Automatism does not always prove lack of mens rea, B.C. Court of Appeal finds

By John L. Hill

Law360 Canada (April 18, 2023, 1:53 PM EDT) --
John Hill
John L. Hill
Once again, an appellate court has determined that the outrage vented after the Supreme Court of Canada decided R. v. Brown 2022 SCC 18, was uncalled for. It continues to be the case that the floodgates for an automatism defence to murder are not swung open when an accused claims lack of mens rea due to self-induced intoxication.

In R. v. Sheepway 2022 YKCA 3, a unanimous appeal bench showed in a rational and just decision that drug impairment need not always lead to acquittal in cases of severe self-intoxication. Now, once again, in March 2023, the British Columbia Court of Appeal rejected the defence that heavy and chronic use of methamphetamine prevented an accused from forming the specific intent to commit murder.

In the case of R. v. Pi, 2023 BCCA 105, the fact that 28-year-old Pee Lee Pi attended at the home of 68-year-old Tee Bor and stabbed him with a knife multiple times in the torso while high on drugs would not lead to finding that the accused lacked the necessary mental intent to kill or even allow a second-degree murder charge to be reduced to manslaughter. The facts of the killing were essentially admitted. After the killing, Pi was committed to the psychiatric ward of the Surrey Memorial Hospital. After a 14-day judge alone trial, the issue was whether the Crown had proven the requisite intent for murder.

Pi testified that he was spending $20 to $50 a day on methamphetamines and that he was “high all the time.” The addiction led Pi to become paranoid and in constant fear for his safety. He purchased a knife to defend himself from the imagined attackers. When he attended at Bor’s house and Bor was carrying a knife while preparing food, Pi’s fears caused him to misinterpret the situation. Feeling he was under attack, Pi lashed out at Bor causing the older man’s death.

Defence called psychiatrist Dr. Andrew Kolchak who had interviewed Pi. Kolchak opined that on the day of the attack Pi was intoxicated and experiencing a substance-induced psychotic disorder that included paranoia. However, the legal definition of insanity does not match with the medical definition. The psychiatrist was of the opinion that even a high as Pi may have been, he could appreciate the nature and quality of his actions and was able to foresee their consequences.

Another psychiatrist, Dr. Rakesh Lamba, called as a Crown witness, never interviewed Pi but believed he was experiencing paranoid ideas. But his mental state “was not disturbed to the extent that he would not understand the consequences of his actions.”

The trial judge concluded that on the evidence, Pi had the specific intent necessary for second-degree murder. The drug-induced state did not constitute either an active psychosis or make him unaware of his actions or their consequences.

On appeal, Pi argued that the trial judge erred and a conviction for manslaughter should have been substituted. Was there a misapprehension of the evidence in that the trial judge failed to appreciate that, at the time of the stabbing, Pi was unable to understand the nature and consequences of his act? The trial judge had heard evidence that prior to the stabbing Pi understood what would likely ensue if a person was stabbed in the torso. However, the Supreme Court has determined that when misapprehension of evidence is raised as grounds for appeal, it must alter the fairness of the trial leading to a miscarriage of justice (R. v. Lohrer 2004 SCC 80).

Any quibble as to the interpretation of what the psychiatrist said did not go to the ultimate question of trial fairness or lead to the conclusion that there had been a miscarriage of justice. As well, the trial judge considered the toxicological expert evidence but simply did not believe Pi who claimed ongoing drug-induced impairment even though there was no period of time he could have ingested drugs shortly before showing up at the victim’s door.

The court cited a decision of Justice Gregory Fitch in R. v. Sundman 2021 BCCA 53 that held that an intoxication defence fails when there is anything short of incapacity making an inability to foresee the consequences.

Further, there was no evidence of the quantity or purity of the intoxicants used or evidence that the accused was demonstrating signs of impairment.

The British Columbia Court of Appeal examined Pi’s claims of impairment. The decision to uphold the conviction demonstrates that raising impairment as a defence is no “get out of jail free” card. There is certainly room for an automatism defence in our criminal law, but our courts are clear that proof to substantiate it must be substantial.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books), which was published Sept. 1. Contact him at

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.  

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