The evolution and definition of the concept of 'automatism' in Canadian case law

Abstract

Legal and psychological perspectives are blended in a review of the evolution and definition of the legal concept of 'automatism'. Despite the oft-cited, succinct definitions such as those provided by Bowlby JA in R v Kasperek [1951] 101 CCC 375, and by Mr Justice Lacourciere (as he then was) in R v K [1971] 3 CCC (2d) 84 which emphasize a lack of consciousness, case law has shown a tendency to emphasize a lack of volitional control. It has also insisted that such a deficit be primarily brought about by an external factor over which the accused either had no control or, if they had control, of which effects they lacked knowledge. Two noticeable omissions are identified. One is a lack of a logical evaluation of expert testimony in terms of the complexity of the criminal acts that have been claimed to accompany an impoverished mental state. The other is the failure to recognize the mental chemistry of the presence of multiple conditions in the same person at the same time. An overriding concern has been protection of the public, and decisions in a number of cases can be regarded as attempts to ensure that this is achieved before permitting the unqualified acquittal that automatism would bring.