Justice Minister David Lametti is facing calls to act after the Supreme Court of Canada ruled defendants in violent criminal cases can use a defense known as extreme intoxication to automatism.
During Question Period on Monday, Lametti said the government was “considering” its options for responding to the court’s ruling that a law prohibiting the use of this defense in cases of extreme self-induced intoxication was unconstitutional.
But questions remain about what the availability of the defense will mean for victims of violent crime and how the law defines extreme intoxication up to automatism.
Here’s what we know.
What did the Supreme Court do?
In a May 13 ruling, the court declared unconstitutional a federal law banning the use of the defense known as noncrazy automatism, which refers to a self-induced state of extreme intoxication, by people charged with violent crimes such as sexual assault and homicide.
In Canadian law, automatism is defined as “a state of unconsciousness that renders a person incapable of consciously controlling their behavior while in that state”.
The same definition is used to support the “senseless automatism” defence, which is the one used in criminal cases where the accused is found not criminally responsible.
Canada’s highest court says extreme self-induced intoxication is a defense in violent crimes
The federal government had added the provision to the Criminal Code in 1995 specifically in recognition of the concern “that self-induced intoxication can be used socially and legally to excuse violence, especially violence against women and children.”
But in three separate cases involving men prosecuted for committing violent crimes in what they claimed was a state of automatism after consuming intoxicants, the court ruled they should be allowed to use the defense of self-induced extreme intoxication.
“To deprive a person of his liberty for this involuntary conduct committed in a state close to automatism – conduct which cannot be criminal – violates the principles of fundamental justice in a criminal justice system based on personal responsibility for one’s actions” , Judge Nicholas wrote. Kasirer in a nine-judge unanimous decision.
In the decision, Kasirer noted that the court’s decision striking down the provision “has no impact on the rule that intoxication without automatism is no defense against violent crimes of general intent, such as de facto or sexual assault”.
What will this mean for victims?
The question now is what this will mean for victims of violent crime.
When the original rule was put in place in 1995, it was done in recognition of the concern “that self-induced intoxication could be used socially and legally to excuse violence, especially violence against women and children “.
The law itself followed a public outcry over a 1994 Supreme Court case that effectively established the criminal defense of extreme intoxication akin to automatism, when hearing a man’s case. who was initially acquitted and then convicted on appeal of sexually assaulting a woman after drinking.
During the original trial, the defense argued that the man suffered a “power outage”.
“In such a state, the individual loses contact with reality and the brain is temporarily dissociated from its normal functioning”, sums up the 1994 Supreme Court decision. ‘He is in such a state and will probably have no memory of it the next day.
Canada takes action to bar sanctioned Russian nationals from entering the country
BC dad spreads love and acceptance after only child comes to son’s birthday
The Supreme Court’s overturning of the conviction in 1994 caused a public outcry that prompted the federal government to introduce section 33.1, prohibiting the use of the defense of extreme intoxication in violent crimes where the state of intoxication was self-induced.
Intoxication allowed as a defense
According to Sean Fagan, who represented one of three men whose cases were considered by the Supreme Court in Friday’s ruling, Canadians shouldn’t expect an increase in defense claims.
His client, Matthew Winston Brown, had been acquitted of violently attacking a woman inside a house he broke into after consuming alcohol and magic mushrooms at a party in 2018 .
Brown’s legal team had sought to use the defense of extreme intoxication, which the Crown argued they should not be able to do because of the law prohibiting its use in such cases. However, Brown’s defense argued in an Alberta court that the law was unconstitutional, and the presiding judge agreed.
He was allowed to use the defense and was acquitted.
Court of Appeal Convicts Calgary Man Who Attacked Woman While Drunk On Mushrooms
The Crown appealed, and the Alberta Court of Appeal overturned Brown’s acquittal and reversed the trial judge’s ruling that the statute prohibiting the use of the defense was unconstitutional.
With Friday’s ruling, the Supreme Court reinstated Brown’s acquittal.
Fagan said the tusk is “extremely rare and extremely difficult to establish.”
“We’re not talking about the general level of intoxication. Most people will go their whole lives never experiencing or witnessing this level of intoxication, even at the most unruly fraternity nights or NHL games,” Fagan said.
“We’re talking about a level of intoxication that … results in psychosis.”
Thomas Chan gets a new trial after the Supreme Court rules that extreme intoxication can be used as a defense
Kerri Froc, associate professor of law at the University of New Brunswick, offered a different perspective.
She studies how Canadian constitutional law is applied in cases involving gender issues.
She told Global News that it is correct that Kasirer’s ruling indicates that the court believes the defense should be used “rather rarely” and that the court sends a signal to lower courts that they should insist on “evidence convincing enough experts if an accused wants to rely on this defence.
The problem is, Froc said, it’s not clear what that will actually mean.
For example, she cited data on court cases from 1994 to the present to illustrate that dozens of defendants have still attempted to use the defense – including 35 sexual assault cases.
In 80 of the 86 cases she and research co-author Elizabeth Sheehy followed, the defendants were male while the victims were overwhelmingly female.
Post #MeToo, is it time to re-examine the use of post bans?
“It really is a gender-based defense to claim extreme intoxication as a defense for crimes of violence. It’s a defense that is mostly invoked by men to excuse violence against women,” Froc said.
And while the trilogy of cases the court ruled on involved drug use, Froc said the door was not closed for defendants with alcohol intoxication to try as well. to consume it.
“They say the evidence presented to Parliament at the time the provision was enshrined indicated that alcohol would not lead to a state of extreme intoxication. They said there should be expert evidence, regardless of the intoxicant,” Froc said.
“But if you read the decision carefully, the court does not exclude any type of intoxicant used to justify an extreme intoxication defence. They left that door open.
With the law banning the use of the defense now ruled unconstitutional, the ball is in Parliament’s hands to decide whether it will legislate to try to address the concerns.
The Supreme Court presented two possible options that the government could explore in its decision.
One option could be “if Parliament legislated an offense of dangerous intoxication or intoxication causing harm which incorporates willful intoxication as an essential element,” Kasirer wrote.
“Parliament may also wish to study and regulate depending on the nature and properties of the intoxicant,” he added in the ruling.
“The common effects of the intoxicant, its legality, and the circumstances in which it was obtained and consumed may be relevant to a marked derogation standard.”
So far, Lametti has not specified what the next steps will be.
But he said the government was figuring out how to respond.
“We are carefully considering this decision,” he said during question period.
“He offers some avenues for moving forward. We are exploring these avenues responsibly in order to arrive at a response that protects victims and closes the gaps in our criminal law.
© 2022 Global News, a division of Corus Entertainment Inc.