What Is Automatism? And Can It "Justify" Violent Criminal Behaviour In Canada?

• Jurisdiction: Canada
• Law Firm: Watson Goepel LLP
• Subject Matter: Litigation, Mediation & Arbitration, Criminal Law, Trials & Appeals & Compensation, Crime
• Author: Ms Katharine E. Hennebery
• Published date: 13 March 2023

In May 2022, the Supreme Court of Canada ("SCC") released two concurrent judgments for two cases dealing with circumstances where the accused was relying on a defence of "automatism."

At common law, automatism is "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] 2 S.C.R. 2019, at para. 156).¹

Court Decisions Involving Automatism

In R v. Brown, 2022 SCC 18, the defendant, consumed alcohol and magic mushrooms at a party, which contained psilocybin. He then "lost his grip on reality" and left the party and broke into a home and violently attacked a woman, who suffered permanent injuries. Mr. Brown was acquitted at trial, with the trial judge agreeing with him that s. 33.1 of the Criminal Codeviolated ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms.His acquittal was overturned at the Court of Appeal and the matter was referred to the SCC.

In R v. Sullivan, 2022 SCC 19, there were two appeals of two defendants charged with unrelated crimes, heard at the same time. Mr. Sullivan intentionally took an overdose of prescription drugs and fell into an impaired state, during which he attacked his mother with a knife and gravely injured her. The second defendant, Mr. Chan fell into an impaired state after voluntarily ingesting magic mushrooms containing psilocybin, attacked his father with a knife and killed him, and seriously injured his father's partner. At trial, both defendants were convicted. At the Court of Appeal, which heard the cases together, Mr. Sullivan's conviction was overturned, and a new trial was ordered for Mr. Chan. The Crown appealed both rulings to the SCC.

Can Automatism "Justify" Violent Criminal Behaviour in Canada?

1. 33.1 of the Criminal Code prevents a person from relying on automatism as a defence for crimes involving assault or interference with the bodily integrity of another person.

At the SCC, Mr. Brown's conviction by the Alberta Court of Appeal was overturned and Mr. Sullivan and Mr. Chan's acquittals were upheld.

In writing for a unanimous Supreme Court, Mr. Justice Nicholas Kasirer said s. 33.1 of the Criminal Code violates sections 7 and 11(d) of the Charter in a way that cannot be justified.

In finding that s. 33.1 unjustifiably violated the accused's Charter rights, Mr. Justice Kasirer stated "The violations of the rights of the accused in respect of the principles of fundamental justice...