The Supreme Court of Canada issued a decision on May 13, 2022 which allows the use of extreme self-induced intoxication as a defence. This means that defendants, even in violent crimes, can avoid conviction if they can prove that they were extremely intoxicated to the point of automatism.
Automatism, as defined in R v Stone, is a state of impaired consciousness where an individual, though capable of action, is said to have no voluntary control over that action. This is known as the “non-insane automatism” defence. In other words, an individual can claim that their actions were involuntary and therefore, they should not be held criminally responsible despite the fact that the decision to consume alcohol or drugs to the point of automatism was voluntary.
However, in the recent decision described above, the Court declared that Section 33.1 of the Criminal Code of Canada (the “Code”) breaches Sections 7 and 11(d) of the Charter of Rights and Freedoms - i.e., the right to life, liberty, and security of the person and the right to be presumed innocent until proven guilty. The Court held that individuals who are accused of violent crimes, such as sexual assault, due to self-induced extreme intoxication now have a defence for their actions.
In other words, prior to May 13, 2022, defendants could not use extreme intoxication as a defence when substances were voluntarily consumed. However, the Court held that this law, prohibiting the use of the non-insane automatism defence, is unconstitutional.
It is important to understand that intoxication on its own, that is in absence of automatism, is not a defence that can be relied on in a sexual assault case (R v Brown). In Brown, the Court held that extreme self-induced intoxication akin to automatism does not concern drunkenness cases. Justice Kasirer clearly stated that “drunkenness, absent clear scientific evidence of automatism, is not a defence to general intent crimes, including crimes of violence such as sexual assault.”
While the recent decision by the Supreme Court has many concerned that in violent cases, such as sexual assault, defendants could be able to rely on non-insane automatism to avoid being held criminally liable for their actions, this is not the case. Although it is understandable the perception this decision creates, the Court’s decision in Brown makes it clear that alcohol alone is unlikely to result in a delusional state akin to automatism. Instead, a defendant must clearly establish evidence of involuntariness of criminal actions and intent, beyond a reasonable doubt. Ultimately, the Court’s decision does not apply to the vast majority of cases involving an intoxicated person who perpetrates a criminal offence.
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