Calgary lawyer explains implications of extreme intoxication defence Supreme Court decision

It was a decision that prompted many to voice anger, disappointment, and concern.

Last month, the Supreme Court of Canada ruled that self-induced extreme intoxication, also known as automatism, can be used as a defence in violent criminal cases — a defence previously unavailable under section 33.1 of the Criminal Code.

“Convicting someone for how they conducted themselves while in a state of automatism violates principles of fundamental justice,” reads the R. v. Brown judgement.

Two appeal cases were heard together and nine judges unanimously agreed that section 33.1 of the Criminal Code was unconstitutional.

What it means

But what does that mean? Can someone who is accused of a violent crime — including sexual assault — just claim they were “too drunk” to know better?

Not exactly. Gabriel Chen, senior counsel with Calgary Legal Guidance, breaks it down.

“It’s not about somebody just getting drunk, getting high, or even a combination of that, and then being able to raise that defence and get away with a crime or avoid being convicted if they actually engage in criminal behaviour,” he explains.

“It’s not [a defence] that could be used by somebody kind of buzzed, they’re hazy, or even if they’re really drunk or really high, where their inhibitions are lower, [and] they do something out of character or impulsively. It’s only available for people that are actually in that state of automatism.”

In the case of R. v. Brown, Chen explains that the defendant was in a state of psychosis, was completely delusional, and was not in control of his actions or body.

The Supreme Court ruled it was a violation of Brown’s constitutional rights that he wasn’t able to use automatism as a defence.

Challenging and complicated defence

Chen says section 33.1 of the Criminal Code was only introduced in the mid-90s following public outcry over a case involving a man who sexually assaulted a woman when he was “blackout” drunk.

“Prior to that, the defence had been available. And it’s not like our courts were running rampant with people getting drunk and high, and then being able to escape criminal responsibility for their actions. It is a really high standard,” he says.

“What this case does is it restores what had been previously a very narrow legal defence, that recognizes that people who aren’t in control of their actions don’t have the same kind of blameworthiness that we give to those that are just under the influence, but still know what they’re doing.”

It’s a very challenging and complicated defence, Chen adds, comparing it to defendants arguing they are not criminally responsible due to a mental illness.

“It is something where you need strong expert evidence from a really qualified mental health professional — usually fairly specialized psychiatrists — to be able to give the kind of evidence that a judge would need to show that or to make the defence available.”

Chen adds that even if the evidence is there to support an automatism defence, it’s not an automatic acquittal and is ultimately up to a judge to decide if the threshold is met.

Unforeseen consequences

Perhaps an unforeseen consequence of the Supreme Court decision is the potential impact on racial equity, Chen explains.

“To be able to succeed on this, generally, you’re going to need very complicated, usually quite expensive medical and professional expert evidence,” he says.

“In a lot of cases, people of colour and people of lower means may not be able to afford to make that kind of defence,” Chen explains.

“So you get two people that are charged with potentially the same crime, very similar circumstances, and this is something where it then becomes a defence that’s available to those with money, more likely white cis-gendered people.”

The ruling may also lead some to assume they have a ‘Get Out of Jail Free’ card.

“People may now think that if they get drunk and high enough that they can touch or even assault somebody, or commit other kinds of crimes without consent, and then not be found guilty,” Chen says.

“I think what we should keep in mind, though, is that people that would think like this aren’t really ones that would respect other people’s bodily autonomy to start with.”

Impact on victims and survivors

Sadly, the optics of the Supreme Court judgement could also discourage survivors of sexual violence from reporting the crime — something many are already reluctant to do.

This is where a new program offered by Calgary Legal Guidance (CLG) comes in.

Thanks to federal funding, the four-year program will offer free legal advice for sexual assault survivors to help them navigate the justice system if they so choose.

“Too often, survivors of this kind of violence are re-victimized through the legal system as they are forced to tell their abuse stories over and over, and justify their experience as a victim,” says Marina Giacomin, executive director of CLG.

“This program will help them make decisions about how they want to heal from the assault, and sometimes that means not going through the stress of the legal system.”

Chen says it’s a holistic program that provides advice and support from a lawyer and an advocate that specializes in trauma response.

“They support survivors of all genders and orientations, in ways that respect their race, colour, ethnicity, their health, or disabilities, and any spiritual and cultural values they have. Help them to understand what options are out there in the legal system, and choose what is right for them.”

Survivors of sexual violence who would like more information can visit CLG’s website.

What happens next

Chen says the Supreme Court judgement states the federal government can choose to pass laws designed to hold people responsible for criminal behaviour if they are intoxicated.

Following the ruling last month, federal Justice Minister David Lametti said the government was exploring its options.

Bill C-28 was introduced this past Friday. According to Lametti, it’s meant to “close the loophole” and amend the Criminal Code for self-induced extreme intoxication.

The amendments will “ensure that individuals who consume drugs and/or alcohol in a criminally negligent manner are held criminally responsible if they harm others while extremely intoxicated”, reads a press release.

It’s expected the bill will pass, with a study on how to implement it taking place this fall.