Skip to main content

Extreme intoxication that produces a psychotic state can be a defence to violent crime such as sexual assaults and stabbings because the law that bans it is unconstitutional, the Supreme Court of Canada ruled unanimously on Friday.

That principle, set out in three cases involving severe, even fatal violence after drug use, reaffirmed one of the most controversial rulings in the post-1982 era of the Charter of Rights and Freedoms.

In 1994, the court threw out a conviction against a man who had consumed seven or eight bottles of beer and a large bottle of brandy, then sexually assaulted a woman in a wheelchair. The court said then, by a count of 6-3, that Henri Daviault should have been allowed to present a defence of drunkenness akin to automatism. Until that point, Canadian law did not allow it.

In the firestorm that ensued, Parliament quickly passed a law blocking the use of the defence in violent crimes. (The previous rule had been part of the common law, or body of precedents, rather than written in a statute.) In the cases that were the subject of Friday’s ruling, prosecutors had argued that the law was necessary to protect women and children from violence linked to substance use, to hold people accountable for their decision to get drunk or high, and to defend the justice system’s reputation.

Supreme Court must keep women’s rights at the forefront when it rules on ‘extreme intoxication’ defence

The legal defence of extreme intoxication is not inherently anti-feminist

The court responded that Parliament went wrong by not requiring that the state of automatism or the violence that followed be reasonably foreseeable to those using drugs, or combining drugs and alcohol.

It stressed, though, that intoxication short of the extreme state of automatism or psychosis is not a defence to sexual assault or other violent crimes. And it expressed doubt that excessive drinking can produce automatism, although it did not rule out the possibility.

The court also pointed federal legislators to potential alternatives: create an offence of criminal intoxication, or hold people criminally responsible for violent actions if their loss of control and the harm to others were reasonably foreseeable – that is, were they criminally negligent in their substance use, departing from acceptable standards of behaviour.

Still, the court was emphatic that core beliefs of the criminal-justice system – the presumption of innocence and the principle that only voluntary conduct may be criminalized – were at stake in the cases.

“It is difficult to imagine more serious limitations than the denial of voluntariness, mens rea [intent], and the presumption of innocence all in one,” Justice Nicholas Kasirer wrote for the court in the case of Matthew Winston Brown of Alberta.

The three cases offered the court a picture of men in states of psychosis. Mr. Brown, 27 at the time, consumed alcohol and magic mushrooms, ran naked into the winter night, invaded two homes, and assaulted a woman. He had no history of mental illness and no criminal record. In Ontario, David Sullivan, then 43, had been trying to take his own life using pills. He began talking about aliens and stabbed his mother with two knives, stopping when she said, “David, I’m your mother.” She survived. Thomas Chan, also of Ontario, was 19, and after using magic mushrooms yelled “I am God” and stabbed his father to death, then severely injured his father’s partner.

The two Ontario men were convicted at trial because they were blocked from using the defence of automatism; each was sentenced to five years in prison. The Ontario Court of Appeal threw out the convictions and ordered a new trial for Mr. Chan, and an acquittal for Mr. Sullivan. The Alberta man was acquitted when the trial judge ruled the law unconstitutional, but the province’s appeal court threw out the acquittal, upheld the law and substituted a conviction.

The Supreme Court ordered acquittals of Mr. Brown and Mr. Sullivan and upheld the order for a new trial for Mr. Chan, saying it lacked jurisdiction to substitute an acquittal. Mr. Chan’s lawyers, Matthew Gourlay and Danielle Robitaille, said they would make submissions to the Crown that another trial would be pointless in light of the ruling. A spokesman for the Ontario Attorney-General declined to comment while the matter is before the court.

‘It’s like walking around with a loaded gun’: Supreme Court judge mulls extreme intoxication defence

Federal Justice Minister David Lametti said the government is carefully reviewing the decision to determine its effect on victims and the criminal law. “It is critically important to emphasize that today’s decision does not apply to the vast majority of cases involving a person who commits a criminal offence while intoxicated,” he said in an e-mailed statement.

Mr. Gourlay called the ruling “a ringing reaffirmation of some very fundamental principles of criminal law.”

Kat Owens, project director at Women’s Legal Education and Action Fund, which intervened in the case, expressed support for the ruling, saying that the court had said clearly that drunkenness alone could not be a defence in sexual-assault cases.

“Drunkenness has never been, and is not now, a defence to sexual assault,” she said in a statement.

Michelle Lawrence, a law professor at the University of Victoria, wrote a PhD thesis in criminology on substance-associated psychosis. In her view, the defence of extreme intoxication should not be used for alcohol-induced dissociation, “because that is not a real thing” in scientific terms. She said the use of psychoactive drugs such as crystal meth has been increasing, “and there are always worries that in these states, there’s violence.” She was pleased that the court encouraged Parliament to find constitutionally acceptable ways to address the problem.

Gerry Ferguson, a law professor emeritus, also at UVic, compared excessive substance use to driving a car with no brakes and broken steering, and said using the idea of criminal negligence to punish the violence that ensues would be an appropriate response.

Our Morning Update and Evening Update newsletters are written by Globe editors, giving you a concise summary of the day’s most important headlines. Sign up today.