R v Ghiorghita

Document Type

Response or Comment

Publication Date



Defences, Automatism, Mental Disorder, Balance of Probabilities


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".