The Supreme Court of Canada issued a major decision Friday allowing criminal defendants in assault cases, including sexual assault, to use a defense known as self-induced extreme intoxication.
Effectively, it means that defendants who voluntarily consume intoxicating substances and then assault or interfere with the bodily integrity of another person can avoid conviction if they can prove that they were too intoxicated to control their actions.
“Depriving a person of their liberty for such involuntary conduct committed in a state similar to automatism — conduct that cannot be criminal — violates the principles of fundamental justice in a criminal justice system based on personal responsibility for one’s own actions,” Judge Nicholas wrote. Kasirer in the unanimous decision of nine judges.
Under Section 33.1 of The criminal codeExtreme intoxication, formally known as non-insanity automatism, cannot be used as a defense in criminal cases where the defendant voluntarily ingested the intoxicating substance.
The court ruling declares that article unconstitutional.
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The court concluded that, despite the “laudable purpose” of the penal code provision, it conflicts with the Charter of Rights and Freedoms because it is too broad.
“The legitimate objectives of protecting the victims of these crimes and holding the extremely intoxicated accountable, compelling as they may be, do not justify these breaches of the Charter which so fundamentally alter the principles of criminal law,” the court said in the decision.
“With S. 33.1, Parliament has created a significant risk of conviction and punishment of an extremely intoxicated person who, while perhaps guilty in some respect, is innocent of the crime with which he is charged according to the requirements of the Constitution.”
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In a written argument submitted to the court as part of its deliberations, the Women’s Legal Action and Education Fund had warned that allowing the defense to be used in cases of voluntary extreme intoxication would privilege “individual rights over those of vulnerable groups, including women and children who are disproportionately at risk of intoxicated violence.”
“The harm done to women as a result of intoxicated violence is devastating and infringes on their right to safety and equality,” the group had argued in its statement.
“Holding people accountable for violent crimes committed in a state of self-intoxication is a compelling and substantial goal, given that failure to do so excuses such violence and discourages reporting as an option for survivors.”
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Automatism in Canadian law is defined as “a state of unconsciousness that renders a person unable to consciously control their behavior while in that state.”
The same definition is used to support the “insane automatism” defense, which is what is used in criminal cases where the defendant is found not to be criminally responsible.
The federal government added the provision to the Penal Code in 1995 specifically in recognition of concerns “that self-inflicted intoxication may be used socially and legally to excuse violence, particularly violence against women and children.”
In the ruling, Kasirer noted that the court’s decision striking down the provision “has no impact on the rule that intoxication short of automatism is not a defense against violent crimes of general intent, such as assault or sexual assault.” .
He also wrote that there are still other avenues the government may consider using to legislate around “extreme intoxicated violence.”
“The feeling that a defendant acting violently in a state of extreme self-intoxication is morally guilty is not outside the proper scope of criminal law,” he wrote.
“Protecting victims of violent crime, particularly in light of the interests of equality and dignity of women and children who are vulnerable to intoxicated sexual and domestic violence, is a compelling and substantive social purpose.”
The decision went on to provide examples of ways the government could legislate.
For example, Kasirer suggested that one approach could be “if Parliament were to legislate an offense of dangerous intoxication or intoxication causing harm incorporating willful intoxication as an essential element”.
“Parliament may also want to study and regulate according to the nature and properties of the intoxicant. The common effects of the drug, its legality, and the circumstances in which it was obtained and used may be relevant to a marked standard deviation.
The court issued three rulings on self-induced extreme intoxication on Friday. All three cases involved people who faced criminal prosecution after committing acts of violence after using drugs.
One such case involved Thomas Chan, a Peterborough, Ontario man who was previously convicted of murdering his father in December 2015 after consuming magic mushrooms and having hallucinations.
The Supreme Court’s decision allows him to use the extreme intoxication defense in a new trial. Chan’s lawyers had previously tried to use the defense during his initial trial.
The lead decision was the case of an Alberta man named Matthew Winston Brown who was acquitted of violently assaulting a woman inside a house he had entered after consuming alcohol and magic mushrooms at a party in 2018.
The Crown had appealed his acquittal.
The third case involved a man from Whitby, Ontario named David Sullivan.
Sullivan, the court wrote, had “voluntarily overdosed on a prescription drug.” While he was incapacitated, he “attacked her mother with a knife and seriously injured her.”
He was charged with multiple crimes and convicted, but his lawyers appealed.
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