Automatism and the Burden of Proof: An Alternative Approach

Abstract

The Supreme Court of Canada requires accused persons to prove automatism on a balance of probabilities. The Court justified reversing the burden of proof by appealing to the impossibility of requiring the Crown to disprove automatism claims and the need to ensure accused persons do not feign a defence. In so doing, however, the Court failed to consider the economic impact of its decision. As pleading automatism requires calling an expert witness, it is likely that many impecunious accused are unable to call required testimony strictly based on their financial status. In other instances, the cost of conviction and punishment might be less than hiring an expert and thus deter an accused from pleading automatism. To address these problems, I develop an alternative approach for proving automatism that requires both Crown and defence share the burden of proof. Adopting this approach is necessary, I maintain, to justify the infringement of the presumption of innocence inherent in requiring accused persons to prove an automatism defence.