Insane Automatism: A Proposal for Reform

21 Pages Posted: 28 May 2008

See all articles by Alan Brudner

Alan Brudner

University of Toronto - Faculty of Law

Abstract

Courts have confined the common-law defence of sane automatism by defining disease of the mind, a requisite component of insane automatism, so broadly as to ensnare anyone whose automatism might recur and lead to violence. This definition of insane automatism in terms of dangerousness means that persons found innocent of wrongdoing are detained and possibly confined for their own good (as others see it) or for what they might do in the future, in the absence of the only justification for giving force to these reasons consistent with respect for their autonomy. That justification is that the person acquitted is suffering from a mental disorder that severely impairs his capacity for autonomous action, justifying diminished respect. The Criminal Code definition of legal insanity honours this justification, but the common-law definition of insane automatism does not. Accordingly, a disease of the mind should be redefined as any mental disorder that renders the person generally incapable of appreciating the reasonably foreseeable consequences of his actions or of understanding information relevant to executing his conception of wellbeing. While this definition would channel fewer acquittees into the post-trial disposition hearing, it provides as much protection from dangerous persons as a free society permits. If impaired autonomy rather than dangerousness were the criterion of insane automatism, there would be no need to make the pleas of sane and insane automatism mutually exclusive or to place the burden of proving involuntariness on the accused.

Suggested Citation

Brudner, Alan, Insane Automatism: A Proposal for Reform. McGill Law Journal, Vol. 45, No. 1, 2000, Available at SSRN: https://ssrn.com/abstract=1137709

Alan Brudner (Contact Author)

University of Toronto - Faculty of Law ( email )

78 and 84 Queen's Park
Toronto, Ontario M5S 2C5
Canada

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