R v Stone 1999 SCC  leading case in this area

THE STONE TEST (holistic approach to disease of mind automatism)

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  In deciding whether it is a disease of the mind or not, the court must take a holistic approach:
  
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    1) the internal cause factor: contextual objective test from Rabey – an analytical tool to strike a balance between providing exemptions from criminal liability and protecting the public (Parks)
    
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      modified objective approach – a “similarly situated individual” (look to circumstances, not to mental state) to assess person’s automatistic reaction
      
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      would a reasonable person have reacted to the alleged trigger by entering an automatistic state (per Rabey)?
      
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    2) the continuing danger factor: any condition that is likely to present a danger to the public/danger violence is likely to reoccur, should be treated as a disease of the mind (Parks)
    
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      and also consider policy concerns: does society require protection from the accused? Majority and dissent in Rabey agreed that public safety is key concern
      
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      Key factor: likelihood of recurrence of violence
      

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  3) policy issues:
  

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  a) concerns about fabrication
  
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  b) public disillusionment over outright acquittal (admin of justice)
  
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  c) concern that a full acquittal will not allow for subsequent monitoring (Lamer in Parks)
  
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  these concerns are so great and there is a lot of evidence linking mental disorders to automatism, so there is a presumption in favour of a mental disorder
  

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   Evidence of extremely shocking trigger required for “psychological blow” (non-mental disorder) automatism: assessed with a modified objective test
   

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  Courts will consider these factors (not exhaustive):
  
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    Severity of the trigger
    
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    Corroborating evidence of bystanders
    
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    Corroborating medical histories
    
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    Presence or absence of motive
    
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    Relationship between the alleged trigger and the victim
    

 another criticism – putting so many restrictions before automatism can even be put to the jury = lack of faith in juries

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  Note: this case comes close to abolishing the defence – psychological blow automatism needs to be an EXTREMELY SHOCKING TRIGGER (not just stressful or difficult) and amnesia alone is not evidence of automatism (Stone, Parks, Ansari)
  
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  Note: big dissent by Binnie here (on burden of proof – i.e. wrong to make accused prove voluntariness, problems with internal/external cause distinction, problems with expanding NCRMD – seems inappropriate to classify something as a disease of the mind, absent any diagnosis, simply because there was no “external cause” found to justify the automatistic state
  

 Some criticism that since voluntariness must be proved on BOP, this creates a new hurdle to the defence being left with the jury (more than just “some” evidence). But court below rejects this:

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  Fontaine 2004 SCC clarifies the usual “air of reality” test applies to automatism:
  
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    1. Some evidence (normally, an assertion of involuntariness supported by the logically probative opinion of a qualified expert) must be presented by accused to bring the defence
    
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    2. Persuasive burden shifts to the Crown to prove each element of the offence; if met…
    
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    3. Jury then decides if the accused has shown on BOP that actions were involuntary (note: reverse onus, like NCRMD) – the law presumes sanity and voluntariness
    

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  Picked up on the holistic test, even in circumstances of co-occurrence (drug use and psychosis)
  
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    When dealing with temporary transient psychosis, it is a presumption of external cause from intoxication
    
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    If voluntary intoxication  s.33  discuss constitutionality
    
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    It can be rebutted: whether or not there is some kind of internal vulnerability is going to depend on the facts of the case.
    

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  If the brain damage is more likely to cause substance abuse, then what causes the intoxication? Is it voluntary anymore? Discuss issues