In its recent decision in R. v. Fontaine,1 the Court of Appeal for Saskatchewan upheld the acquittal of a man who struck his partner in the face immediately after she had violently woken him up. The trial judge found that the action was “an automatic and unthinking response to being startled from sleep in an aggressive fashion,”2 and acquitted the accused due to lack of intent.3 The Court of Appeal characterized his actions as reflexive, and accordingly held that the issue was voluntariness. The Court went on to hold that the approach to involuntariness established by the Supreme Court of Canada in R. v. Stone4 should not be applied when the accused claims to have acted reflexively.5 In rejecting the reverse onus approach from Stone, Chief Justice Richards held that the burden is ordinarily on the Crown to prove voluntariness. However, he stated the Crown can rely on “common sense” to do so.6 The result is that there will still normally be a burden on the accused to raise involuntariness as a defence, albeit on a lower evidentiary threshold.
In Stone, Justice Bastarache held “[t]he law presumes that people act voluntarily,”7 and in cases of automatism, the accused has the burden to prove involuntariness on a balance of probabilities by adducing expert psychiatric evidence.8 In Fontaine, the Crown argued that this approach applies to all claims of involuntariness, including reflexive actions.9 Richards C.J.S. rejected this argument, also implicitly rejecting the idea of a general presumption of voluntariness. He called the reverse onus described in Stone an “exceptional idea,”10 holding “[v]oluntariness 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.”11
The nature of the legal burden established in Stone should rightly be limited to cases of automatism. As Richards C.J.S. noted, the policy reasons underlying the approach in Stone do not apply to reflex actions.12 Nor would psychiatric evidence be particularly helpful in cases where an accused person claims to have acted reflexively.13 While automatism is “well beyond the ordinary experience of a judge or jury,” reflex actions “can ordinarily be meaningfully understood and evaluated by judges and juries without the assistance of expert testimony.”14 Requiring an accused to present expert evidence to establish that he or she acted reflexively would be expensive and unnecessary.
The judgment in Fontaine ignores multiple references to a “presumption of voluntariness” in the majority decision in Stone,15 despite Bastarache J. not explicitly limiting the presumption to cases of automatism. In fact, Richards C.J.S. never refers to a “presumption of voluntariness.” But he appears to have rejected it implicitly, by holding that a reverse onus would be inconsistent with the presumption of innocence and other pre-Stone case law, which held voluntariness is an aspect of the actus reus.16
Arguably, however, permitting the Crown to rely on the aforementioned “common sense notion that the acts of an apparently conscious person are usually voluntary”17 leaves an evidentiary burden on the accused to raise the issue of involuntariness. Since the Crown can rely on “common sense,” a court can probably draw an inference of voluntariness solely from the absence of sufficient evidence to the contrary. In addition, Richards C.J.S. noted that it was “certainly possible to question the strength of the evidentiary basis for the trial judge’s assessment of voluntariness in this case,”18 suggesting that the “air of reality” test from R. v. Cinous19 needs to be met. Accordingly, the accused must raise involuntariness essentially as a defence, grounded in evidence sufficient to potentially create a reasonable doubt as to the voluntariness of his or her actions.
This seems to be the approach in other jurisdictions as well. In the Ontario Court of Appeal decision in R. v. Lewis,20 for example, the Court found the trial judge’s instruction to the jury to be defective for leaving involuntariness with the jury when there was “no basis in the evidence to support a defence of ‘reflex’ or lack of voluntariness.”21 In other words, the Court found there was no air of reality to what it characterized as a defence.
The accused must know the case to meet, and that includes (or ought to include) knowing what burdens he or she will bear at trial. To clarify the nature of the accused’s burden to raise voluntariness, it may be better if involuntariness were explicitly characterized as a defence akin to provocation or mistaken belief in consent. Despite some apparent reluctance from the Court of Appeal for Saskatchewan to refer to non-automatism involuntariness as a defence, it appears to be treating it as one. It might as well call it one.
* JD Candidate (University of Saskatchewan). Any errors are those of the other SLR editors, who should have caught them.
1 2017 SKCA 72, 40 CR (7th) 424 [Fontaine].
2 Ibid at para 15.
4  2 SCR 290, 173 DLR (4th) 66 [Stone].
5 Fontaine, supra note 1 at para 36.
6 Ibid at para 35.
7 Supra note 4 at para 171.
8 Ibid at para 192.
9 Supra note 1 at para 25.
10 Ibid at para 35.
12 Ibid at paras 33-34.
13 Ibid at para 34.
14 Ibid at para 33.
15 Supra note 4 at paras 171, 180, 193.
16 Fontaine, supra note 1 at para 35.
18 Ibid at para 40.
19 2002 SCC 29 at paras 2, 50-57,  2 SCR 3.
20 2014 ONCA 95, 312 CCC (3d) 339.
21 Ibid at para 16.