Comment on R v H(S): Automatism and Evidential Burdens
(2014) 11 Criminal Reports (7th) 88-91
5 Pages Posted: 4 Mar 2016 Last revised: 5 Mar 2016
R v H(S) is yet another example of the defence of automatism being raised in a case involving violence against women. One of the many problems with this defence is that it has the effect of pathologizing such violence. It promotes the idea that "normal" men don't kill, rape or assault women and the accused must either have been in an involuntary state due to some external cause beyond his control or from a disease of the mind. Leaving aside the broader policy issues raised by the automatism defence, the Court of Appeal decision reveals the extent to which courts struggle with articulating and applying the evidential burden in cases involving reverse onus defences.
Keywords: Evidence, Evidential Burden, Criminal Law, Automatism, Violence against Women, Canada
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