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Civil and Administrative
Litigation Opinions
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Criminal - Automatism

. R. v. Sullivan

In R. v. Sullivan (Ont CA, 2020) the Court of Appeal considers the interesting criminal law issue of 'automatism' in the course of a successful Charter challenge:
[2] Automatism is defined as “a state of impaired consciousness, rather than unconsciousness, in which an individual, though capable of action, has no voluntary control over that action”: R. v. Stone, 1999 CanLII 688 (SCC), [1999] 2 S.C.R. 290, at para. 156, per Bastarache J. Involuntariness is therefore the essence of automatism. The “mind does not go with what is being done”: Rabey v. The Queen, 1980 CanLII 44 (SCC), [1980] 2 S.C.R. 513, at p. 518, citing R. v. K., 1970 CanLII 431 (ON SC), [1971] 2 O.R. 401 (S.C.), at p. 401.

[3] Persons in a state of automatism may have the benefit of a “defence” when they engage in otherwise criminal conduct, even though automatism is not a justification or excuse: R. v. Luedecke, 2008 ONCA 716, 93 O.R. (3d) 89, at para. 56. Instead, automatism is treated as negating the crime. It is referred to as a defence because the accused bears the burden of establishing automatism. In Luedecke, at para. 56, Doherty J.A. explained the underlying principles:
A person who is unable to decide whether to perform an act and unable to control the performance of the act cannot be said, in any meaningful sense, to have committed the act. Nor can it be appropriate in a criminal justice system in which liability is predicated on personal responsibility to convict persons based on conduct which those persons have no ability to control.
[4] There are two branches to the defence of automatism. The mental disorder defence, codified in s. 16 of the Criminal Code, R.S.C., 1985, c. C-46, applies where involuntariness is caused by a disease of the mind, since those who are in a state of automatism are incapable of appreciating the nature and quality of their acts or of knowing at the time of their conduct that it is morally wrong [“mental disorder automatism”]. If successful, a mental disorder automatism defence will result in a not criminally responsible verdict, with the likelihood of detention or extensive community supervision.

[5] The alternative branch, the common law automatism defence, applies where the involuntariness is not caused by a disease of the mind [“non-mental disorder automatism”]. Where a non-mental disorder automatism defence succeeds, the accused is acquitted.


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Last modified: 14-11-22
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