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INTRODUCTION
The automatism defence has recently been thrust back into the legal spotlight by the Ontario Court of Appeal's decision in R. v. Sullivan.1 An appellate decision on the constitutionality of the limitations on the intoxication defence found in s. 33.1 of the Criminal Code2 was long overdue. Despite s. 33.1 being enacted in 1995,3 only a handful of trial courts have ruled on the constitutionality of the provision.4 An authoritative ruling from Ontario's highest court also comes with the strong prospect of an appeal to the Supreme Court of Canada to settle the question of whether s. 33.1 complies with the Charter.5
If granted leave, it would be prudent for the court to also consider the broader impact its jurisprudence has had on criminal defendants' ability to plead automatism "defences."6 The issue that has avoided sufficient criticism concerns the court's decision to place the burden of proving automatism on the accused on a balance of probabilities.7 The court justified placing this heavy burden on the accused in two ways. First, it appealed to the difficulty the Crown faces in proving that an accused was not an automaton. This justified at least partially placing the burden of proof on the accused. Second, the court justified making the burden significantly higher for automatism defences than for true defences8 by maintaining that claims of automatism are inherently easier to feign.9
For present purposes, I need not take issue with these arguments justifying the reversal of the burden of proof in automatism cases. Instead, I want to ask a different question: does the current approach to proving automatism prevent accused persons from raising an automatism defence? Many accused, I maintain, are unable or unwilling to hire the expert witness required to make out an automatism claim.10 This gives rise to a divide in the criminal justice system: those who can afford expert testimony may plead automatism, while those who cannot afford such testimony or rationally deem it uneconomical to do so will be denied access to the defence because of the depths of their pockets. To alleviate this inequity, I conclude that courts should require that the Crown and defence share the burden of proof, a proposal which I maintain is necessary to justify the infringement of the...