Omni May Not Include All: Case Comment on Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC

Contributed by Loïc Welch


“The duty to consult is about encouraging governments to consider their effects on Indigenous communities and consult proactively” (para 96)

The Charter of Rights and Freedoms guarantees that every Canadian has a fundamental right to life, liberty, and security. Moreover, as stated by Dr. Tedros Adhanom Ghebreyesus, Director-General of the World Health Organization, “[t]he enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition.”

In Canada, the Crown has recognized and affirmed Indigenous rights, and has a duty to consult whenever governmental action may adversely affect these rights. However, what triggers this duty is being hotly disputed in the courts, as many cases have made their way to the Supreme Court of Canada in recent years.

The Duty to Consult

The relationship between Indigenous peoples and Canada is governed by the honour of the Crown, enshrined in section 35 of the Constitution and includes the duty to consult. This duty binds the Crown to consult Indigenous peoples whenever it contemplates actions potentially infringing Aboriginal rights. Moreover, as detailed in the Haida Nation decision, this duty is triggered even if the right or title potentially exists, but has not yet been determined to exist. The duty cannot be ignored if a consultation is requested. It requires that both parties deal in good faith.

To interpret the honour of the Crown as restricting its responsibility to only matters of Aboriginal rights and titles would run counter to reconciliation goals between the government of Canada and Indigenous peoples. After years of inquiry, the Truth and Reconciliation Commission put forth calls to action to guide the Canadian Government in recognizing its part played in the colonial history with regards to the marginalization of Indigenous peoples. This led to the establishment of the Principles respecting the Government of Canada’s relationship with Indigenous peoples. The sixth principle specifically states that “[t]he Government of Canada recognizes that meaningful engagement with Indigenous peoples aims to secure their free, prior, and informed consent when Canada proposes to take actions which impact them and their rights, including their lands, territories and resources” [added emphasis]. With this principle, the government recognizes that their duty towards Indigenous peoples extends beyond the duty to consult on purely Aboriginal rights and treaties. For instance, many Nations live and depend on the lands around them and their interests in these lands have a major impact on their health and general well-being. If the government intends to implement or disband regulations, through legislation, which may have adverse impact on neighbouring Nations, then it seems the duty to consult would be triggered.

Health extends beyond simply what you would go to the hospital for. There is a growing body of research that highlights what are termed “social determinants of health” which comprise social, economic, cultural, and political inequities influencing health outcomes of Indigenous peoples. With this in mind, it’s important to recognize that the colonial history and continuing marginalization of Indigenous peoples has profound effects on their mental, physical, and spiritual well-being. In fact, Indigenous peoples, both on reserve and off-reserve, suffer from serious health issues (e.g. increased rates of malnutrition, suicide, mental health issues, infectious diseases) as compared to the general Canadian population. While the Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40 case, outlined in the following section, appears to deal exclusively with issues of Aboriginal rights and treaty rights, the repercussions are far-reaching and set precedent for immunizing legislation from the duty to consult. This duty has been recognized and circumscribed to executive actions. In other words, the government only has an obligation to consult Indigenous peoples where it is taking direct action, and is absolved of this duty when developing legislation.

The government only has an obligation to consult Indigenous peoples where it is taking direct action, and is absolved of this duty when developing legislation.

Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40

In 2012, the Government of Canada introduced two omnibus bills setting the course on environmental protection; no Indigenous Nations were consulted before the introduction of these bills. The Mikisew Cree First Nation brought an application for judicial review, stating that because of the potential impact of the omnibus legislation on their treaty rights, the Crown had a duty to consult in accordance with s. 35 of the Constitution.

The duty to consult is context-dependent and requires a proportionate consultation to the degree of infringement on the alleged right. In this case, the Mikisew Cree Nation contended that the legislation threatened their right to hunt, trap, and fish on their traditional territory—which have core implications to the way of life and health of the Nation. These rights were recognized and guaranteed by the Crown in Treaty 8, and the alleged breach by the omnibus bill would require “deep” consultation, proportionate to the infringement.

The reviewing judge agreed with the Mikisew, stating that the duty to consult had been triggered. However, the Federal Court of Appeal disagreed and found that the reviewing judge erred by reviewing legislative action, which is immune from review. The Mikisew appealed the decision to the Supreme Court of Canada. The majority concluded that duty to consult is only recognized and circumscribed to executive action. In other words, the government only has an obligation to consult Indigenous Nations where it is taking direct action, and not when developing legislation. The majority explained that the separation of powers found in the Constitution favours minimal interference from one branch of government to another (i.e. legislative, executive, and judiciary). The majority stated that “[a]pplying the duty to consult doctrine during the law-making process would lead to significant judicial incursion into the workings of the legislature [para 38].” Moreover, the recourses used to mend a breach of the duty to consult would amount to undue judicial interference in the law-making process.

The Honourable Justices Abella and Martin JJ., concurring in-part, expressed their concern about the majority’s reasoning when it came to legislative immunity from judicial review in situations where the duty to consult is potentially breached. They contended that recognizing this immunity would essentially create a “gap in the s. 35 framework” and leave “Aboriginal rights-holders vulnerable to the same government objectives carried out through legislative, rather than executive, action [para 79].” The Justices continued, stating that the Crown was bound to its honour in all relations with Indigenous peoples and that the principle of parliamentary sovereignty does not absolve the Crown from consulting when potential rights or interests are at stake.

Commentary & Implications

The governing principles that guide the relationship between the Crown and Indigenous peoples in Canada denote the importance of respecting already-established treaty rights and Aboriginal rights. However, there is also a contention that the interests of Indigenous peoples extend beyond simply these categorized rights.  In the third governing principle, it is stated that the honour of the Crown also ensures that Indigenous peoples are to be treated with respect like all other Canadians. Importantly, the goal of these principles is to recognize a duty of “good faith, the rule of law, democracy, equality non-discrimination, and respect for human rights.” Do Indigenous interests and human rights not include a fundamental right to health, such as that recognized by the World Health Organization? The Supreme Court of Canada, in Mikisew case, restricts the duty to consult to direct action by the government, rendering legislative direction which directly threatens many Indigenous peoples’ way of life immune from judicial oversight. In this case, the omnibus bills will weaken the protections in place for natural resources and food sources for the Mikisew Nation, thereby threatening their livelihood and other interests, such as health, which were previously protected by treaty.

Loïc Welch is a Senior Online Editor of the McGill Journal of Law and Health and a second-year B.C.L./LL.B. student at McGill University’s Faculty of Law. Loïc holds a M.Sc. in Forensic Psychology from Maastricht University (Netherlands), was a research assistant at the Douglas Mental University Institute in Montreal, and interned at the Professional Clinical and Forensic Services, a part of the Institute on Violence, Abuse, and Trauma in San Diego, California.

Moving Toward Inclusiveness in Safe Injection Sites

Contributed by Loïc Welch

Canada decided, as a country, to respond to the growing drug epidemic by following the harm-reduction route and choosing not to criminalize some of its most vulnerable populations. A legal framework to tackle the growing issue of drug-related hazards arose out of collaboration between local, provincial, and federal actors who came together to create sites where drug possession is exempted from criminalization. Safe injection sites (SIS) provide medically supervised locations where the users can administer their own drugs safely and without fear of arrest and prosecution by law enforcement. The purpose of this endeavour was to address the rising epidemic of blood-borne diseases – which spread through the sharing of infected needles – and the increasing rates of drug overdoses resulting in death. The Insite facility, located in Vancouver’s Downtown Eastside and founded in 2003, was the Canadian trailblazer. It received an exemption from the Controlled Drugs and Substance Act (CDSA), granted by the federal government. In 2008, the Minister of Health decided not to renew Insite’s legal exemption from the CDSA, leading into a contentious legal challenge on constitutional grounds. While the complete constitutional powers analysis is fascinating, it was ultimately the Charter infringement that paved the way for real change. Former Honourable Chief Justice Beverly McLachlin, writing for the majority, held that the claimants’ rights to life, liberty, and security of the person under section 7 of the Charter were violated by the Minister’s decision of not renewing the exemption from the CDSA. In order for Insite to fulfill their mandate, the people who use their services needed to not fear consequences of possessing drugs at the site: “To prohibit possession by drug users anywhere engages their liberty interests; to prohibit possession at Insite engages their rights to life and to security of the person” (para 92). The latter part of the quote refers to the fact that by criminalizing drug possession at Insite, it prevents the users from safely administering their drugs and potentially exposes them to life-threatening situations, thus engaging all three section 7 rights.

2755486071_7c387fa774_o Syringe. || (Source: Flickr // Syringe 4 With Drops )

Drug addiction is a recognized mental disorder that, in addition to the primary impact of the drug on the body, carries a slew of hazards to the user. One example is the unsafe injection practices arising out of the need for an immediate ‘fix’. These include sharing injection material, overusing needles, unsanitary solvents, and so forth. In addition, many users risk encounters with law enforcement for drug possession, use, and trafficking. The criminal charge of trafficking given to drug users is often the result of them purchasing the drugs together and sharing them, which does not align with the purpose behind the criminalization of trafficking. This issue would require the government to undertake a cost-benefit analysis of harm-reduction and deterrence, and implement a possible exemption from trafficking laws in SIS. Such an improvement would align with common drug use practices known as ‘split dosing’ and assisted injection. Many drug users buy their doses jointly and split it amongst themselves, especially in times of financial precarity; they also often inject together, assisting the other person in time of need.

6391981735_85788bc133_o Rob & Mary a few weeks before she died of an overdose. In the Picture Robbie is burning the heroin on the aluminium foil so that Mary can inhale it. || (Source: Flickr // Love on the Streets )

Implemented in other SIS and overdose prevention services across Canada, this practice has the benefit of providing a modicum of safety and support in an otherwise hazardous environment. However, while these exempted sites have won the battle over decriminalized possession in their facilities, other common practices surrounding drug use remain illegal onsite. These pose barriers to accessibility and can turn away some of the most vulnerable users that would otherwise greatly benefit from their services. To get a better understanding of these issues I went to meet Kim Brière-Charest, coordonatrice de l’intervention de proximité de L’Anonyme (SIS Mobile) in Montreal. The following section is in French, to report her words more accurately.

Kim commença par m’expliquer les structures de SIS en place au Québec, les réalités du terrain et la nature des enjeux existant. Montréal recoupe quatre services d’injection supervisée (SIS), incluant des utilisateur(e)s qui consomment des substances issues de prescriptions légales dont certains en sont devenus dépendants(e)s. Ces utilisateur(e)s représentent une portion non-négligeable des individus qui utilisent les services du SIS, et cette portion fait partie de la crise des opioïdes tant médiatisée. Il existe également d’autres espaces sécuritaires pour les personnes consommant  des substances comme les centres de prévention des surdoses (CPS ou overdose prevention services (OPS)). Ceux-ci sont non-exemptés du CDSA par Santé Canada et sont, dans certains cas, des mesures transitoires dans l’attente de l’obtention d’exemptions.  Ils sont généralement tolérés notamment sous forme de « pop-ups » par les autorités publiques.

Les SIS ont été implantés via des organismes à but non lucratif en partenariat avec le Centre intégré universitaire de santé et de services sociaux (CIUSSS) du Centre-Sud-de-l’Île-de-Montréal. Les équipes sur le terrain sont composées d’intervenants psychosociaux, de pairs-aidants (dans certains sites), et de personnel infirmier. Ces équipes créent un soutien, autant psychosocial que médical, pour venir en aide aux individus utilisant les SIS dans le but de réduire les risques liés aux pratiques entourant la consommation. Kim m’expliqua que les SIS connaissent les lacunes des exemptions, ce qui laissent des manques à combler. Le législateur associe le partage de dose au trafic de substances, ce qui n’est pas inclus dans l’exemption pour possession à des fins de consommation personnelle. Cependant, ce résonnement ne reflète pas la réalité de la pratique de consommation puisque la population achète les doses ensemble et les consomme ensemble. L’injection assistée est souvent liée à des pratiques de partages de doses sur le terrain. Un projet-pilote d’injection assistée a été proposé par Santé Canada à six SIS à travers le pays notamment en réponse à la demande des communautés de réduire les barrières d’accès aux services pour des personnes nécessitant un soutien à l’injection. On peut par exemple penser à celles prises avec des limitations physiques qui les empêchent de manipuler le matériel d’injection de façon sécuritaire. Leur demande amène un volet d’enseignement des techniques d’injection et de sécurité plus inclusives. Cela réduirait les critères d’exclusion aux SIS au même titre que le partage de dose qui demeure, à présent, illégal alors qu’il fait partie des réalités courantes sur le terrain. Kim conclut avec une phrase qui reflète le besoin de changement : « À L’Anonyme, on considère primordial de développer des services en adéquation avec les besoins de la communauté. Comme le partage de dose fait partie des pratiques de consommation courantes, il demeure incontournable de décloisonner les barrières à l’accessibilité afin d’être en cohérence avec le terrain, particulièrement dans un contexte de surdoses où le but premier est d’offrir un espace de consommation sécuritaire et de prévenir des décès qu’on est en mesure d’éviter. »

Loïc Welch is a Senior Online Editor of the McGill Journal of Law and Health and a second-year B.C.L./LL.B. student at McGill University’s Faculty of Law. Loïc holds a M.Sc. in Forensic Psychology from Maastricht University (Netherlands), was a research assistant at the Douglas Mental University Institute in Montreal, and interned at the Professional Clinical and Forensic Services, a part of the Institute on Violence, Abuse, and Trauma in San Diego, California.

Criminal Liability & Mental Illness: A Clash of Minds, Media, and Parliament

Contributed by Loïc Welch

“In every society there are those who commit criminal acts because of mental illness. The criminal law must find a way to deal with these people fairly, while protecting the public against further harms. The task is not an easy one.” [Justice McLachlin in Winko v B.C.]

Several high-profile Canadian cases (e.g., Allan Schoenborn, Guy Turcotte, Vincent Li) brought much media coverage, societal attention, and community backlash to the Criminal Code’s section 16 liability regime—Not Criminally Responsible on account of Mental Disorder (NCR). The public outcry stemmed from a lack of understanding of mental health, criminal law procedures, and the NCR regime itself, culminating in an amendment in 2014. For an appreciation of these changes, it is important to gain a bit of historical perspective as to the development of the current regime.

The History of the NCR Defence

The NCR defence was introduced following the 1992 amendments to the Criminal Code and replaced the Not Guilty by Reasons of Insanity defence (NGRI), which absolved criminal responsibility. The accused would come under the authority of the State and could be indefinitely detained until otherwise decided by the lieutenant governor. In addition, the NGRI defence could be raised by either party and effectively could be used as a means of involuntary and indefinite imprisonment with no mandatory review imposed on the State. The NGRI regime put the safety of the public above the interests of the accused and offered no procedural protection for the mentally ill. Offenders could not appeal the decision and were left in psychiatric institutional detention to the deference of the lieutenant governor – the only official endowed with power to allow their reintegration into society.

Window Under the old NGRI regime, a person with mental health issues could be detained involuntarily for an indefinite amount of time. || (Source: Flickr // Paul Hudson )

In R v Swain (1991), the Supreme Court of Canada (SCC) found the NGRI regime unconstitutional and pushed Parliament to enact new legislation for mentally ill offenders. Specifically, Chief Justice Lamer writing for the SCC majority, took issue with the NGRI regime’s automatic detention being subjected to the lieutenant governor’s beneficence and enabling potential indefinite detention. The SCC ruled that this violated section 7 (right to life, liberty, and security of the person) and section 9 (right not to be arbitrarily detained) of the Canadian Charter of Rights and Freedoms. The SCC struck down the regime, read down its current application, and asked Parliament to write new legislation within six months. And so, in 1992, Bill C-30 amended the Criminal Code, introducing the Review Board, a provincial/territorial tribunal with authority over mentally ill offenders, which thereafter introduced the new NCR regime via section 16.

Importantly, the new NCR regime introduced new procedural safeguards, stipulating that only the defence may raise issues of mental deficiency (there are some exceptions that are beyond the scope of this article), thus respecting the choice of the accused who may not wish to raise the NCR defence for a variety of reasons. Once raised, mental incapacity for the offence must be proved on a balance of probabilities (i.e., that is it more probable than not that the accused was suffering from a mental disorder at the time of the offence). When an accused is found to not have been in the “right” state of mind to appreciate the nature and quality of their acts, or could not form the requisite intent (i.e., mens rea or guilty mind), due to a “disease of the mind”, the accused will be found NCR. This ruling is not synonymous with an acquittal as the individual is deemed to have committed the offence – actus reus – but was lacking the mens rea component necessary for a guilty verdict.

2013-05-19 - 09.15.00 (Public) The Supreme Court of Canada found the NGRI regime unconstitutional. || (Source: Flickr // Robert Lindsell )

The Role of the Review Boards

Once an accused is found NCR, they fall under the authority of the province (or territory) and will receive treatment until such a time as they no longer pose a threat to society. The ultimate goal is to reintegrate the individual into society, while weighing the safety of the public against the rights of the accused. The provincial authority is embodied by the Review Board whose purpose is to review and modify dispositions to NCR offenders. Review Boards are administrative courts specialized in mental health and criminal law which require the presence of at least one psychiatrist and/or a physician with a different specialization, in addition to a mental health practitioner. The Review Board must set dispositions for the accused on a yearly basis, taking into account public safety, the mental condition of the accused, and the goal of societal reintegration. In Winko v BC, the accused posed a section 15 (equality under the law without discrimination) Charter challenge of section 672.54 of the Criminal Code, claiming that it placed an unfair burden on the accused to disprove dangerousness as failing to do so could lead to indefinite detention – reminiscent of the NGRI’s lieutenant governor’s discretion. The SCC rejected this argument but specified that the Review Board must order the least onerous and restrictive disposition available, unless the accused poses a significant threat to the public. Ultimately, following Winko the SCC stipulated that “[if] the accused is not a significant threat to the safety of the public, by order, direct that the accused be discharged absolutely.”

Shift in NCR Policy

In 2005, however, a shift in policy (Bill C-10) began affecting the NCR regime, where victims’ rights were bolstered at the expense of offenders’ liberty. For instance, Review Boards now had to inquire whether the victim knew about their right to submit an impact statement and could potentially adjourn the hearing if this right had been infringed by not informing them of their right to submit said statement. Importantly, the Review Board could now extend hearings by up to two years for offenders charged with a serious personal injury offence in detention and who were not considered likely to show behavioural improvement. This policy trend found public support following a series of brutal offences (often involving the killing of children) and wide-spread media coverage of the perpetrators’ NCR proceedings. The visceral reaction is understandable given the brutal and shocking nature of the index offences being publicized, however, it is important to consider that these cases are of extremely rare occurrence: approximately 1 in 1000 cases are found NCR and 10% of these are for violent offences.

In response to increased public fear, parliament adopted a tough-on-crime approach such as 2014’s Bill C-14’s introduction of a high-risk accused designation for persons with mental illness who have committed a serious personal injury offence and representing an increased likelihood of future violence. Furthermore, at Review Board hearings, the status of high-risk prevents the accused from obtaining any type of non-medical related leave from the hospital or detention centre. The new legislation increases the permissible interval between review hearings to a maximum of 36 months rather than the usual annual review given for other NCR individuals. Finally, once the Review Board is satisfied that the accused no longer poses a substantial risk, they must refer the case to the Superior Court for review, which is the only court with the power to revoke the high-risk status.

Three years since its introduction, no court has yet given an NCR offender the high-risk status. Most notably, the case of Mr. Schoenborn, who was found NCR in 2010 for the killing of his three children, has set a precedent in the applicability of the new designation. In 2015, the Crown petitioned the Supreme Court of British Columbia to have Mr. Schoenborn designated as a high-risk accused. The Court avoided ruling on this new piece of legislation by claiming that it did not operate retrospectively. However, in 2017, the Crown once again applied to have Mr. Schoenborn found high-risk, and this time, the Court ruled that the dangerousness of the accused must be assessed at the “present” time. Therefore, even if “high-risk” was introduced in 2014, the statute was not applied retrospectively.

In 2005, however, a shift in policy began affecting the NCR regime, where victims’ rights were bolstered at the expense of offenders’ liberty.

There is little doubt, however, that eventually an NCR offender will be labelled high-risk and this is likely to bring forth many of the same Charter challenges as the initial NGRI regime (i.e., s.7, s.9, s.15). In addition, it is fair to assume that an increasing “high-risk” designated population would strain current facilities and associated resources due to their long-term mandatory detention. These changes appear to stem from a change in the past fifty years that witnessed a shift from institutional care (such as psychiatric wards) toward community-based intervention in mental health. However, lack of community resources, and increasingly complex clinical and psycho-social profiles resulted in many individuals in need of institutional care coming instead in contact with the criminal justice system.


Loïc Welch is an Online Editor of the McGill Journal of Law and Health and a first-year B.C.L./LL.B. student at McGill University’s Faculty of Law. Loïc holds a M.Sc. in Forensic Psychology from Maastricht University (Netherlands), was a research assistant at the Douglas Mental University Institute in Montreal, and interned at the Professional Clinical and Forensic Services, a part of the Institute on Violence, Abuse, and Trauma in San Diego, California.

The Curious Dichotomy of (in)Sanities

Contributed by Loïc Welch

For most people, the inner workings of the brain and the resulting behaviour work seamlessly, and we behave in “socially acceptable” ways. But, what happens when the brain is “faulty?” Take for instance the famous case of Phineas Gage, who had a tragic accident at work, where a railroad blasting rod pierced through his skull into his brain. Mr. Gage survived this accident, however, his once well-behaved personality was altered to a more chaotic one. He began gambling, and became short-tempered, impulsive, and violent. Mr. Gage had suffered damage to the area of the brain known as the orbitofrontal cortex, implicated in emotional regulation, decision making, and impulse control.

Phineas Phinease Gage suffered brain trauma from a rod that pierced through his skull || (Source: Flickr // Protocol Snow)

If, for instance, Mr. Gage had killed someone in a barfight, without premeditation; by today’s legal standards, would Mr. Gage be found guilty (of 2nd degree murder or manslaughter) or would he instead be found not criminally responsible on account of mental disorder (NCRMD)? Is he responsible for his aberrant, perhaps incontrollable, behaviour ensuing from a traumatic brain injury? Or to the crux of the issue, are humans responsible for their behaviour, if it is nothing more than the result of brain function? A biological view of behaviour suggests that regardless of whether someone has a rod in their brain (tumour or other forms of severe brain trauma), all of their actions are controlled by their brain’s function.

The Guilty Mind

The above example is an introduction to the deterministic view of human behaviour as dictated by our brain (mal)functioning. Mr. Gage’s actions were determined by a brain that “misfired” as a result of physical trauma, leaving very little room for the concept of free will and voluntary action. This poses a fundamental challenge to the concept of criminal justice that relies on a crucial principle: that only the morally guilty should be punished. Guilt is determined by a defendant’s level of culpability, or in legal terms, their mens rea, which comes from the Latin phrase actus reus non facit reum nisi mens sit rea, translated to “the act is not culpable unless the mind is guilty.” The basic tenets of criminal justice inform our conception of mens rea: guilt is determined by one’s capacity to distinguish right from wrong and subsequent choice to act in the wrong. There is an assumption of free will and voluntary action. What happens to mens rea if the neuroscientific understanding of brain and behaviour removes free will from the agent? This question has lead to such defences as sane automatism, which can lead to full acquittal because it removes voluntary action from the individual.

The Not-so-Guilty Mind

To understand the case below (R v Stone), let me first explain the concept of automatism. There are two types of automatism defences: the first is sane automatism, where involuntary behaviour does not result from a mental disorder and is a complete defence, giving rise to full acquittal. For instance, sane automatism could be used as a defence if a defendant had murdered someone during a sleepwalking episode. Indeed, the Supreme Court of Canada, in R v. Parks, upheld the trial decision of allowing sleepwalking to be used as a sane automatism defence. This brings back the notion of mens rea: that only voluntary actions may lead to legal culpability. Generally, the factors required for a sane automatism defence must be extrinsic and are as follows: (1) there must exist an involuntary action arising from external source (or reflex action); (2) the action must be completely involuntary; and (3) the automatism must not be self-induced (that is why excessive alcohol/drug consumption is not a viable defence of automatism).

What happens to mens rea if the neuroscientific understanding of brain and behaviour removes free will from the agent?

The second type is insane automatism, where the actions of the accused are held to be the result of a mental disorder and triggers s.16 of the Canadian Criminal Code leading to a defendant being found NCRMD, again reflecting that the defendant could not appreciate the nature and quality of their act. Recall the earlier example of Mr. Gage killing a patron during a bar brawl; which of the two automatism defences could be argued most effectively? Would Mr. Gage’s brain injury justify the use of insane automatism because it would be considered as resulting from an internal cause? Or would the murder be acquitted under a sane automatism defence because Mr. Gage’s brain injury had an external causal factor [a rod] and was exacerbated by alcohol consumption? The predicament raised by the automatism defences, and the fine line between what is considered sane or insane by the courts, identifies a disconnect between fictional legal dichotomies and the neuroscientific reality that our brain controls our behaviour in all situations. This renders the concept of voluntariness moot to the eyes of science.

(mis)Communication of Science in the Courtroom

In recent years, there has been a sharp increase in the use of expert witnesses in courts which exemplifies a shift in the legal paradigm toward “hard facts,” stemming from science and its rigorous methodology. Among these experts are psychologist, psychiatrists, neuroscientists, and other specialists whose mandate is to inform the triers-of-fact in making more scientifically-informed judgements. When neuroscience meets the legal discipline, it is coined neurolaw.

In 1999, the Supreme Court of Canada was confronted with the challenging case of R v. Stone where Mr. Stone was appealing the guilty verdict of manslaughter for the killing of his wife via 47 stabbings. The trial judge had instructed the jury to consider insane automatism as a defence, but this failed, and he received a seven-year imprisonment sentence for manslaughter. The appeal, asking for Mr. Stone to be found NCRMD, was dismissed by the majority of the Supreme Court justices. However, three of the justices dissented, stating that the assessment of the appellant’s mental status at the time of the crime was not fully presented to the jurors. Specifically, the forensic psychiatrist brought in as an expert witness testified that the appellant was in a dissociative state, considered an unconscious state, when killing his wife. Furthermore, this was not attributed to a mental disorder, but rather a reaction to severe stress allegedly inflicted on him by his wife. The trial judge, and the concurring appeal judges, stated that although the accused had “periods” of unconsciousness during the murder, the expert witness did not assess the lack of voluntariness required for the defence of automatism. Interestingly, the jurors found that the appellant did not commit the crime voluntarily, thus resulting in a guilty verdict of manslaughter. The problem here is that the trial judge had only informed the jury of insane automatism, which requires the presence of a mental disorder (which the appellant did not have). Had the judge informed the jury about sane automatism, the verdict may have been a full acquittal.

Dissociative A dissociative state can cause impaired consciousness || (Source: Flickr // Vlad Gilcescu)

The lack of proper instruction to the jurors in R v. Stone brings forward a very important issue arising from the increased use of science in court. Namely, a need for comprehensive scientific literacy on the part of the jurists. In this case, the SCC dismissed the appeal partly on the grounds that the steps required for the insane automatism defence were not satisfied, stating: “As I have explained above, automatism is more properly defined as impaired consciousness, rather than unconsciousness. Furthermore, lack of voluntariness, rather than consciousness, is the key legal element of automatism. Accordingly, the trial judge should have concerned himself with assessing whether there was evidence that the appellant experienced a state of impaired consciousness in which he had no voluntary control over his actions rather than whether there was evidence that the appellant was unconscious throughout the commission of the crime.”

Although eloquent in its rhetoric, this reasoning does not reflect the state of the scientific evidence. The judge rests the dismissal of the appeal on a false dichotomy between unconsciousness and impaired consciousness, wherein he posits that the former does not fall in the latter. If the question of whether unconsciousness fell in the realm of impairments of consciousness was put to a neuroscientist, several questions about what was meant about impairment and in what context would follow. Rooted in the context of R v. Stone the unequivocal answer would be a strong affirmative of: “Indeed, Mr. Stone was impaired of consciousness.” The next question for the neuroscientist would be: “If the appellant suffered from impairment of consciousness resulting from a dissociative state, could his actions be considered of his own volition?” The logical answer would be in the negative. The issue appears to boil down to one of mismatched communication. Where jurors, attorneys, and judges would benefit from increased scientific literacy to clarify the issues put before them and assess the true worth of the expert testimony, and where neuroscientist (and experts in general) could use a crash course in legal standards and a disambiguation of legal jargon.

Loïc Welch is an Online Editor of the McGill Journal of Law and Health and a first-year B.C.L./LL.B. student at McGill University’s Faculty of Law. Loïc holds a M.Sc. in Forensic Psychology from Maastricht University (Netherlands), was a research assistant at the Douglas Mental University Institute in Montreal, and interned at the Professional Clinical and Forensic Services, a part of the Institute of Violence, Abuse, and Trauma in San Diego, California.