Justice Minister David Lametti is facing calls to act after the Supreme Court of Canada ruled defendants in violent criminal cases can use a defence known as extreme intoxication to the point of automatism.
During question period on Monday, Lametti had said the government is “studying” its options to respond following the court’s ruling that a law prohibiting that defence from being used in case of self-induced extreme intoxication was unconstitutional.
But there remain questions about what the availability of the defence will mean for victims of violent crimes, and how the law defines extreme intoxication to the point of automatism.
Here’s what we know.
What did the Supreme Court do?
In a decision issued May 13, the court declared unconstitutional a federal law prohibiting the use of the defence known as non-insane automatism, which refers to a state of self-induced extreme intoxication, by those accused of violent crimes such as sexual assault and homicide.
Automatism in Canadian law is defined as “a state of unconsciousness that renders a person incapable of consciously controlling their behaviour while in that state.”
The same definition is used to support the defence of “insane automatism,” which is what is used in criminal cases where the accused is found to be not criminally responsible.
The federal government had added the provision to the Criminal Code in 1995 specifically in recognition of concern “that self-induced intoxication may be used socially and legally to excuse violence, particularly violence against women and children.”
But in three separate cases involving men who were prosecuted for committing violent crimes in what they claimed was a state of automatism after consuming intoxicating substances, the court ruled that they should be allowed to use the defence of self-induced extreme intoxication.
“To deprive a person of their liberty for that involuntary conduct committed in a state akin to automatism — conduct that cannot be criminal — violates the principles of fundamental justice in a system of criminal justice based on personal responsibility for one’s actions,” wrote Justice Nicholas Kasirer in a unanimous nine-judge decision.
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 defence to violent crimes of general intent, such as assault or sexual assault.”
What will this mean for victims?
The question now is what that will mean for victims of violent crimes.
When the original rule was put in place in 1995, it was done in recognition of the concern “that self-induced intoxication may be used socially and legally to excuse violence, particularly violence against women and children.”
The law itself followed public outcry over a 1994 Supreme Court case that effectively established the criminal defence of extreme intoxication akin to automatism, when hearing the case of a man who had been originally acquitted and then convicted on appeal of sexually assaulting a woman after drinking.
In the original trial, the defence had argued the man suffered a “blackout.”
“In such a state the individual loses contact with reality and the brain is temporarily dissociated from normal functioning,” the Supreme Court’s 1994 ruling summarized. “The individual has no awareness of his actions when he is in such a state and will likely have no memory of them the next day.”
The Supreme Court’s 1994 overturning of the conviction led to public outcry that prompted the federal government to introduce Section 33.1, prohibiting the extreme intoxication defence from being used in violent crimes where the state of intoxication was self-induced.
According to Sean Fagan, who represented one of the three men whose cases the Supreme Court reviewed in the Friday decision, Canadians should not expect an increase in uses of the defence.
His client, Matthew Winston Brown, had been acquitted of violently attacking a woman inside a house that he had broken into after consuming alcohol and magic mushrooms at a party in 2018.
Brown’s legal team had sought to use the defence of extreme intoxication, which the Crown argued they should not be able to because of the law banning its use in such cases. However, Brown’s defence argued in an Alberta court that law was unconstitutional, and the presiding judge agreed.
He was permitted to use the defence, and was acquitted.
The Crown appealed, and Alberta’s appellate court overturned Brown’s acquittal and set aside the trial judge’s ruling that the law barring the use of the defence was unconstitutional.
With the Friday ruling, the Supreme Court restored Brown’s acquittal.
Fagan said the defence is “exceedingly rare and exceedingly difficult to establish.”
“We’re not talking about the general level of intoxication. Most people will go their entire life without ever having experienced or witnessed this level of intoxication, even at the most unruly of frat parties or NHL games,” Fagan said.
“We’re talking about a level of intoxication that … brings about psychosis.”
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 equality issues.
She told Global News it is accurate that Kasirer’s ruling indicates the court believes the defence should be used “quite rarely,” and that the court is sending a signal to lower courts that they should insist on “pretty compelling expert evidence if an accused wants to rely on this defence.”
The problem is, Froc said, that it’s unclear what that will actually mean.
For example, she cited court case data from 1994 until the present to illustrate dozens of criminal defendants have still tried to use the defence — including 35 cases involving sexual assault.
In 80 of the 86 cases that she and research co-author Elizabeth Sheehy tracked, the defendants were male while the victims were overwhelmingly female.
“It really is a gendered defence to claim extreme intoxication as a defence for crimes of violence. It’s a defence that’s mainly brought forward by men to excuse violence against women,” Froc said.
And while the trilogy of cases the court ruled on involved the use of drugs, Froc said the door is not closed for defendants in cases of intoxication by alcohol could try to use it as well.
“They say that the evidence before Parliament at the time that the provision was entrenched said that alcohol isn’t going to lead to a state of extreme intoxication. They said that there’ll have to be expert evidence brought, no matter what the intoxicant is,” Froc said.
“But if you read the decision carefully, the court is not ruling out any kind of intoxicant being used to ground in extreme intoxication defence. They left that door open.”
What happens next?
With the law prohibiting the use of the defence now deemed unconstitutional, the ball is in the hands of Parliament to decide if it will legislate to try to address the concerns.
The Supreme Court laid out two possible options the government could explore in its ruling.
One option could be “if Parliament legislated an offence of dangerous intoxication or intoxication causing harm that incorporates voluntary intoxication as an essential element,” Kasirer wrote.
“Parliament may also wish to study and regulate according to the nature and properties of the intoxicant,” he added in the decision.
“The common effects of the intoxicant, its legality, and the circumstances in which it was obtained and consumed may be relevant to a marked departure standard.”
Lametti so far hasn’t said what the next steps will be.
But he said the government is looking at how to respond.
“We’re carefully reviewing this decision,” he said in question period.
“It does propose a few ways forward. We are studying those ways forward in a responsible manner in order to get to a response that protect victims and eliminates gaps in our criminal law.”