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Joseph A. Neuberger, Michael P. Bury, and Diana Davison, Neuberger & Partners LLP, Toronto Criminal Lawyers
The proposition that a person may commit a serious act of violence yet be entitled to a complete acquittal is among the more difficult issues that the criminal law is required to accommodate. It arises most acutely where involuntary conduct is said to have been precipitated by the voluntary consumption of an intoxicant. In a recent, currently unreported decision on August 13, 2026, R. v. Baig, the Ontario Court of Justice was asked to determine whether an accused who had committed a violent act against a child while in a cannabis-induced psychosis should be found not criminally responsible on account of temporary mental disorder or acquitted outright. Greene J. concluded that the defence of non-mental disorder automatism had been established and entered acquittals on both charges. The decision provides an instructive occasion to examine the distinction between the two branches of automatism recognised in Canadian law, and the evidentiary demands that attend the more favourable of them.
Automatism is one of the most misunderstood areas of criminal law as a defence and became even more complex with self-induced intoxication.
01 • THE TWO BRANCHES OF AUTOMATISM
Automatism denotes a state of impaired consciousness in which an individual, though physically capable of action, retains no voluntary control over his or her conduct. Because voluntariness forms part of the actus reus of an offence, genuine involuntariness constitutes a complete answer to a criminal charge. The consequences of a successful claim, however, differ markedly according to cause of the involuntary actions.
Where the involuntary conduct is attributable to a “disease of the mind,” the accused is found not criminally responsible under section 16 of the Criminal Code. Such a verdict does not result in an unconditional discharge; rather, it directs the accused into the review board regime — in Ontario, the Ontario Review Board — which is empowered to order detention, a conditional discharge, or supervision, having regard to the safety of the public. Where the involuntary conduct is not the product of a disease of the mind, the accused is entitled to a verdict of non-mental disorder automatism, which operates as a true acquittal unaccompanied by any continuing oversight.
The disposition therefore depends entirely upon the characterisation of the underlying condition, and the burden in this respect rests upon the accused. Since the decision of the Supreme Court of Canada in R. v. Stone, the analysis proceeds from a presumption that automatism is the product of a disease of the mind, which the accused must displace on a balance of probabilities. The reasons of Greene J. in Baig are structured throughout by reference to this framework.
02 • THE STONE FRAMEWORK
Stone prescribes a holistic approach organised around two analytical instruments. The first, the internal cause factor, requires the court to compare the reaction of the accused with that which might be expected of a normal person confronted by the same trigger. A reaction attributable to an internal weakness or predisposition tends toward a finding of a disease of the mind; a reaction that a normal person might also have exhibited in response to an external event tends against such a finding. The second, the continuing danger factor, directs attention to whether the condition is likely to present a recurring danger to the public, a consideration that reflects the protective purpose of the mental disorder regime. Neither factor is determinative in isolation, and the court retains a residual discretion to consider broader policy concerns.
In the specific context of drug-induced states, the governing authority remains R. v. Bouchard-Lebrun, in which the Supreme Court held that a toxic psychosis caused exclusively by voluntary intoxication will not ordinarily constitute a disease of the mind. That decision serves, however, as much as a caution as an aid to the accused: Mr. Bouchard-Lebrun was ultimately convicted, the intoxication route to acquittal being at that time foreclosed in respect of violent offences of general intent. The constitutional position has since altered — the former section 33.1 of the Criminal Code was declared invalid in R. v. Brown (2022) before Parliament enacted a replacement provision — but the essential lesson endures: the characterisation of a drug-induced psychosis as automatism, and its further characterisation as non-mental disorder automatism, cannot be presumed.
03 • THE APPLICATION OF THE TEST IN BAIG
Justice Greene identified the external event said to have precipitated the involuntary conduct, namely the consumption of cannabis, and proceeded to consider each of the Stone factors in turn.
With respect to the internal cause factor, the psychiatric evidence of Dr. Chaimowitz was of central importance. He testified that no underlying condition had caused Mr. Baig to react as he did; that any suggestion his sleep apnea had contributed was purely speculative; and that, individual responses to drugs being unpredictable and drug-specific, he was unable to say how likely others would be to react in a comparable manner. The Crown properly observed that cannabis is a psychoactive substance recognised for its dissociative properties. Notwithstanding that submission, the court found the reaction to be an external and unpredictable event rather than the manifestation of any personal vulnerability. Two features of the record supported that conclusion. First, Mr. Baig had used cannabis intermittently since the age of fifteen without incident, a history consistent with an isolated and aberrant reaction. Second, sustained cross-examination had failed to elicit any specific predisposing feature or disorder, leaving the contrary hypothesis in the realm of speculation. While it might be thought, as a matter of common sense, that an individual who becomes psychotic upon consuming cannabis, where most do not, must possess some vulnerability, Justice Greene was satisfied that this inference had been rebutted on the evidence adduced at trial.
The continuing danger factor, as the court acknowledged, presented the greater difficulty. As R. v. Luedeke establishes, where a genuine risk of recurrence exists, that risk, taken together with the gravity of the conduct in issue, will almost invariably justify the continuation of oversight. Justice Greene did not understate the considerations weighing against the accused: Mr. Baig had committed a very violent act upon a child while in a psychotic state induced by a potent form of cannabis, and the observation of Dr. Chaimowitz that the event, having occurred once, might occur again was no more than a statement of the obvious. The court nevertheless distinguished the governing comparators. In R. v. Ballard, a finding of not criminally responsible had been entered in respect of second-degree murder against a background of a substance use disorder and personality disorders, the psychosis being attributable in part to the accused’s internal condition. Mr. Baig, by contrast, suffered from no substance use disorder and no personality disorder, and had experienced no prior reaction of the kind in question. He had further abstained from cannabis following his arrest and had adopted alternative means of managing his anxiety. Balancing the low likelihood that he would consume cannabis again against the catastrophic consequences should he do so, the court assessed the residual risk as relatively low, and concluded that supervision by the Ontario Review Board was not required for the protection of the public.
The presumption of a disease of the mind having been displaced, the defence of non-mental disorder automatism was made out, and Mr. Baig was found not guilty of both charges.
04 • OBSERVATIONS
Baig is a decision of first instance, and it may not represent the final disposition of the matter; acquittals of this character are apt to attract appellate scrutiny, and the reasons themselves disclose how finely balanced the assessment of continuing danger proved to be. The decision nonetheless warrants attention on several grounds.
This comment is provided for general information only and does not constitute legal advice.
