COURT OF APPEAL
FOR BRITISH COLUMBIA

Citation:

R. v.
  Nield,

2019 BCCA 27

Date: 20190130

Docket: CA44813

Between:

Regina

Respondent

And

Gregory Stanley Nield

Appellant

Before:

The
  Honourable Mr. Justice Frankel

The
  Honourable Madam Justice D. Smith

The
  Honourable Mr. Justice Willcock

On appeal from:  An order of the Supreme Court of British
Columbia,
dated April 8, 2017 (
R. v. Nield
, Penticton Registry 42689).

Counsel for
  the Appellant:

S.J. Tessmer

Counsel for
  the Respondent:

J.R.W. Caldwell

Place and
  Date of Hearing:

Kelowna, British Columbia

November 1, 2018

Place and
  Date of Judgment:

Vancouver, British Columbia

January 30, 2019

Written
  Reasons by:

The
  Honourable Mr. Justice Willcock

Concurred
  in by:

The
  Honourable Mr. Justice Frankel

The
  Honourable Madam Justice D. Smith

Summary:

The appellant was
involuntarily admitted to hospital under the Mental Health Act. During that
hospital admission, the appellant struck his treating psychiatrist and the
psychiatrist sustained serious injuries. The jury at trial found the appellant
guilty of aggravated assault. He appeals this conviction on the basis that the
trial judge erred, during a voir dire and during the trial by jury, in
admitting evidence in breach of his Charter rights and in restricting his
ability to lead evidence to establish the defences of self-defence and
automatism. Held: appeal allowed. The trial judge did not err in how she
conducted the voir dire and the appellant did not establish any errors in the trial
judges decisions on the voir dire. However, the trial judge did err with
regards to evidence that could have gone toward establishing the available
defence of automatism. The judge failed to weigh the costs and benefits of receiving
the treating physicians opinion evidence. Further, the judge erred in not
admitting relevant portions of the hospital record as prima facie proof of the
facts recorded therein, including observations on the patients behaviour and
the administration of drugs, after a witness attested to the records
authenticity.

Reasons for Judgment of the Honourable Mr. Justice
Willcock:

Background

[1]

On the morning of
November 26, 2014, the appellants wife took him to see his family doctor,
Dr. Kyle Stevens. The appellant had been consuming hallucinogenic mushrooms
and his behaviour had progressively worsened over the preceding two days. He
was experiencing auditory hallucinations and was not sleeping; he was
emotionally labile and angry. Dr. Stevens felt the appellant would cause
or suffer significant harm if not hospitalized. Dr. Stevens completed a
medical certificate for involuntary hospital admission (Form 4 prescribed
by the
Mental Health Act
, R.S.B.C. 1996, c. 288

[
MHA
])
certifying that the appellant suffered a disorder that caused serious
impairment and required treatment and that he could not suitably be admitted as
a voluntary patient. Dr. Stevens directed the appellant to the hospital
for further assessment. Section 22(1) of the
Mental Health Act
provides:

The director of a designated
facility may admit a person to the designated facility and detain the person
for up to 48 hours for examination and treatment on receiving one medical
certificate respecting the person completed by a physician in accordance with
subsections (3) and (4).

[2]

In the afternoon, the
appellant attended at Penticton Regional Hospital and was assessed by a
psychiatrist, Dr. Rajeev Sheoran, who completed a second Form 4. Section 22(2)
of the
Mental Health Act
provides:

(2)
On
receipt by the director of a second medical certificate completed by another
physician in accordance with subsections (3) and (5) respecting the patient
admitted under subsection (1), the detention and treatment of that patient may
be continued beyond the 48 hour period referred to in subsection (1).

[3]

A patient may be so
detained for one month after the date of admission.

[4]

During the hospital
admission in this case, Dr. Sheoran prescribed medication, including anti‑psychotics
(Seroquel and Haldol), anti‑anxiolytics (Ativan and Lorazepam), an anti‑convulsant
and antimanic agent (Epival), and a sedative
(
Imovane).
The appellant took the prescribed medications reluctantly.

[5]

On December 5,
2014, the appellant entered an examining room with Dr. Sheoran. Medical
staff nearby heard loud banging sounds. The appellant left the room and was
heard saying I think hes dead. When the staff entered the room, they found Dr. Sheoran
slumped in a chair and bleeding profusely. He had suffered very significant injuries
to his face. His orbital bone was so badly fractured that he required a
prosthetic implant. His right eyeball and optic nerve were damaged. He needed reconstructive
dentistry and orthodontic treatment. He has suffered a traumatic brain injury
and psychological and emotional problems.

[6]

The appellants
conduct after the assault was bizarre. A nurse testified that she
followed the appellant to a
lounge.
She testified
he
was extremely calm
but concerned about his
hand
.
She observed him
asking people
if
they wanted a hug.
A police officer testified
that,
while he was read his
Charter
rights
and, later, when he was put in the cells, the appellant
hummed and repeatedly
introduced
him
se
lf
.

Decision under Appeal

[7]

The appellant was
charged with aggravated assault. He elected a trial by jury. His trial
commenced with a
voir dire
from March 21 to 31, 2017. The jury heard
evidence and submissions from April 1 to 7, 2017, when they returned
a verdict of guilty. Mr. Nield appeals the conviction on the grounds the
trial judge erred in how she addressed certain questions on the
voir dire
and in how she conducted the trial.

Grounds of Appeal

[8]

The appeal is
founded on the grounds the judge erroneously addressed issues on the
voir
dire
by:

a)

failing to consider evidence relating to
the credibility of Dr. Sheoran in relation to whether the appellant was
arbitrarily detained contrary to s. 9 of the
Charter
;

b)

failing to grasp the principle of
fundamental justice that people not be compelled to take medication except as
prescribed by law;

c)

finding the appellant consented to the
taking of medication;

d)

not finding the appellants rights under
s. 10(b) of the
Charter
had been breached because he was not promptly informed of his
right to retain and instruct counsel; and

e)

not finding the
destruction of notes by Dr. Sheoran affected the fairness of the trial,
and not ordering a stay of proceedings pursuant to s. 24 of the
Charter
.

[9]

And, at the trial
itself, by:

a)

not permitting the appellant to
introduce evidence to support self-defence, and lack of
mens rea
;

b)

preventing the appellant from
cross-examining Dr. Sheoran on matters within areas of his expertise;

c)

finding the hospital record was not
admissible; and

d)

preventing questioning of Dr. Sheoran
in several areas relevant to his credibility.

Rulings on the
Voir Dire

[10]

Prior to trial, the
appellant filed a Notice of Application seeking a
voir dire
to determine
whether:

1.      he was arbitrarily detained
contrary to section 9 of the
Charter
;

2.      Dr. Sheoran and those
working with or under Dr. Sheorans instructions violated his right to
liberty and security of the person protected by section 7 of the
Charter
;

3.      his detainees violated his right
to counsel protected by section 10(b) of the
Charter
; and

4.      either
the evidence of the alleged assault on December 5, 2014, should be
excluded from evidence pursuant to section 24(2), or an acquittal or a
Judicial Stay of Proceedings should be entered as a just and appropriate remedy
pursuant to section 24(1) of the
Charter
.

[11]

During the course of
the
voir dire
, the appellants counsel advanced another argument: that
the appellants right to a fair trial was prejudiced by Dr. Sheorans
destruction of documents.

[12]

The trial judge
dismissed the application, for reasons indexed as 2017 BCSC 827. The judges findings
of fact were dispositive of the motion. The appellants principal objection to
his certification was founded upon the allegation Dr. Sheoran certified
him without conducting an assessment. The judge accepted evidence to the
contrary, including Dr. Sheorans testimony and a nurses note in the
Hospital Chart from 15:30 on November 26, 2014, that said Dr. Sheoran
assessed the appellant in room 17 of the hospital. The judge found that in
deciding to certify the appellant, Dr. Sheoran relied on this assessment,
as well as his interview of the appellant and his wife on November 24,
2014, conversations he had with Dr. Stevens, Dr. Stevens records, and
the Form 4 Dr. Stevens completed. The judge said:

[74]      I
conclude that Mr. Nield was correctly and legally certified under the
Act
so as to be properly admitted involuntarily. I also conclude that, throughout
his stay in the Hospital, based on the evidence, Mr. Nields mental health
required his continued certification under s. 22.

[13]

The evidence was
unclear with respect to the timing of Mr. Nields detention and the time
at which he was advised of his rights following detention. Psychiatric Nurse,
Shane Henry, was called as a witness on the
voir dire
by the appellants
counsel. He testified that three forms were completed on November 26:
Form 13 (a notification of patient rights), Form 15 (nomination of a
near relative), and Form 16 (notification to near relative). Mr. Henry
read the notification of patient rights to the appellant and noted no signs of
a mental disorder during their brief encounter. He could not remember the time
when the forms were signed. The trial judge concluded:

[105]    Mr. Henry could not remember
the time when he advised Mr. Nield of his right to contact a lawyer. Mr. Nield
met with Dr. Sheoran at 15:30 hrs on November 26, 2014. After that, Mr. Nield
tried leaving the Hospital, but returned on his own and, at his own request,
went into room 16, the seclusion room. Given the process in the Hospital for
certification, it was sometime after 16:30 hrs that Mr. Henry advised Mr. Nield
of his rights in accordance with s. 10(b) of the Charter.

[106]    In Mr. Nields case, there was
no risk of self-incrimination. Mr. Nield was entitled to know that he
could contact counsel to assist him in regaining his liberty. It is not
disputed that, during his stay in the psychiatric unit of the Hospital, Mr. Nield
was in contact with counsel.

[107]    In
R. v. Suberu
,
[2009] 2 S.C.R 460, the Supreme Court of Canada defined without delay as
follows:

[41]      A
situation of vulnerability relative to the state is created at the outset of a
detention. Thus, the concerns about self-incrimination and the interference
with liberty that s. 10(b) seeks to address are present as soon as a
detention is effected. In order to protect against the risk of
self-incrimination that results from the individuals being deprived of their
liberty by the state, and in order to assist them in regaining their liberty,
it is only logical that the phrase "without delay" must be
interpreted as "immediately". If the s. 10(b) right to counsel
is to serve its intended purpose to mitigate the legal disadvantage and legal
jeopardy faced by detainees, and to assist them in regaining their liberty, the
police must immediately inform them of the right to counsel as soon as the
detention arises.

[108]    I
conclude that Mr. Nields s. 10(b) rights were affected on November
26, 2014, after his certification under the Act. I also conclude that he
understood his rights without delay, keeping in mind that Mr. Nield was
not accused of any crime and his care was of concern before being informed of
his s. 10(b) rights. Moreover, I conclude Mr. Nield understood his
rights as given to him by Mr. Henry.

[14]

The judge then
considered the appellants concern about Dr. Sheoran destroying documents.
Dr. Sheoran had documents in a folder at the preliminary hearing, which he
described as personal scribbles and which included notes for his victim
impact statement. The judge found that these documents were destroyed over time
when Dr. Sheoran no longer had any use for them and before the appellant
brought an application for their production. The judge noted that no one had
asked to see the contents of the folder or had applied to obtain the notes at
the preliminary hearing. New counsel, subsequently retained by the appellant,
made an application for Dr. Sheorans handwritten notes in January 2017, a
little over two years after the preliminary hearing. He did not proceed with
the application after, by consent, the remaining notes Dr. Sheoran had in his
possession were produced at trial and marked as Exhibit 5 on the
voir
dire
; he was apparently satisfied. The judge held:

[134]    Mr. Nield
has not demonstrated on a balance of probabilities that the documents Dr. Sheoran
had at the preliminary hearing would assist Mr. Nield in a material way,
which would deprive him of an opportunity to make full answer and defence.

[15]

The judge found the
other criticisms of Dr. Sheoran were unwarranted. She rejected the allegation
that he had much later written self-serving notes of his November 24 and 26
assessments as follows:

[87]      I
conclude that Dr. Sheoran made the progress notes of November 24 and 26,
2014 on the dates noted. The rough notes made on November 24, 2014 were
just that, rough notes, and were not intended to be placed in Mr. Nields
hospital chart. I also conclude that the progress notes described above, and
other material from Mr. Nields hospital chart, were taken out by Dr. Sheoran
to prepare the consultation reports that he intended to do after his meeting
with Mr. Nield. However, he was unable to do this as a result of the
assault.

[16]

She addressed the allegation
that Dr. Sheoran had wrongly failed to prepare contemporaneous
consultation reports as follows:

[88]      Dr. Sheoran
did delay in the preparation of the consultation report. However, the question
of whether it should have been prepared does not affect Mr. Nields
Charter
rights.

Conduct of the Trial

Questions Regarding Involuntary
Admission to the Hospital

[17]

At the conclusion of
the
voir dire
, the appellants counsel advised the judge that, regardless
of her ruling on the
voir dire
, he would ask the jury to conclude the
appellant had been arbitrarily and unlawfully detained. He stated: I intend to
prove that this doctor did not examine this man before he certified him and then
ask the jury to come to a conclusion that this was unlawful. He intended to
argue that the appellant struck Dr. Sheoran in self-defence in an effort
to resist his detention and the administration of drugs he considered to be
harmful.

[18]

Having ruled on the
question of the legality of the appellants involuntary detention, the judge
regarded that question as settled and no longer open to the appellant. As a
result, the judge considered the record of the hospital admission from November 26
to December 5, 2014 to be of limited relevance and she narrowly
circumscribed the evidence the appellants counsel was permitted to adduce from
the witnesses called in the Crowns case.

[19]

The Crowns first
witness was Nicole Reichenbach, a registered psychiatric nurse who had attended
to the appellant in the hospital. When the appellants counsel sought to ask Ms. Reichenbach
whether the appellant had been involuntarily admitted to the hospital, Crown
counsel objected to the question as irrelevant. The appellants counsel said
the question was relevant to the appellants subjective view that he was being
illegally held and treated with dangerous medications. The judge held the jury
should know why the appellant was in the hospital so the appellant could ask: Was
Mr. Nield there as an involuntary patient as a result of being certified
by two doctors, Dr. Sheoran and Stevens, pursuant to the
Mental

Health
Act
?

Available Defences and Opinion
Evidence

[20]

During the
discussions of Ms. Reichenbachs evidence, the appellants counsel
informed the judge he intended to introduce the hospital record into evidence
as a record kept in the ordinary course of business, in the manner and for the
purpose established in
Ares v. Venner
, [1970] S.C.R. 608. Crown counsel
objected to the introduction of the entire hospital record as it contained much
irrelevant evidence and because she was concerned about the Crowns positive
obligation to refrain from raising information about a potential defence of not
criminally responsible (referring to
R. v. Swain
, [1991] 1
S.C.R. 933)
.

[21]

When asked if he
would advance a defence of not criminally responsible on account of mental
disorder, the appellants
counsel
said that while he might rely on that defence, he would certainly argue that
the appellants actions were involuntary and, in the alternative, he would seek
to establish that the appellant had acted in self-defence. Crown counsel advised
the court the Crown took the position the involuntary defence amounted to a
defence of non‑insane automatism that could only be made out with expert
opinion evidence.

[22]

The appellants counsel
informed the judge he intended to put the hospital record to Dr. Sheoran
in cross-examination to establish the appellant was affected by a mental
illness and to determine whether it was caused by the medication prescribed for
him. The following exchange then occurred:

THE COURT:
 are you bringing expert evidence?

MR. TESSMER
[defence counsel]: No, I intend to rely on this big volume that, hopefully, Dr. Sheoran
has looked at, on
Compendium of Pharmaceuticals and Specialties
.

THE COURT:
Well, thats not going to happen.

MR. TESSMER:
What do you mean?

THE COURT:
We are going to have Dr. Sheoran be the expert evidence, suddenly?

MR. TESSMER:
He could testify about side effects from -- from medicine.

THE COURT:
Yeah, but what has that got to do with the issues?

MR. TESSMER:
The side effects caused the --

THE COURT:
Okay, I am going to rule --

MR. TESSMER:
-- the act.

THE COURT:
-- thus far, it may change, you may change, you can -- I am going to rule that
you can take this witness [Nicole Reichenbach] through her notes, and her notes
only. And you also were going to ask the question about him being involuntary
patient as a result of certification by the two doctors that have been named,
pursuant to
Mental Health Act
. All right?

MR. TESSMER:
Just for the record, I am not entitled to ask her other questions about things
that are recorded in the charts, about adverse reactions to the medicine that
occurred to my client, unless she personally witnessed them?

THE COURT: I have decided you can ask her about her notes.
And [if,] for some reason or other, this case somehow changes ... [w]e may have
to recall this witness, but thats my ruling.

[23]

The effect of this
ruling that the hospital record could not be admitted as evidence and the
judges view that witnesses could not be asked to express opinions in
cross-examination became clear during the cross-examination of the first
witness. The appellants counsel was not permitted to ask the nurse whether the
appellant was prescribed heavy antipsychotic drugs while in hospital. He was
not permitted to ask the nurse whether, while conducting an exam, she formed
the opinion that the appellants mental status was not that bad. He was not
permitted to ask what the nurse knew about Seroquel. He was not permitted to
ask whether the appellants mental status deteriorated during his hospital
stay.

[24]

The ruling on each
of these issues was made following an objection by Crown counsel and without
hearing submissions from the appellants counsel. The following excerpt is
typical of how the judge addressed each objection:

Q.        You
were still his nurse at 1:10 that afternoon?

A.         Yes.

Q.        On
the 29th of November?

A.         Yes.

Q.        And
he approached you, and he says, I am losing touch with reality.

A.         Yes.

Q.        And
he was tearful, and irritable in conversation.

A.         Yes.

Q.        And
restless.

A.         Yes.

Q.        So
-- and then he -- he again said, Im really paranoid right now, I just cant
explain it.

A.         Yes.

Q.        So,
and in your -- there may be an objection, so dont answer until -- in your
opinion, he was getting worse during his stay?

MS. FIRESTONE
[Crown counsel]:  Objection. This is not a witness who can provide opinion
evidence. She hasnt been qualified to give opinion evidence before the court.

THE COURT:  For those reasons, Mr. Tessmer, you cant
ask her the question.

Entering Hospital Record into
Evidence

[25]

At the conclusion of
the cross-examination of the first witness, the appellants counsel again
addressed the question of admissibility of the hospital record. Crown counsel objected
to the introduction of the whole record on the ground doing so would further
muddy the waters by putting a voluminous record in the hands of the jury
without detailed instructions on how they may use it. The appellants counsel
again advised the court it was his intention to argue the appellant had acted
in self-defence and it was important for the jury to have a complete record of
circumstances leading up to the assault. He said he was not attacking the
ruling on the
voir dire
that the appellant had been lawfully certified
but he wished to put evidence before the jury going to the appellants perception
of his circumstances. He added that self-defence has to have an objective
component and he wished to introduce evidence of the facts that objectively
supported the appellants belief he was threatened. He concluded his
submissions by saying:

I
would like, at this point, to put these in so that I  dont have to call each
nurse to say what her observations are, thats what
Ares v. Venner
says,
and then I can properly, when Dr. Sheoran is on the witness stand, I can
take him through  the orders that he made, the drugs that were given, at the time
they gave it to him, and the side effects of these various drugs. So thats
what I need to do, in order to establish my clients case.

[26]

The trial judge
held, in part, as follows:

This
case before this jury is not a civil case. The issue is not whether Mr. Nield,
the accused, received proper care while under the care of Dr. Sheoran at
the Penticton Regional Hospital, and as a result, I am not going to allow
Exhibit 3 or the parts of Exhibit 3, that the defendant would like to
go in, wholesale.

[27]

The following
exchange ensued:

MR. TESSMER:
What about the nurses notes, can I put the nurses notes in, My Lady?

THE COURT:
Weve heard the nurse, this nurses notes, weve heard this one.

MR. TESSMER:
I want to put all the nurses notes in.

THE COURT:
No, they are not going in.

MR. TESSMER:
Their observations.

THE COURT:
They are not going in.

MR. TESSMER:
Because I need to show that my clients condition deteriorated while under the
care of Dr. Sheoran, and he went towards a psychotic state, and  thats
the only way I can get it, is through the nurses notes, or calling each
individual nurse.  Which I dont even know the names of the nurses.

THE COURT: Okay. No, you are not getting those in.

[28]

Dr. Sheoran was
the Crowns second witness. When questions arose with respect to the
appropriate scope of the cross-examination of Dr. Sheoran the following
exchange occurred:

THE COURT:
Ares v. Venner
was a case about standard of care

and
negligence, but thats not what this trial is

about. This trial is about
an assault, its not

about whether

Mr. Nield or anybody
else thinks he got

good care or not.

MR. TESSMER:
No, this is about the deterioration of my clients health, under this mans
care, which caused the actions on December the 5th.

THE COURT:
Youre never going to be able to prove that.

MR. TESSMER:
Well, because you are not letting me ask any other questions.

THE COURT:
But what proof are you going to have? Are you going to have an expert evidence
 say that this mans care deteriorated? ...

MR. TESSMER:
He testified to that, weve got evidence that his care deter  its in the --
in his testimony from the voir dire, about his care deteriorating over the time
he was with him.  And every time his health deteriorated, the man upped the
drugs, and the drugs have side effects which you say --

THE COURT:
But  -- you are not going to bring the evidence before this court.  Youre
not bringing evidence before this court about his health deteriorating, the
drugs he took, all of those things. The jury cannot make any decision about
that.

MR. TESSMER:
Well, thats my defence, so --

THE COURT:
Well, you are not going to be able to ask the questions.

MR. TESSMER: I will have no more questions then, in
this trial. Thank you.

[29]

The appellants counsel
rethought this rash decision and continued his cross-examination of Dr. Sheoran
the following day. Before it continued, however, the appellants counsel
renewed his effort to have the hospital record admitted:

My Lady, if I
could get you to reconsider, that what is in issue in this case is whether my
client was unlawfully kept against his will and he was entitled to defend
himself from the -- of the giving of the drugs against his wishes and his
unlawful confinement, contrary to the provisions of the
Criminal Code
.
This is not a
Charter
issue.

So I want to put
in what happened during the course of the time when he was in the hospital. The
evidence that led to him being in the hospital and the records at the hospital
are not only relevant to the things that happened to him while he was in the
hospital, theyre also relevant to the fact that under the doctors care, his
condition got worse. And he was given drugs and his condition got worse and
worse and worse.

So this evidence
is also relevant to his state of mind at the time of the offence, as well as
self-defence, and whether or not he had a mental disorder at the time on
December the 5th.

So
its in the -- the nurses observations, the time the drugs were given, all of
these things are in the hospital chart. In my respectful submission, the
defence has to be able to put that in, in order to establish our defence.

[30]

The judge perceived
this as an attempt by the appellants counsel to show that the appellant was
unlawfully confined in the hospital. She held that she had already determined
that Mr. Nield was lawfully detained under the
MHA
and that this
was final. The appellants counsel asserted that the judge was impermissibly
impeding on the jurys role as the trier of fact by blocking evidence from
coming before the jury.

[31]

In the course of
continuing cross-examination, the appellants counsel was asking Dr. Sheoran
about increasing doses of Epival and a prescription for Haldol on November 30
when the Crown objected to the questions as irrelevant. The jury was excused
and the following exchange occurred:

THE COURT:
We are not here to determine whether Mr. Nields health got better, got
worse, whether he had bad reactions to some drugs, all of those things. Thats
not what were here about.

MR. TESSMER:
No, I say we are, My Lady.

THE COURT:
No, were not.

MR. TESSMER:
Thats my defence.

THE COURT:
Well, thats not --

MR. TESSMER:
My defence is that he was given these drugs contrary to his wishes. They made
his condition worse until he became psychotic or something like that. -- on
December the 5th. I need to put in his medical -- the history of the drugs he
was given so this jury understands the state of mind of this man on December
the 5th.

THE COURT:
You will have to have expert evidence to prove that state of mind.

MR. TESSMER:
Well, hes an expert right there.

THE COURT:
And secondly  thats not what were here about. We are not here about whether
the standard of care, whether it was good, bad, and indifferent. Were not here
to determine the effects of these drugs on this man. Thats not what were here
--  were here about whether this man assaulted Dr. Sheoran or not. So
youre going to stop --

MR. TESSMER:
And whether or not he was -- and whether or not he was of sound mind. Remember
hes in the mental institute there because they say he had a disease of the
mind. He had a mental disorder, My Lady.

THE COURT:
Well, thats another --

MR. TESSMER:
Were not talking about a healthy individual.

THE COURT:
-- thats another topic, isnt it, that you would be raising, I suppose, as a
defence as to intent and --

MR. TESSMER:
And he knows better than anybody about what drugs he was given.

THE COURT:
No, hes not going to be giving an opinion. The witness who was assaulted is
going to give an opinion?

MR. TESSMER:
I want him to --

THE COURT: No, thats not going to happen and Im telling
you to stop, stop now. The Crown has been -- allowed certain questions. Ive
said to you certain questions youre to ask and you go over the line every
time.

[32]

The result of this
exchange and the rulings made was apparent in the concluding portion of the
cross-examination of Dr. Sheoran. The appellants counsel was not
permitted to ask him:

a)

What is akathisia?

b)

Did the appellant have a severe reaction
to Haldol?

c)

What were the side effects of the drugs
prescribed?

d)

Did the appellants condition
deteriorate during the course of his hospital stay?

e)

How was the appellant certified and was
he properly certified?

f)

Are some patients hypersensitive to the
medications that were prescribed for the appellant?

[33]

While the
appellants condition and treatment were canvassed with other witnesses,
particularly his mother and father, the appellant did not adduce any further
opinion evidence and did not make any further requests to file medical records.

Jury Instructions

[34]

In the written
version of the charge to the jury, one of the elements of the offence of
aggravated assault, the intentional application of force, was addressed as
follows:

[99]
Did Mr. Nield
intent
i
onally apply the force?

[1
00]
The
physical
contact must be
intentional
,
as opposed to accidenta
l.
To decide whether
Mr.
Nield
applied force
intentionally,
you will have
to consider all the evidence,
including
anything
said or done
in the
c
i
rcumstances.

[101]    The
evidence,
that
is
the
injuries
that
Dr.
Sheoran suffered, supports
that
Mr.
Nield
applied
force
to
Dr. Sheoran. Witnesses
heard loud banging.

[102]
Unless you are satisfied beyond a
reasonable
doubt that Mr. Nield intentionally
applied
force to
Rajeev
Sheoran
,
you
must
find
Mr. Nield not
guilty
.

Your
deliberations
would
be over.

[103]
I
f you are satisfied beyond a
reasonable doubt
that
Mr. Nield
intentionally
applied force
to
Rajeev
Sheoran
,
you
must
go
on
to the next
question
.

[132]    The
defence says that Mr. Nield was unlawfully confined and forced to take
drugs
against his will by Rajeev-Sheoran.
The defence further says that Mr.
Nield
tried to go through lawful means
to
extricate himself
,
but
was prevented from doing so by the actions of Dr. Sheoran in failing to
properly chart a diagnosis and treatment plan
,
and further by
removing
and or falsifying documents from Mr.
Nield
s Hospital Health Records.
The defence
says that Mr.
Nield
s actions on December
5
were a direct
result
of the
unlawful
actions of Rajeev Sheoran,
in detaining
him
and requiring
him to take medication against his will.

[133]    The
defence says
that
if Mr. Nield

s actions on December 5,
2014 were intentional, then he was entitled to defend himself and
,
if they were
not intentional
,
because of the
i
ngestion
of drugs, he cannot be
convicted of this offence
.
Either
way, Mr. Nield is entitled to an acquittal.

[134]
Ms.
Tessmer
told you
that if
you think he is totally
out of line, then
I
can
tell you that. There
is no
evidence to substantiate any of
the
allegations set out in the theory of the defence.

[135]    Evidence has
not
been
hidden from
you. You will recall I told you I was
the
judge of the law.
That
is what
I
do when I rule on whether
evidence is admissible or

not.

[35]

After receiving
those instructions, the jury returned with questions for the judge. With
respect to the words in para. 133 of the charge: if they were not
intentional, because of the ingestion of drugs, he cannot be convicted of this offence,
they asked:

Is
this true or just the defences opinion?

[36]

With respect to the
words in paras. 134‑135 of the charge: There is no evidence to
substantiate any of the allegations set out in the theory of the defence.
Evidence has not been hidden from you, they asked:

we were given no information about the nature of the drugs the defendant was
being given. Surely that would be evidence to support the non intention defence.

[37]

The jury correctly
observed that there was no evidence before them of the effect of the ingestion
of the drugs prescribed for the appellant during his hospital stay. That was,
in part, because the appellants counsel had not adduced any expert opinion
evidence and, in part, because the trial judge had precluded the appellants
counsel from adducing opinion evidence from the victim of the assault, Dr. Sheoran
,
in cross-examination.

[38]

The judge responded
to those questions as follows:

If Mr. Nield
had ingested prescribed medication which affected his intention to commit the
crime, he could not be convicted. However, there is no evidence as to what
prescribed drugs he consumed and the effect those drugs would have had on him
as to his intention to commit the assault.

The
evidence you have before you is all the evidence you will receive in this
trial.

[39]

The jury deliberated
briefly before finding the appellant guilty of aggravated assault.

Analysis

[40]

In my view, the
appellant has not established any error in how the judge conducted the
voir
dire
or the rulings the judge made at its conclusion.

[41]

There were, however,
errors in how the trial was conducted. The scope and effect of those errors requires
our careful consideration.

The
Voir Dire

[42]

I can see no basis upon which to interfere with the judges
conclusion that the appellant was correctly and legally certified. There was
evidence upon which it was open to her to find that Dr. Sheoran had complied
with the provisions of the
MHA
. There was evidence upon which she could
find the appellant had been advised of his right to counsel upon being
detained.

[43]

The appellant submits the trial judge did not determine when
detention commenced. He argues he was detained when he attended the
hospital pursuant to the first Form 4 completed by Dr. Stevens, long
before he met Nurse Henry. However, the evidence was equivocal with respect to
when the appellant was, in fact, detained. He attended the hospital in the
first instance at the direction of Dr. Stevens but on his own initiative
and the judge found as a fact that he left the hospital on his own after his
assessment by Dr. Sheoran, returning to wait in the seclusion room at his
request before meeting Nurse Henry and being advised he was detained. In my
view, it is not open to us to say the trial judge erred in concluding that Mr. Nield
was informed of his rights without delay after his detention. The appellant
cannot establish a delay on the evidence in the record.

[44]

Further, the
appellant has not established any error undermining the trial judges conclusion
that the appellants criticism of Dr. Sheoran was unwarranted.

[45]

Without any substantial
basis for challenging the findings of fact upon which the trial judges
conclusions were based, the appellants counsel argued on appeal that the wrong
person was tried in this case. He continued to impugn the conduct of Dr. Sheoran.
In my view, that criticism was unfounded and misdirected. Even if the appellant
had established procedural error in the way in which he was certified, there is
no doubt, on the evidence, that he was affected by mental illness that required
treatment. That opinion was shared by Dr. Stevens, Dr. Sheoran, and subsequent
treating health professionals. His hospitalization was not shown to have been a
result of a diagnostic mistake or malice.

[46]

Last, in my view, there was no authority for the questionable
proposition that the independent evidence of witnesses to the assault in this
case should be excluded, by operation of s. 24(2) of the
Charter
,
as evidence
obtained in a manner that infringed or denied any
rights or freedoms guaranteed by the
Charter
. In particular, I accept
the Crowns argument in relation to the alleged breach of s. 10(b) of the
Charter
,
founded upon
R. v. Goldhart
, [1996] 2 S.C.R. 463, that s. 24(2) should not be invoked
in relation to an alleged breach that has such a tenuous
temporal and causal link to impugned evidence.

[47]

As the grounds of appeal relating to the
voir dire
are without
merit, I would not accede to them.

Conduct of the Trial

[48]

The appellant says the
trial judge erred in not permitting him to introduce evidence that went toward
establishing self-defence and lack of
mens rea
, in preventing him
from cross-examining Dr. Sheoran on matters within areas of his expertise,
and in finding that the hospital record was not admissible. These rulings
effectively prevented him from advancing his defences, principally the defence
that the appellant was incapable of forming the requisite intent.

[49]

The appellant says he
should have been permitted to question all witnesses about the side effects of
the prescribed drugs. He argues, relying upon
Erven v. The Queen
, [1979] 1
S.C.R. 926 at 931, that the
voir dire
and trial have distinct
functions. The former is to address admissibility of evidence whereas the
latter is to determine the merits of the case on the basis of admissible
evidence. He says in this case the issue on the
voir dire
was whether
the evidence of the assault should be excluded or the proceedings should be
stayed as a result of a
Charter
breach. He says the court, having
rejected the application to exclude the evidence of the assault and the
argument that his
Charter
rights had been infringed, should nevertheless
have permitted him to introduce evidence relating to the prescription of
medication and lack of
mens rea
due to the ingestion of the very drugs
prescribed by Dr. Sheoran.

[50]

The Crown says the
trial judge properly restricted the evidence admitted at trial.

Exclusion of Evidence for
Establishing Self-Defence

[51]

First, the Crown
says there was no air of reality to the claim of self-defence. It argues, citing
R. v. Mathisen
, 2008 ONCA 747, that a defence should not be
put to a jury unless it meets the air of reality test and is sound in law (para. 47).
The Crown argues the appellant faced no threat other than detention in hospital
and the force he used to address that perceived threat was grossly
disproportionate. The Crown says, in the event the trial judge did err in
restricting evidence with respect to self-defence, a new trial is not required
as there is no reasonable possibility that a jury would have returned a
different verdict had it been asked to consider self-defence:
R. v. Khan
,
2001 SCC 86 at para. 28.

[52]

I would not accede
to the argument that the rulings at trial precluded the appellant from arguing self-defence.
Despite the ruling on the
voir dire
that the appellant had been lawfully
certified and involuntarily admitted to hospital, the appellant could still
seek to establish that he thought that he had been wrongly admitted to
hospital, that he was being administered noxious substances, and that Dr. Sheoran
was an obstacle to his release from hospital.

[53]

The trial judge
permitted the appellants counsel to ask questions relevant to the appellants
subjective view that he was being illegally held and treated with dangerous
medications. The impugned rulings did not preclude the appellant from leading
evidence that he had exercised proportionate force to address what he regarded
as an imminent threat.

[54]

I should note,
however, that in addressing the question whether there was an
air of reality
to this defence the Crown is not meeting the argument made by the appellant.
The appellant says he was not permitted to lead evidence. It is not an answer
to that argument to say there would have been no air of reality to the proposed
defence had the evidence been led. The answer is, rather, that the excluded
evidence did not speak to this issue.

[55]

Insofar as this
defence is concerned, in my view, none of the evidence excluded at trial would
have permitted the appellant to establish that the force he used to attack Dr. Sheoran
was either necessary or proportionate in the circumstances.

[56]

There is, however, a
more substantial concern: whether the rulings wrongly precluded the appellant
from advancing a defence of mental disorder automatism or non‑mental
disorder automatism. There are two components to that question: first, whether
the judge erred in law by refusing to permit the appellant to adduce the
opinion evidence of Dr. Sheoran or by refusing to admit the hospital
record; and, if so, then whether the appellant was prevented from advancing a
viable defence.

Exclusion of Dr. Sheorans
Opinion Evidence

[57]

The Crown says the
judge did not err in precluding cross-examination of Dr. Sheoran on
matters within his expertise or the appellants medications as they related to
mens rea
.
The Crown says the opinion evidence of Dr. Sheoran was rightly excluded
from evidence because Dr. Sheoran was not properly qualified as an expert
witness and that burden falls upon the party seeking to elicit the opinion.
Further, because he was testifying as a complainant in a criminal matter and
was the victim of a violent attack, Dr. Sheoran was not an impartial
witness and, therefore, did not meet one of the essential criteria to be
qualified as an expert witness.

[58]

In support of these
propositions, the Crown relies upon
White Burgess Langille Inman v. Abbott
and Haliburton Co
., 2015 SCC 23 [
White
], and
J.P. v. British
Columbia (Children and Family Development),
2017 BCCA 308, and the
following passage from the judgment of Watt J.A. in
R. v. Vassel
,
2018 ONCA 721:

[91]      It
is the responsibility of the party who seeks to elicit expert opinion evidence
from a proposed (or actual) witness to qualify the witness as an expert in the
subject-matter about which the opinion is to be elicited.

[59]

Dr. Sheoran was
not formally qualified as an expert witness. However, he is qualified to
express the opinions the appellant sought to adduce. On the
voir dire
,
he was asked by Crown counsel to express opinions on the effects of the drugs
prescribed for the appellant and did so without objection or reservation. He
testified that he prescribed a number of drugs to the appellant, including
Seroquel, Ativan and Zopiclone. He described the indications for these drugs
and their potential side effects. He described Seroquel as an antipsychotic
medication with good sedative and anxiolytic properties. Its side effects
include sedation, gastric symptoms, extrapyramidal side effects (motor
disorders), and reduction in blood pressure causing feelings of dizziness or light-headedness.
He noted [p]eople can have some slowing or slowed-down feeling and that the long-term
effects of Seroquel include changes in cholesterol levels, skin reactions, and
elevation of liver enzymes.

[60]

Dr. Sheoran described
Ativan as a benzodiazepine, which is classified as [a]
sedative/hypnotic/anxiolytic. It is used to manage states of anxiety or
agitation. It can also cause a feeling of dizziness or light-headedness. He
testified that Ativan can cause confusion, especially in people with severe
underlying physical illness or the elderly. There are idiosyncratic reactions, which
are alternative effects to what is expected, particularly in very young people
and teenagers. Some people may become more agitated or more active, more
aroused rather than sedated.

[61]

Dr. Sheoran testified
that Zopiclone was prescribed to help the appellant sleep, and described it as a
selective hypnotic that can cause confusion or altered cognition in people who
are elderly. It is very cautiously prescribed.

[62]

When the appellants
counsel began to ask Dr. Sheoran about the manner in which a patient
presenting with a history of hallucinogenic mushroom consumption should be
treated, the Crown objected to the witness being examined on the standard of
care and the judge sustained that objection. However, he was asked about the
symptoms of mushroom intoxication and answered the question. He was asked about
literature with respect to the side effects of medication prescribed for this
patient and answered those questions. He was cross-examined in detail with
respect to the symptoms exhibited while the appellant was a patient in the
hospital. He was examined in detail on the entries in the DSM‑V manual.

[63]

The trial judges
finding that the appellant had been lawfully certified relied, in part, upon
acceptance of Dr. Sheorans opinion that the appellant met the criteria
set out in the
MHA
for involuntary admission to hospital. While this is
not entirely a question of expert opinion, since the admitting doctors opinion
of whether a patient needed to be certified and involuntarily admitted goes
towards the factual finding of whether it was done properly, accepting his
evidence to this effect must mean that the judge considered Dr. Sheoran to
have appropriate expertise.

[64]

The same, relatively
casual, approach was taken to opinion evidence adduced from other witnesses in
the
voir dire
. Dr. Stevens, the appellants family doctor,
testified in chief and on cross-examination with respect to the side effects
and adverse reactions to the drugs prescribed for the appellant. He agreed with
the suggestion put to him that Seroquel can create a sense of inner tension and
torment that feels like agitated depression. He said this is problematic for
patients and doctors because many do not realize this is a drug-induced state.

[65]

Elizabeth Scott, the
patient care coordinator in the psychiatric ward who authorized the treatment
administered to the appellant, testified that the appellant received Lorazepam
(to treat agitation); Epival (a mood stabilizer); Haldol (to treat agitation
and psychosis); Seroquel, Quetiapin and Ativan (anti‑psychotics); and Zopiclone
(to promote sleep). She testified to the times and doses of some of the drugs
administered and to the administration of Cogentin, an antidote to the
neuromuscular problems caused by Haldol.

[66]

While the issues on
the
voir dire
were distinct, that does not account for the reception of
the expert opinion evidence of some witnesses on the
voir dire
and its
exclusion at trial.

[67]

In my view, the
trial judge did not adequately consider the grounds for excluding the opinion
evidence of Dr. Sheoran.

[68]

The trial judges
view that Dr. Sheoran should not express an opinion at trial appears to be
founded upon partiality rather than a lack of expertise or formal qualification.
Her decision cannot be based on inadequate notice because a trial judge
cannot disallow expert
evidence simply because the defence gives inadequate notice of the intention to
adduce such evidence:
R. v. Horan
,
2008 ONCA 589.

[69]

In
White
, the
Supreme Court considered how a trial judge should weigh an experts lack of
independence and impartiality. The question in that case was described, at para. 13,
as how the law of evidence should best respond to concerns about impartiality
of experts. The Court held that a lack of independence and impartiality goes
both to the admissibility of the evidence and to the weight to be given to the
evidence, if admitted. The admissibility of expert evidence should be
scrutinized at the time it is proffered but exclusion at the threshold stage
should only occur in very clear cases. The Court held, at para. 49,
anything less than clear unwillingness or inability [to provide the court with
fair, objective and non‑partisan evidence] should not lead to exclusion,
but be taken into account in the overall weighing of costs and benefits of
receiving the evidence.

[70]

The Court,
at para. 36, reaffirmed what it had said in
Mouvement laïque québécois
v. Saguenay (City)
, 2015 SCC 16
at para. 106
:

It is well established that an
expert
s
opinion
must be
independent
, impartial and objective, and given with a
view to providing assistance to the decision maker... However, these factors
generally have an impact on the probative value of the
expert
s
opinion
and are not always insurmountable barriers
to the admissibility of his or her testimony. Nor do they necessarily
disqualify the
expert
... For
expert
testimony to be inadmissible, more than a simple appearance of bias is
necessary. The question is not whether a reasonable person would consider that
the
expert
is not
independent
.
Rather,
what must be determined is whether the
expert
s
lack of
independence
renders him or her incapable of
giving an impartial
opinion
in the specific
circumstances of the case
...

[Emphasis added, citations omitted.]

[71]

In my view, in the
specific circumstances of this case, Dr. Sheorans personal interests might
not have precluded him from giving an impartial opinion in response to the appellants
questions. Because Dr. Sheoran might be biased
against
the accused,
the appellants counsel might have properly objected on the grounds of lack of
impartiality or independence if the Crown had sought to elicit an opinion from Dr. Sheoran.
However, in this case, the appellant was seeking to adduce Dr. Sheorans
evidence in cross-examination and, by doing so, indicated he was prepared to accept
Dr. Sheorans opinion with respect to the appellants capacity to form the
requisite general intent. The judge should have taken this into account in the
overall weighing of the costs and benefits of receiving the evidence. That is
particularly so where the trial judge had already heard Dr. Sheoran, in
the
voir dire
, express detailed and apparently impartial descriptions of
the prescribed medications and their anticipated effects.

[72]

The judge should
have borne in mind
that the accuseds right to cross-examine witnesses without significant or
unwarranted constraint is an essential component of the right to make full
answer and defence protected by the
Charter
and interpreted in a broad
and generous manner befitting its constitutional status (The Honourable Mr. Justice
S. Casey Hill, David M. Tanovich, & Louis P. Strezos, eds,
McWilliams
Canadian Criminal Evidence
, loose-leaf, 5th ed (Toronto: Thomson
Reuters Canada Limited, 2017), 21:30.10, quoting
R. v. Potvin
(1989) 47 C.C.C. (3d) 289 (S.C.C.)).

[73]

This
broad and generous approach entails that a witness called by a party to
testify on a limited aspect of the case, perhaps merely for the purpose of
producing a document, can be cross-examined by the opposing party on any
relevant matter (McWilliams, 21:30.30). Limits on cross-examination are
generally applications of the ordinary rules of evidence, in particular the
weighing of the probative value against the prejudicial effect. However, due to
the fundamental tenet of our judicial system that an innocent person must not
be convicted  the prejudice must substantially outweigh the value of the
evidence before a judge can exclude evidence relevant to a defence, including cross-examination
by the accused (
R. v. Shearing
, 2002 SCC 58 at para. 76,
quoting
R. v. Seaboyer; R. v. Gayme
,
[1991] 2 S.C.R. 577 at 611).

[74]

While the trial
judge was wrestling with management of a jury trial, in which the defence
advanced multiple difficult to reconcile and speculative defences, excluding Dr. Sheorans
opinion evidence cannot, in my view, be justified as a measure properly taken
with a view toward efficient management of the trial. As the Ontario Court of
Appeal held in
Horan
:

[
33
]       In
R. v. Felderhof
(2003), 180
C.C.C. (3d) 498 (Ont. C.A.) at para. 57, this court recognized a broad
trial management power to promote the efficient use of court time and ensure
that all parties are treated fairly. However, excluding relevant and otherwise
admissible evidence is an unusual exercise of the trial management power and,
in my view, it should be plain and obvious that the circumstances require that
remedy and that the usual remedies, such as a short adjournment, would not
suffice.

[75]

Given Dr. Sheorans
apparent expertise, the fact he cannot have been predisposed to partiality
toward the accused, and defence counsels clear description of the relevance
and importance of the questions going to his defence, I am of the view the
trial judge erred in law in failing to engage in the process of weighing of the
costs and benefits of receiving his opinion evidence. I cannot say it was
correct to exclude the opinion evidence of Dr. Sheoran.

[76]

The decision of
whether to admit expert evidence is discretionary and generally requires
deference to the trial judge. However, where, as here, the trial judge does not
apply the correct legal analysis in deciding whether to admit the evidence,
this is an error of law reviewable on the standard of correctness:
R. v. Balla
,
2016 ABCA 212 at para. 28, leave to appeal refd [2017] 1
S.C.R. vi. An appellate court may intervene where the trial judge makes an
error of law in deciding whether to admit expert evidence:
R. v. Pearce
,
2014 MBCA 70 at para. 74, adopted by this Court in
R. v. Orr
,
2015 BCCA 88 at para. 65;
R. v. Millington
, 2016 BCCA 293
at para. 37, affd 2017 SCC 53.

Exclusion of Other Evidence

[77]

The Crown says the
trial judge properly refused to admit the entire hospital record into evidence.
This record consisted of 148 pages and the Crown says providing it to the
jury would have been highly unhelpful and confusing. In my view, the judge
did not adequately examine whether portions of the hospital record could
properly be admitted as business records. There is no doubt that, but for
concerns with respect to the relevance of certain entries, the hospital record
was an admissible document. Rita Johnson, a nurse who was a witness at the
voir
dire
, identified the complete hospital record and this record was admitted
into evidence on the
voir dire
, as Exhibit 3, without objection.

[78]

The Crowns
objection to admitting the hospital record into evidence was that it was
voluminous and contained material that might be difficult for the jury to
understand and appropriately weigh. That objection was to the wholesale
admission of the hospital record. The trial judge, however, rejected defence
counsels request to have even part of the hospital record, the nursing notes, admitted
into evidence. That ruling appeared to be founded upon the view that the
hospital record spoke only to the complaint that the appellant had not received
appropriate medical care, whereas the appellants counsel sought to introduce
it as a record of the appellants deteriorating mental health in the hospital.

[79]

In my view, once a
witness had attested to the authenticity of the hospital record and it was
admitted into evidence on the
voir dire
without objection, the judge
should have admitted relevant portions of the record as
prima facie
proof
of the facts recorded therein. Those facts included observations made by
medical staff regarding the patients behaviour and the type and quantity of
drugs administered to him.

[80]

Although she left it
open to reconsideration, the constraint the judge placed upon the appellants
counsel in his questioning of Ms. Reichenbach was inappropriate. In my
view, there is no principled basis to preclude the appellants counsel from
asking Ms. Reichenbach about any factual observation noted in the hospital
record with respect to a relevant issue. The judge expressed some concern with
respect to hearsay in the record, but Crown counsel did not object to the admission
of the hospital record on that basis. Rightly so, because
Ares v. Venner
settled the question, described by Hall J. (at p. 622) in that
case as: whether
hospital records and nurses notes are either admissible and
prima facie
evidence
of the truth of the statements made therein or not admissible as being excluded
by the hearsay rule. They are admissible as evidence of the truth of facts
recorded.

Viability of the Automatism
Defence

[81]

The Crown says that
a very basic level of intent is required in an aggravated assault case: an
intention to apply force to the victim. It says the conclusion in this case was
inexorable and:

64        If
there was an error made by the trial judge here in foreclosing the appellants
trial counsel from exploring areas relating to
mens rea
, then the error
was a harmless one, and the evidence of the necessary intent was also
overwhelming. Accordingly, the
curative proviso
should apply.

[82]

As noted above, in
her written charge to the jury the trial judge wrote: Unless you are satisfied
beyond reasonable doubt that Mr. Nield intentionally applied force to
Rajeev Sheoran, you must find Mr. Nield not guilty. Your deliberations
would be over.

[83]

In response to the
question posed by the jury, the trial judge said: If Mr. Nield had
ingested prescribed medication which affected his intention to commit the
crime, he could not be convicted.

[84]

In a series of cases,
the Supreme Court of Canada has addressed the
mens rea
required as an
element of the offence of aggravated assault:

R. v. DeSousa
, [1992] 2 S.C.R. 944;
R. v. Creighton
, [1993] 3
S.C.R. 3;

R. v. Godin
, [1994] 2 S.C.R. 484
; and
R. v. Williams
, 2003 SCC 41. In
Williams
,
the Court wrote:

22

The
mens rea
for
aggravated assault is the
mens rea
for assault (intent to apply force
intentionally or recklessly or being willfully blind to the fact that the
victim does not consent) plus objective foresight of the risk of bodily harm:
R. v. Godin
,
[1994] 2 S.C.R. 484, at p. 485, and [
R. v. Cuerrier
, [1998] 2 S.C.R. 371]
, at para. 95. There is no dispute
that, in this case, this mental element of aggravated assault has been proven
beyond a reasonable doubt.

[85]

This appeal is not
concerned with objective foreseeability of harm.
We are concerned solely with evidence
going to the appellants intention to apply force to the victim.

[86]

The jurisprudence
describes the circumstances in which automatism might be established as a
defence. This defence has been exhaustively canvassed by Canadian courts: see,
e.g., Bastarache J. in

R. v. Stone
, [1999] 2
S.C.R. 290, Hall J.A. in
R. v. Cuthbert
, 2007 BCCA 240,
and Watt J.A. in
R. v. S.H
., 2014 ONCA 303. In
S.H.
,
Watt J.A. wrote:

[
63
]      Automatism relates to the
actus reus
or external
circumstances of an offence. To be more specific, automatism has to do with the
voluntariness component of the
actus reus
. The requirement of
voluntariness is fundamental to the imposition of criminal liability and
reflects our underlying respect for an individuals autonomy. The voluntariness
requirement also reflects the principle that unless a person has the capacity
and a fair opportunity to adjust his or her behaviour to the law, its penalties
ought not to be applied to him or her:
Luedecke
, at para. 56.

[
64
]      The law presumes that people,
including those charged with crime, act voluntarily:
Stone
, at para. 171.
The presumption is rebuttable. Automatism amounts to a claim that the conduct
of a person charged with crime was not voluntary. It follows that a person
charged who invokes automatism in answer to the charge bears the burden of
rebutting the presumption of voluntariness:
Stone
, at para. 171.

[87]

Discussing
that evidentiary burden, he observed:

[
70
]      The court in
Stone
makes it clear that a mere
assertion of involuntariness will not be enough to meet the evidentiary burden:
Stone
, at para. 183. The claim must be confirmed by expert
evidence, sometimes described as psychiatric evidence (para. 184), and on
other occasions as expert psychiatric or psychological evidence (para. 192).

[
71
]      The
Stone
majority offered some guidance about
the nature of the additional evidence that may be relevant for consideration in
deciding whether an accused had satisfied the evidentiary burden to put
automatism in play before the trier of fact. That evidence includes, but is not
limited to:

i.

evidence of a documented medical history
of automatistic-like dissociative states (para. 189);

ii.

evidence of a bystander about
the appearance of the accused before, during and after the alleged involuntary
conduct (para. 190); and

iii.

evidence of motive or absence of
motive (para. 191).

[
72
]      Where an accused has satisfied
the evidentiary burden in connection with automatism, it falls to the trial
judge to determine the legal characterization of the automatism. In a jury
trial, the trial judge must decide whether mental disorder automatism or
non-mental disorder automatism should be left to the jury. In judge alone
trials, the distinction between the evidentiary and persuasive burden tends to
become blurred since the judge is both the trier of law and the trier of fact.
Irrespective of the mode of trial, however, the trier of fact will decide
whether the accused has satisfied the legal or persuasive burden of proof.

[88]

The appellant would
have to meet an onerous test to establish that the assault in this case was an
autonomic act. However, automatism is available as a response to a charge of
aggravated assault.

Addressing such a charge in this Court, in
R. v. Haslam
(1990), 56
C.C.C. (3d) 491
,
Lambert J.A. wrote (at 497):

Non‑insane automatism presents a difficult defence
from the point of view of a trial judge. It is highly unlikely that the
uncorroborated evidence of the accused would ever be sufficient to permit the
defence to be put to the jury. But it is not open to the trial judge to weigh
the evidence in favour of the defence against the contrary evidence. It is not
proper for him to consider questions of credibility when deciding whether to
put such a defence. If he is in doubt as to whether the defence should be put
or not he should resolve that doubt in favour of the accused.

Conclusion

[89]

In my view, it
cannot be said that the defence the appellant sought to establish was bound to
fail or that the exclusion of the opinion evidence of Dr. Sheoran and the hospital
records was immaterial. In my view, this is not a case in which we can or
should apply the curative proviso.

[90]

I would allow this appeal, set aside the conviction, and order a new
trial.

The Honourable Mr. Justice Willcock

I agree:

The Honourable Mr. Justice
Frankel

I agree:

The Honourable Madam Justice
D. Smith