that the verdict would not necessarily have been the same had the errors not occurred.In R. v.

Morin, (SCC), [1988] 2 S.C.R. 345, this Court emphasized that “the onus is a heavy one and that the Crown mustsatisfy the court with a reasonable degree of certainty” (p. 374). [18] The Crown characterizes the trial judge’s decision as having been based on the defence of automatism.

Then, relying on theSupreme Court’s decision in R v Stone, it contends the trial judge erred in law by finding the defence of automatism was available to Mr.Fontaine even though he had failed to call expert psychiatric evidence to the effect that his actions had been involuntary. [19] In order to deal with these submissions, it is necessary to first confirm the basis of the trial judge’s decision. That done, I willconsider whether R v Stone applies to the circumstances at hand. A. The basis of the trial judge’s decision [20] Voluntariness and intention are separate concepts.

The former is an aspect of the actus reas of an offence. The latter involvesthe mens rea of the offence. See: Morris Manning, Q.C., and Peter Sankoff, Criminal Law, 5th ed (Markham, Ont: LexisNexis, 2015) at149–153; Eric Colvin and Sanjeev Anand, Principles of Criminal Law, 3d ed (Toronto: Carswell, 2007) at 168–171, 180–182. [21] Unlike the Crown, Mr. Fontaine reads the trial judge’s decision as turning on the straightforward notion that the Crown hadfailed to prove the mens rea of the alleged assault.

This view is possible because the decision does make various references to “intent”.Moreover, the trial judge invited counsel to make submissions during oral argument on the issue of intent and she concluded her reasonsfor decision by saying this: Plausible evidence regarding the defendant’s actions raises a doubt in my mind based on reason and common sense as to the presence ofthe necessary intent.

The Crown has failed to establish the requisite intent that is an essential ingredient of the offence charged. … [22] However, read as a whole, the trial judge’s decision is best and most fairly seen as being based on the concept of

voluntariness, rather than intention. Notwithstanding that she sometimes used the word “intention” in her decision, the reality is that theauthorities relied on by the trial judge deal with voluntariness and the heart of her analysis, reproduced below, was clearly directed at thatquestion: …The defendant was asleep in his bed when he was abruptly assaulted by the complainant, she slapped his feet and wrenched on his leg.By her own admission the complainant was very angry with the defendant; one can infer it was a rude awakening. She testified that heimmediately struck back with his hand.

On the evidence that can be inferred, it was an automatic and unthinking response to beingstartled from sleep in an aggressive fashion. There is no evidence that the defendant came to a state of alertness or consciousness, no words were spoken between them, the exchangehappened in mere moments. As the foregoing cases exemplify, the defendant’s conduct has all the hallmarks of a reflexive action to asudden and rather startling stimulus while in a state of sleep. … (Emphasis added) [23] Accordingly, I will proceed on the basis that the trial judge’s decision was grounded on a conclusion that Mr.

Fontaine wasacting reflexively, and hence involuntarily, when he struck Ms. Lemaigre. I do so noting that the Crown does not suggest the trial judge’sapparent conflation of intention and voluntariness is a basis for overturning Mr. Fontaine’s acquittal. B. R v Stone and its relevance to this case [24] R v Stone is the leading Canadian authority on the law of automatism. In it, Bastarache J., writing for the majority of theSupreme Court, recalibrated the law in this area.

More particularly, Bastarache J. held that, in cases involving automatism, the defencebears the burden of proving involuntariness on a balance of probabilities. In order to satisfy that burden, he said there must be both anassertion of involuntariness and confirming psychiatric evidence. The required approach was summarized as follows: 192 To sum up, in order to satisfy the evidentiary or proper foundation burden in cases involving claims of automatism, the defencemust make an assertion of involuntariness and call expert psychiatric or psychological evidence confirming that assertion.

However, it isan error 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 the triggeringstimulus, corroborating evidence of bystanders, corroborating medical history of automatistic-like dissociative states, whether there isevidence of a motive for the crime, and whether the alleged trigger of the automatism is also the victim of the automatistic violence. Ipoint out that no single factor is meant to be determinative.

Indeed, there may be cases in which the psychiatric or psychologicalevidence goes beyond simply corroborating the accused’s version of events, for example, where it establishes a documented history ofautomatistic-like dissociative states. Furthermore, the ever advancing state of medical knowledge may lead to a finding that other typesof evidence are also indicative of involuntariness.

I leave it to the discretion and experience of trial judges to weigh all of the evidenceavailable on a case-by-case basis and to determine whether a properly instructed jury could find that the accused acted involuntarily on abalance of probabilities. (Emphasis added) [25] The Crown reads R v Stone as applying to every situation where voluntariness is in issue. In consequence, it submits that thetrial judge should have placed the onus on Mr.

Fontaine to prove involuntariness on a balance of probabilities and should not haveconsidered or given effect to the idea of a reflex action in the absence of expert psychiatric evidence confirming the involuntariness ofMr. Fontaine’s assault on Ms. Lemaigre. I do not understand R v Stone as extending this broadly or, indeed, as applying to thecircumstances of this case. Let me explain. [26] Conduct must be voluntary in order for it to be criminal.

See, for example: R v Parks, (SCC), [1992] 2 SCR871 at 896, where, writing for the majority of the Supreme Court, La Forest J. adopted the comments of Dickson J., in Rabey v TheQueen, (SCC), [1980] 2 SCR 513 at 522, dissenting – but not on this point – who had said “it is basic principle thatabsence of volition in respect of the act involved is always a defence to a crime”. [27] As noted above, voluntariness is an aspect of the actus reas of a crime.

This was explained in R v Théroux, (SCC), [1993] 2 SCR 5 at 17 (cited in R v Daviault, (SCC), [1994] 3 SCR 63 at 74), where McLachlin J. (as she thenwas) said: 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. See also: R v Stone at para 34. [28] Claims of involuntariness can arise in or from a variety of situations and causes including ailments such as stroke or epilepsy;extreme intoxication; psychological shock; being stung by a swarm of bees; drugs; concussion; being propelled by the actions or grasp ofanother person; and somnambulism.

See: Don Stuart, Canadian Criminal Law, 6th ed (Scarborough: Carswell, 2011) at 115–116; R vHundal, (SCC), [1993] 1 SCR 867 at 875–876; R v Jiang, 2007 BCCA 270 at para 20, 220 CCC (3d) 55. [29] Automatism has been defined in several ways, some of which are admittedly quite broad. Thus, for example, in Bratty v

Attorney-General for Northern Ireland , [1963] AC 386 (HL) at 409, Lord Denning described automatism as: …

an act which is done by the muscles without any control by the mind, such as a spasm, a reflex action or a convulsion; 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 or whilst sleep-walking. … [ 30 ] However, in R v Stone , I do not understand Bastarache J. to have used “automatism” in a fully comprehensive sense, i.e., I do not understand him to have used automatism as a synonym for voluntariness. At paragraph 156, he defined automatism as “a state of impaired consciousness … in which an individual, though capable of action, has no voluntary control over that action”.

The notion of “a state of impaired consciousness” readily describes conditions such as those that underpinned R v Stone itself (psychological shock), R v Parks (somnambulism) and R v Daviault (extreme intoxication). It does not describe involuntary actions such as reflex responses.

Accordingly, it is not insignificant that, at paragraph 170 of his decision, Bastarache J. referred with apparent approval to R v Parks , at page 896, where La Forest J. had classified automatism as “a sub-set of the voluntariness requirement”. [ 31 ] The Court of Appeal for Ontario’s words of explanation in R v Luedecke , 2008 ONCA 716 , 236 CCC (3d) 317, are also helpful here: [54] A claim by an accused that his or her conduct was involuntary and should result in an acquittal for that reason can arise in a variety of very different circumstances.

Automatism is the legal term used to describe one specific kind of involuntary action : see Bratty v. Attorney-General for Northern Ireland , [1961] 3 All E.R. 523, [1963] A.C. 386 (H.L.) , per Lord Denning at pp. 408-409; Parks , per La Forest J. at p. 302. Automatism refers to involuntary conduct that is the product of a mental state in which the conscious mind is disassociated from the part of the mind that controls action.

A person in a state of automatism may perform acts, sometimes complicated and apparently purposeful acts, but have no control over those actions: William Wilson et al. , “Violence, Sleepwalking and the Criminal Law:

(2) The Legal Aspects”

(2005) Crim. L.R. 614, at pp. 615-16. North P. put it this way in R. v. Burr , [1969] N.Z.L.R. 736 (C.A.), at p. 744: In my opinion then there is now clear judicial authority for the view that in order for a defence of automatism to succeed, the person whose conduct is under review must be unconscious of what he was doing.

In short that what he did was an unconscious involuntary act…[I]n my opinion, the evidence must be sufficient to lay a proper foundation for the plea that the accused person acted through his body and without the assistance of his mind, in the sense that he was not able to make the necessary decisions and to determine whether or not to do the act. [55] The disassociative state that is the hallmark of automatism can be caused by many things including disease, mental illness, concussion, drugs and parasomnia.

Each of these conditions can produce a condition in which an accused, while capable of complex, apparently goal-oriented conduct, is incapable of exercising any control over those actions. As will be discussed below, the cause of the automatism is an important consideration in characterizing the nature of the automatism. (Italics emphasis in original; underline emphasis added) [ 32 ] Thus, automatism as addressed by R v Stone is best seen for present purposes as a particular sort of involuntary action. It is not, as the Crown suggests, an entirely general term that includes every possible kind of such action.

In my view, circumstances involving reflex actions do not fall within the ambit of the approach prescribed by Bastarache J. [ 33 ] There is something of an underlying policy rationale for treating dissociative states where the accused does not know what he or she is doing differently than involuntary actions that are the result of a reflex. As noted by Bastarache J. at paragraphs 175 and 176 of R v Stone , automatism raises special concerns because it is easily feigned and because knowledge of it rests with the accused.

Moreover, the characteristics and nature of dissociative states resulting from such things as reactions to pharmaceuticals, psychological blows and somnambulism are well beyond the ordinary experience of a judge or jury. Accordingly, it is important that an accused who relies on the defence be required to call expert psychiatric evidence and to carry the burden of proving involuntariness in that instance. The same cannot be said, in my view, about reflex actions.

They are a common part of human experience and, while something that will legitimately arise only very rarely in criminal proceedings, they can ordinarily be meaningfully understood and evaluated by judges and juries without the assistance of expert testimony. [ 34 ] As well, and relatedly, the less than comprehensive reach of R v Stone is underlined by the fact that the requirement for expert psychiatric evidence prescribed by Bastarache J. does not fit at all sensibly with the full range of involuntary actions.

Take, for example, the situation where a person reacts after a swarm of bees enters the cabin of his vehicle and is charged with dangerous driving under s. 249(1) (

a) of the Criminal Code . If that person argues his actions were involuntary, there would be little point in obliging him or her to call expert psychiatric evidence or, indeed, any expert evidence to prove that point. The same might be said, by way of further example, of the situation where A pushes B into C and B is then charged with assaulting C. B’s contact with C will have been involuntary but nothing would be served by calling expert psychiatric evidence on the point.

Indeed, it is difficult to see what a psychiatrist could possibly say about the situation. [ 35 ] Finally, the reversal of the onus of proof described in R v Stone is, of course, an exceptional idea. Voluntariness is part of the actus reas and, as such, is something that the Crown would ordinarily be required to prove, albeit aided by the common sense notion that the acts of an apparently conscious person are usually voluntary. The law should not move easily away from this approach, particularly in light of the presumption of innocence reflected in ss. 7 and 11(

d) of the Charter . Accordingly, I am not inclined to read R v Stone any more broadly than its terms suggest is required. [ 36 ] Therefore, in conclusion, I do not understand R v Stone to be aimed at all involuntary acts, including reflexive ones. It follows that the Crown’s argument on this point must fail. C. The sufficiency of the evidence [ 37 ] The Crown also suggests, somewhat obliquely, that the trial judge erred in law because there was no proper evidentiary base

on which she could have concluded that Mr. Fontaine struck Ms. Lemaigre by way of reflex. [38] As noted above, this appeal is brought pursuant to s. 676(1)(

a) of the Criminal Code and hence the Crown may appeal onlyon “a question of law alone”. [39] It is well established that it is an error of law to make a finding of fact for which there is no supporting evidence. See: Schuldtv The Queen, (SCC), [1985] 2 SCR 592 at 604. However, it does not follow that an acquittal can be set aside on thebasis that it is not supported by the evidence.

This principle was explained as follows in R v J.M.H., 2011 SCC 45, [2011] 3 SCR 197: [25] … An acquittal (absent some fact or ele​ment on which the accused bears the burden of proof) is not a finding of fact but instead acon​clusion that the standard of persuasion beyond a reasonable doubt has not been met. Moreover, as pointed out in R. v.

Lifchus, (SCC), [1997] 3 S.C.R. 320, at para. 39, a reasonable doubt is logically derived from the evidence or absence of evidence.Juries are properly so instructed and told that they may accept some, all or none of a witness’s evidence: Lifchus, at paras. 30 and 36;Canadian Judicial Council, Model Jury Instructions,

Part III, Final Instructions, 9.4 Assessment of Evidence (online). [26] The principle that it is an error of law to make a finding of fact for which there is no supporting evidence does not, in general,apply to a decision to acquit based on a reasonable doubt. As Binnie J. put it in R. v.

Walker, 2008 SCC 34, [2008] 2 S.C.R. 245, at para.22: A major difference between the position of the Crown and the accused in a criminal trial, of course, is that the accused benefits from thepresumption of inno​cence. . . . [W]hereas a conviction requires the pros​ecution to establish each of the factual elements of the offencebeyond a reasonable doubt, no such requirement applies to an acquittal which, unlike a conviction, can rest simply on the absence ofproof. [Emphasis deleted.] [27] The point was expressed very clearly in R. v.

Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 33: “. . . as a matter of law, theconcept of ‘unreasonable acquittal’ is incompatible with the presumption of innocence and the burden which rests on the prosecution toprove its case beyond a reasonable doubt.” [40] Although it is certainly possible to question the strength of the evidentiary basis for the trial judge’s assessment ofvoluntariness in this case, the frailty of the evidence does not amount to an error of law that could warrant an intervention by this Court.

V. conclusion [41] I conclude that the Crown’s appeal must be dismissed. “Richards C.J.S.” Richards C.J.S.I concur. “Caldwell J.A.” Caldwell J.A.I concur. “Richards C.J.S.”forWhitmore J.A. as per authorization