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Today’s highlighted comments are from Sean Fine’s story: Ontario judge restores defence of extreme drunkenness in sexual assaults. The decision means that a federal attempt to undo one of the most controversial Supreme Court rulings of the past quarter-century is no longer on the books in the province. Our readers had questions, concerns and also offered educated answers.
The law of extreme intoxication as a defence is somewhat complicated - I no longer claim to have a complete handle on it, but there are crimes requiring a ‘specific intent’ and crimes requiring only a ‘general intent.’ The important thing to know is that the section of the Criminal Code that Justice Spies struck down applied to more than sexual assault.
And to answer another poster, yes the defence of extreme intoxication always has applied to first degree murder as well - the crown must prove it was planned and deliberate, which is tough to do when the accused is intoxicated past a certain point. – Alceste
Which prompted this response
If its complicated for you, it really tough to understand for the rest of us. Just hate to see this type of defense "abused". ie. "I was too drunk" defense every time there's a serious crime committed
Thanks for your posts. – Left of Right
If it's any consolation, the judge in this case quoted this statement from a Supreme Court of Canada justice in a prior related case. He had written:
"that it will only be on rare occasions that evidence of such an extreme state of intoxication can be advanced and perhaps only on still rarer occasions that it is likely to be successful.” – Alceste
Before people freak out, they should read past the provocative headline. This case doesn't involve a defendant who claims he was a bit tipsy after a couple of beers. The defendant claims that he didn't know what he was doing. It is a fundamental principle of criminal law that there must be a physical act and a mental element. It is perfectly consistent with this principle that a person who is intoxicated to the point of automatism should not be criminally liable, whether the charge is sexual assault or otherwise. Whether or not a defense of automatism can be made out in any particular case is a question of fact.
Even though the judge's decision makes perfect sense, it is unfortunate that she will now come under attack from people who have little or no understanding of her judgment or criminal law. – Conservative For Life
Finally, one reader worried about the courts overreaching
Does anyone notice that our judges are out of control in this country.
They write and re-write laws on a whimsy.
Why do we bother electing a government every 4 years when all the big decisions are ultimately made by 9 unelected judges who are accountable to no one.
I am not saying I agree or disagree with this particular ruling.... however, this nonsense needs to stop.
Parliamentarians should be the only ones making laws. Judges should interpret the law as it is written and refer a matter back to elected officials if they think somoneones rights are infringed upon by the law. Then elected officials can decide if they agree or disagree and whether the wording of the law needs changed.
That is true democracy.
If judges want to make laws then we should have a conversation about an elected supreme court so that power remains where it belongs, with voters. – commonsense1234
Commonsense1234: Judges do not "write and re-write laws". Only Parliaments can do that. Judges can determine if a given law contravenes higher law and that is the case here.
Canada has a hierarchy of law. The overarching law of the Canada is the Constitution and the accompanying Carter of Rights and Freedoms. All law must be in accordance with those two documents. When a judge finds that a law is not, because legislatures are more than capable of making mistakes, the judge is perfectly within his or her sphere of authority to set the law aside. That could begin a process of appeal that may ultimately end up at the Supreme Court, the final arbiter of the constitutionality of a law.
When people talk about a country observing the rule of law, this is exactly the process that they mean. It means that even our elected officials, in conducting the task for which we have voted them in, are not above the law. The people of Canada are protected from capricious acts of any legislature and are also protected from the “tyranny of the majority”. – R Rowat
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