The Presumption of Sanity, Automatism and R. v. H. (S.): Is it Insane to Have a Presumption of Insanity?
Criminal Law Quarterly, (2015) Vol. 62
32 Pages Posted: 26 May 2016
Date Written: October 24, 2015
Abstract
This article will attempt to trace the history of the defence of automatism to understand the radical transformation regarding the presumption of sanity in the last several years. In particular, the definition and historical perspectives of automatism will be discussed. The traditional burden of proof and a comparison of mental disorder and non-mental disorder automatism will then be explained. Then the history of the insanity defence will be examined with reference to the presumption of sanity. The cases of R. v. Rabey and R.v.Parks will be discussed with a focusonthe continuing danger theory, and internal and external divisions within the defence of automatism. Then the case of Stone and the very recent Ontario Court of Appeal decision in R. v. H. (S.) will be critically examined. Focusing on the latest case from the court that there should be a presumption of mental disorder on the part of the accused, the paper will close with a look forward to the future of this very troubled and all but eliminated defence in Canadian criminal law.
Keywords: Automatism, mental disorder, insanity, presumption, Rabey, R v H(S), Stone
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