Title

R v Ghiorghita

Document Type

Response or Comment

Publication Date

2019

Keywords

Defences, Automatism, Mental Disorder, Balance of Probabilities

Abstract

Defence Counsel's objection to the trial judge's reasoning about the "defence" of non-mental disorder automatism was understandable, if not - as the British Columbia Court of Appeal points out - correct in law. Although the Supreme Court in R. v. Stone, [1999] 2 S.C.R. 290, 24 C.R. (5th) 1 (S.C.C.) reversed the onus of proof, fundamentally "non-mental disorder automatism" is just an artifact of other rules, not a positive defence at all. However, the Supreme Court decision in Stone does seem to describe the requirements of a defence, and so it is understandable that defence counsel should object to that articulation of "the law".

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