Voluntary action required in criminal law

The Court of Appeal decision in R. v. Luedecke, 2008 ONCA 716, released Friday, deals with a claim that a man was not guilty of sexual assault because he was sleepwalking. In discussing the claim the Court reviewed the need for conduct to be voluntary for it to be criminal.

A central assumption in criminal law is that conduct which is criminal is voluntary and, accordingly, punishment is not mere vengeance but serves a purpose. If conduct is not voluntary the justification for punishment is problematic.

Quaere how many crime of passion are committed without some element of compulsion?
The Court writes:

[53] Conduct that is not voluntary cannot be criminal ... . The voluntariness requirement is a principle of fundamental justice protected by s. 7 and s. 11(d) of the Charter: R. v. Daviault (1994), 93 C.C.C. (3d) 21 (S.C.C.), at pp. 48-49, 69.

[54] A claim by an accused that his or her conduct was involuntary and should result in an acquittal for that reason can arise in a variety of very different circumstances. Automatism is the legal term used to describe one specific kind of involuntary action: see Bratty v. Attorney General for Northern Ireland, (1963) 3 All E.R. 523 (H.L.), per Lord Denning at pp. 408-409; Parks, per La Forest J. at p. 302. Automatism refers to involuntary conduct that is the product of a mental state in which the conscious mind is disassociated from the part of the mind that controls action. A person in a state of automatism may perform acts, sometimes complicated and apparently purposeful acts, but have no control over those actions: William Wilson, et al., "Violence, Sleepwalking and the Criminal Law: (2) The Legal Aspects" (2005) Crim. L.R. 614, at pp. 615-16. North P. put it this way in R. v. Burr, [1969] N.Z.L.R. 736 ( C.A. ), at p. 744:

In my opinion then there is now clear judicial authority for the view that in order for a defence of automatism to succeed, the person whose conduct is under review must be unconscious of what he was doing. In short that what he did was an unconscious involuntary act... [I]n my opinion, the evidence must be sufficient to lay a proper foundation for the plea that the accused person acted through his body and without the assistance of his mind, in the sense that he was not able to make the necessary decisions and to determine whether or not to do the act. [Emphasis added.]

[55] The disassociative state that is the hallmark of automatism can be caused by many things including disease, mental illness, concussion, drugs, and parasomnia. Each of these conditions can produce a condition in which an accused, while capable of complex, apparently goal-oriented conduct, is incapable of exercising any control over those actions. As will be discussed below, the cause of the automatism is an important consideration in characterizing the nature of the automatism.