Reaffirming mens rea

On Friday, the Supreme Court of Canada unanimously ruled that Section 33.1, which bars the defence of extreme intoxication causing automatism, is unconstitutional because it is overbroad and impacts on Section 7 and 11(d) Charter rights of the accused. The court, however, also made it clear that the cases did not involve drunkenness, but rather psychotic, delusional and involuntary conduct not usually associated with drunkenness.

“To be plain: it is the law in Canada that intoxication short of automatism is not a defence to the kind of violent crime at issue here,” Justice Nicholas Kasirer wrote for the Court. “The outcome of the constitutional questions in these appeals has no impact on the rule that intoxication short of automatism is not a defence to violent crimes of general intent in this country.”

The main reasons were laid out in the decision in R. v. Brown, which overturned Section 33.1. That analysis was carried forward to the R. v. Sullivan decision, which included a few other considerations.

In overturning the law, the court invited Parliament to draft a new law that combats extreme intoxicated violence, and left them a path to do so.

In an emailed statement, Justice minister David Lametti said that he was 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,” Lametti said.

Defence lawyer Kyla Lee of Acumen Law Corporation in Vancouver, says that members of the public may find it difficult to stomach the notion that one could voluntarily consume drugs or alcohol to the point that they lose control over themselves and not be found guilty for heinous acts. Nevertheless, she finds the decision to be sensible.

“Our criminal law, being the blunt instrument that it is, shouldn’t punish people whose actions are truly involuntary,” Lee says. “Whether voluntary actions led to involuntary conduct, we shouldn’t punish people for things that they did not intend to do.”

Lee notes that the intoxication to the point of automatism defence succeeds so rarely, and that it is so difficult to establish in court, and that it is such a small minority of people who end up in that state of intoxication means that the level of panic in the public is not justified.

As well, Lee also adds that an automatism defence could never work in impaired driving cases, even if that suggestion is floating around social media.

“The voluntary consumption of alcohol or drugs to the point of intoxication, even if it renders you incapable of making good decisions about your actions does, in fact, lead to a conviction on impaired driving offences,” Lee says. “The applicability of [this decision] to impaired driving, it’s not going change the landscape for those kinds of cases. This was dealing more specifically with violent offences. In impaired driving case, the offence is the voluntary consumption to the point of intoxication and the actus rea is driving.”

Jody Berkes, past chair of the CBA’s criminal justice section, says that the court was alive to the fact that domestic violence is gendered, that it is often accompanied by intoxication, and that in the vast majority of those cases, drunkenness is not a defence.

“The court specifically says that the fact that this defence may arise only rarely is of no comfort to the victims who suffer from domestic violence, and similarly, the fact that the defence may be met in certain cases, the fact that [section] 33.1 might convict the morally innocent is of little comfort to the system,” Berkes says.

“This was not a decision just written for egg-head lawyers. This was a decision that really wanted to address society at large,” Berkes adds.

Kerri Froc, a law professor at the University of New Brunswick, says that with Section 33.1 struck down, the state of the law reverts to what had been decided in the 1994 Daviault decision, which is why Parliament needs to act to rectify some of the problems with that decision. In Daviault, the court held that convicting someone who lacked the capacity to form the requisite mens rea would be unconstitutional.

“At least in this decision, there is lip service given to women, although it’s framed in terms of interests and not rights, and they’re relegated to Section 1,” says Froc. Even so, the court has never found a section 1 justification of a section 7 violation, so trying to import those concerns to section 1 instead of section 7 analysis is problematic, she adds.

However, Kasirer recognized the principle of protection of the equality rights of women and children as pressing and substantial, and that people who voluntarily induce extreme intoxication should be accountable for those choices. Froc is also heartened by the attention given to women and sexual assault, given that Section 33.1 was a legislative response to the Daviault ruling addressing sexual assault under extreme intoxication.

Froc is concerned that the court did not close the door on alcohol leading to extreme intoxication, noting only that it would be extremely rare and they would need witness support for it.

“It really is going to be up to Parliament to have the courage to redraft this law,” Froc says.

The court has given Parliament some clear signals on the expectation for what a new law could look like, but it remains up to Parliament to follow up on it.

“It’s a fine line that the court has to draw, because there is the idea that Parliament has to consult and to consider the various stakeholders, and courts aren’t in a good position to do that,” Froc says. “That has to be the provenance of Parliament, going and consulting with feminist groups, as they did before 33.1 was enacted, and as I understand it, feminist groups weren’t consulted about the final text. That would probably be a very good thing to do this time around.”

Given that the decision was unanimous, Froc says she had hoped for a dissent that would look at Section 28 and women’s equal rights.

“It’s short-sighted to say that women don’t have a stake in their own fair trial rights when it comes to a trial on sexual assault,” Froc says.

Also noteworthy in the Sullivan decision, the court revisits the application of horizontal stare decisis. A finding of unconstitutionality at one level of a court should apply to all decisions at that level, barring a few extreme exceptions.

Berkes says that for practising lawyers, the analysis is especially relevant for sentencing for mandatory minimum sentences.

“If a superior court strikes down a mandatory minimum, is another superior court bound to follow that constitutional invalidity?” Berkes says. “This re-affirmation will be helpful for trial counsel, both Crown and defence.”