Canadian Judicial Council
Automatism
Defence 16.3
Defence 16.3
Automatism
(June 2014)
The case law distinguishes between “mental disorder automatism" and "non-mental
disorder automatism". In these instructions, "automatism" refers to non-mental disorder
automatism. "Mental disorder automatism" is included in the general defence of mental
disorder. [See Defences 16.1 and 16.2.]
For the defence of automatism to be left with the jury, the accused must (a) assert that
he or she acted involuntarily and (b) support that assertion with evidence of a qualified
expert. (R. v. Fontaine, 2004 SCC 27, at para 89).
The evidential burden is the same as for any defence and judges should always
determine whether there is any evidence upon which a reasonable trier of fact, properly
instructed and acting judicially, could conclude that the defence succeeds. (R. v.
Fontaine, 2004 SCC 27, at para 57.)
If the accused has laid a proper evidential foundation for the claim that his or her actions
were involuntary, the trial judge must determine whether the defence to be left with the
jury is mental disorder or automatism (R. v. Stone, [1999] 2 S.C.R. 290, at para 193).
This is a question of law for the judge to decide. (R. v. Stone, at paras 197, 219-221.)
If there is no proper foundation for a defence based on involuntariness, there may still
be a foundation for an independent defence of mental disorder under s. 16. (R. v.
Stone, at para 193.)
The judge must determine as a question of law whether the condition the accused
claims to have experienced satisfies the legal test for “disease of the mind” as defined in
s. 2 of the Criminal Code. If so, the proper defence to be put to the jury would be mental
disorder. [See Defences 16.1 and 16.2.]
The analysis in Stone is premised on only one defence being left with the jury ─ either
automatism or mental disorder. This instruction has been drafted accordingly; it does
not provide for the very rare case in which more than one cause of involuntariness is
asserted. In such a case, it might be necessary to leave both automatism and mental
disorder with the jury. (R v. Stone, at para 226.)
2
Defence 16.3
[1]
NOA has raised the issue of automatism. Automatism is a state of impaired
consciousness in which an individual, though capable of action, has no voluntary
control over that action. A person who does not act voluntarily cannot be held
responsible for his or her actions and must be found not guilty. A person is not
guilty if he or she was in a state of automatism at the time of the act (or omission)
and, as a result, did not act voluntarily.
[2]
The law treats the defence of automatism with special care because it is an easy
claim to make, but difficult to verify. There is concern that the reputation of the
justice system would suffer if individuals who are in fact guilty were acquitted on
the basis of fabricated claims. 1
[3]
I will now instruct you on a special rule on the burden of proof in relation to
automatism. You will recall that I earlier instructed you that the burden of proof
beyond a reasonable doubt was on the Crown and that NOA was not required to
prove anything. The issue of automatism is an exception to this rule. Since every
person is presumed to act voluntarily, NOA must prove that it is more likely than
not that, due to automatism, s/he did not act voluntarily when s/he [describe the
relevant act (or omission)]. This is a lower standard than proof beyond a
reasonable doubt.
[4]
To decide whether NOA is not guilty by reason of automatism, ask yourselves
the following question(s):
1.
Is it more likely than not that NOA was in a state of automatism at the time
of the act (or omission)?
The second question should be posed only if there is evidence that the accused
foresaw or should have foreseen that s/he would enter a state of automatism.
1
This caution is a summary of R. v. Stone, [1999] 2 S.C.R. 290, at para 220.
3
Defence 16.3
2.
Did NOA foresee or should s/he have foreseen that s/he would enter a
state of automatism? 2
I will now review this question (each of these questions) with you.
[5]
First ─ Is it more likely than not that NOA was in a state of automatism at
the time s/he committed the act (or omission)?
Note: The trial judge must instruct the jury on the issue of expert evidence. Insert
the instruction on Expert Opinion Evidence (Final 10.3) with necessary
modifications. If already given, remind the jury of the use to be made of expert
evidence.
Review the evidence relevant to the issue of involuntariness:
•
The severity of the triggering stimulus;
•
Evidence of bystanders;
•
Medical history of automatic-like dissociative states;
2
Although it is settled that automatism is not available as a defence where it results from the accused’s
"fault or negligence", the extent of the risk that must be foreseeable or foreseen is not settled. See R v. Rabey,
[1980] 2 SCR 513, at 552; R. v. Grant (1993) 22 C.R. (4th) 61 (B.C.C.A.); R. v. Jiang, 2007 BCCA 207, at para 22.
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Defence 16.3
•
Evidence of a motive for the crime; and
•
Whether the person who allegedly triggered the automatism is also the
victim.
When an accused asserts the defence of automatism and refuses to be
interviewed by the psychiatrist for the Crown or to fully participate in the
assessment process, the jury should be instructed that they may take this into
account in weighing the evidence of the defence, as follows:
NOA has claimed s/he acted involuntarily and has led expert evidence to
support that defence. However, s/he has refused to be interviewed by the
psychiatrist for the Crown. NOA’s refusal may cause you to put less weight
on the evidence supporting his/her defence of automatism. This is a matter
for you to decide based on all the circumstances.
If your answer to this question is no, then NOA is not entitled to the defence of
automatism.
If you have not posed the second question, add the following:
If your answer to this question is yes, you must find NOA not guilty.
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Defence 16.3
If you have posed the second question, add the following:
If your answer to this question is yes, go on to the next question.
[6]
Second ─ Did NOA foresee or should s/he have foreseen that s/he would
enter a state of automatism?
The defence of automatism does not apply when a person knows or should have
known that he or she would enter a state of automatism. If you find that NOA
knew or ought to have known that as a result of [specify act, e.g., taking
medications], s/he would enter a state of automatism, the defence of automatism
does not apply.
(Review relevant evidence here)
If your answer to this question is yes, then NOA is not entitled to the defence of
automatism.
If your answer to this question is no, then you must find NOA not guilty.
[7]
If you do not find that NOA was in state of automatism, you must still consider the
evidence relating to automatism along with all the other evidence when you
determine whether the Crown proved the intent [or specify other state of mind,
e.g., recklessness, willful blindness, knowledge or negligence, etc.] required for
[specify offence] beyond a reasonable doubt.
6