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Note: Specimen jury instructions serve as a template that trial judges must adapt to the particular circumstances of each trial, not simply read out in whole. They are not designed to be delivered "as-is." More information about the use of specimen instructions is found in the Preface and A Note to Users, which you can find here.
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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.)

[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.

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;

·         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.

 

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.

[1] This caution is a summary of R. v. Stone, [1999] 2 S.C.R. 290, at para. 220.

[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 270, at para. 22.