Law barring use of extreme intoxication as criminal defence unconstitutional: SCC

Power Play: One-on-one with David Lametti Federal Justice Minister David Lametti discusses a new bill that would eliminate self-induced 'extreme intoxication' as a legal defence.

OTTAWA — Canada's highest court has ruled that the law barring the use of automatism⁠, or a state of extreme intoxication, as a defence for some crimes is unconstitutional and called on Parliament to consider new legislation.

The Supreme Court of Canada ruled on three cases Friday that examined whether people who commit certain violent crimes can use the defence of automatism⁠ — a state of extreme intoxication to the point where they lose control of themselves.

Justice Nicholas Kasirer, who wrote the unanimous decision, said the section of the Criminal Code that bars the use of this defence for certain acts is unconstitutional.

The use of the Criminal Code section violates the Charter because a person's decision to become intoxicated does not mean they intended to commit a violent offence, said Kasirer.

The section also violates the Charter because an accused could be convicted without the prosecution having to prove the person was willing or meant to commit the act.

The court also said that Parliament may want to enact a new law to hold extremely intoxicated people accountable for violent crimes, to protect vulnerable victims, particularly women and children.

The federal government enacted the existing law in 1995 amid a backlash over a court ruling that recognized drunkenness could be raised as a defence against a sexual assault charge.

Justice Minister David Lametti said in a statement Friday that the government is carefully reviewing the top court's decision to assess its effect on victims as well as the criminal law.

Lametti noted that the decision does not apply to the "vast majority" of cases involving someone who commits a crime while intoxicated.

One of the cases considered by the court was that of a Calgary man who consumed alcohol and magic mushrooms and then violently attacked a woman while in a state of extreme intoxication.

The court restored the acquittal of Matthew Brown, who was convicted for breaking into a professor's house and assaulting her with a broom handle while he was naked and high on magic mushrooms.

Kasirer said Brown was not merely drunk or high, but "was in a psychotic state and had no willed control over his actions."

The court's other decision dealt with two Ontario cases, for Thomas Chan and David Sullivan.

The men had either killed or injured close relatives. Both were high on drugs — one had eaten magic mushrooms, while the other had tried to kill himself with an overdose of a prescription stop-smoking medication.

Applying the decision in Brown's case, the court acquitted Sullivan because he proved he was intoxicated "to the point of automatism," noting the trial judge found he was acting involuntarily.

The top court ordered a new trial for Chan because he was entitled to raise the defence of automatism but no finding of fact had been made in the original trial.

The ruling is not an invitation for people to get drunk or intoxicated and commit crimes, said Daniel Brown, vice president of the Criminal Lawyers’ Association. He said it won't significantly alter the landscape of Canadian criminal law.

"This is such an exceedingly rare type of defence," said Brown, adding the concern about floodgates opening to a rise in people being acquitted who should have otherwise been convicted is "simply not going to happen."

What it will do in very few circumstances is ensure that somebody who's legally innocent is not wrongfully convicted, said Brown.

"We only punish people who have been aware of some risk, and just disregarded that risk. What we don't do is we don't convict people who, at all, had no control over their body," he said.

Women's groups had previously expressed concerns about the defences raised by the men, arguing that they could impact justice for victims of sexual assault and other gender-based violence.

Kat Owens, project director at the Women's Legal Education and Action Fund, said it was important that the court on Friday clarified the difference between drunkenness and extreme intoxication.

By setting a high bar for extreme intoxication, it also sets a high bar for avoiding criminal responsibility, Owens said.

In Brown's ruling, the court said that drunkenness is never a defence for certain crimes, including manslaughter, assault and sexual assault, a clarification Owens said was valuable "given the many ways in which we see the criminal justice system fails survivors of sexual violence."

Kerri Anne Froc, chair of the National Association of Women and the Law's steering committee, said some elements of the decision are cause for concern.

While a high standard of evidence exists to be able to show an accused was in a state of automatism⁠ and use it as a defence, Froc notes the decision does not foreclose the possibility of finding extreme intoxication through the use of one intoxicant.

"Alcohol is an intoxicant, right?"

There is a particular gap in the criminal justice system now that needs to be rectified, for survivors of these acts, typically women, Froc said.

"The accused obviously has a huge stake in the fairness of a trial because their liberty is at stake, but women also have a stake," she said, citing women's Charter rights to security of the person and their own personal liberty.

"I would look at it as what is fair considering that men and women have equal rights."

Parliament is being directed to find a way to create an offence related to extreme intoxication that holds people accountable and does not diminish the stigma for committing offences like sexual assault or assault, Froc said.

"They're saying, 'Go back to the drawing board and figure out something that both protects women and children and still reflects the gravity of the underlying harm.'"

This report by The Canadian Press was first published May 13, 2022.

———

This story was produced with the financial assistance of the Meta and Canadian Press News Fellowship.