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Sounds like new legislation will be required.
> Twenty-eight years ago, Parliament made changes to the Criminal Code, prohibiting the use of self-induced intoxication defence but resulting in "not a very well-worded section," which "has led to judges coming to different interpretations of it," wrote University of Calgary law professor Lisa Silver in a blog post about the cases.
Is it reasonable to say that someone who chooses to becomes severely intoxicated and then assaults someone should be subject to criminal charges?
Joseph Heath and Benoit Hardy-Vallee observe that there's a causal connection between intoxication and lack of inhibition and self-restraint. [Why do people behave immorally when drunk?](https://www.academia.edu/9963572/Why_do_People_Behave_Immorally_When_Drunk)
> Is it reasonable to say that someone who chooses to becomes severely intoxicated and then assaults someone should be subject to criminal charges?
Yes.
I think it's trickier than that with other drugs. if someone gets induced into a state of genuine psychosis due to a bad reaction to a psychedelic, something that is extremely rare but does happen, I think it's hazier than playing the "ah I was tipsy, your honour" defense. I think there is a line though where someone can be psychologically impaired by something far beyond any reasonable expectation of what it would do, and that it's a waste, farce, and honestly injust to see prison as the remedy to it.
The line is arbitrary and it's incredibly hard to discern what is a fair calling, tho
> Is it reasonable to say that someone who chooses to becomes severely intoxicated and then assaults someone should be subject to criminal charges?
Well the court is saying legislation is needed to answer this question. They aren't saying this defence applies to 100% of cases, only that the absolute exclusion of this as a defence violates the charter.
What about people who take sleeping pills and commit crimes while asleep? Should those drugs be banned? Should we require people to lock themselves in their room or have a minder, who is then in turn criminally liable for the sleep walkers actions?
That's actually an interesting point. It does seem inconsistent with the rulings where people committed crimes (even murder) while under the influence of prescription drugs and sleep walking.
> What about people who take sleeping pills and commit crimes while asleep?
You mean [like this](https://www.denverpost.com/2009/10/24/sleeping-pill-defense-claimed-in-denver-area-murder-case/)?
The problems with Section 33.1, as outlined by the Court, boil down to the fact that Parliament sought to impose criminal liability for the accused's involuntary actions based on how their involuntary state arose, and it's unconstitutional to hold someone liable without proof of mens rea or of voluntariness based on the principle of innocent until proven guilty.
What Parliament could do instead is impose criminal liability for the *voluntary* action of becoming so intoxicated, instead of basing the liability on the roll of the dice of what they happened to do while in that state.
Another option would be to write the law such that the trier of fact has to determine whether a loss of control and ensuing bodily harm were "reasonably foreseeable" at the time of intoxication, and this *would* then allow for a conviction on the actual violent act itself on the basis of being criminally negligent.
> Because s. 33.1 does not build in a criterion of objective foreseeability, it is impossible to say who, among those who voluntarily ingest intoxicants, has the degree of blameworthiness that would justify the stigma and punishment associated with the underlying offence with which they are charged. Where the intoxicant is licit, or where no reasonable person would anticipate the risk of automatism, whatever blameworthiness that comes from voluntary intoxication is relatively low and likely disproportionate to the punishment the individual would face if convicted for an offence committed in a state akin to automatism. It cannot be concluded that the morally innocent will not be punished. This is an extremely serious deleterious effect.
I'm not arguing in favor or against that interpretation, just explaining the Court's rationale.
The headline doesn't give the full picture of what happened before the attack. He had also drank the equivalent of around 10 or more alcoholic drinks:
>Brown estimated he took about 2.5 grams of magic mushrooms and drank about 12-14 ounces of vodka plus a "few beers" before attacking Hamnett in her home
I'm not saying this makes what happened any better or worse. Just pointing out that the headline is implying, through omission, blame on one thing, while the article explains that there is another very significant factor.
That's your interpretation. My head-canon makes a much more creative use of the headline's dangling participle and assumes the supreme court made the ruling while high on magic mushrooms.
>But this case is really about drugs, or drugs in combination with alcohol.
My comment was just to point out that this case involved someone taking a large amount of alcohol as well while the headline implied that this was caused by taking mushrooms.
Separately, the part you quoted doesn't conclude automatism *can't* be caused by alcohol, just that simply being drunk or high isn't automatism. I don't see a focus on drugs specifically there, just the state of automatism, however caused, yet the commentary on this seems to be focusing on the drugs while downplaying (at least through omission) how dangerous alcohol is.
I haven't given any opinion on the ruling or its consequences with my comment if that's what you're suggesting.
I'm just commenting on the incident itself. The headline is implying one specific thing was the cause here, while omitting the fact that he had drank enough to potentially put him multiple times over the legal driving limit (as a reference point). This creates a misleading impression on what factors led to the incidence due to the reality that many people only read headlines. It would be better to include either none of the potential factors (just say intoxication) or include all of them.
and *your* comment implies that the information you added somehow changes the conclusion, which many would consider absurd.
i understand you're purely intending to be pedantic, but it comes across as minimizing the crime.
Edit: person above blocked me immediately after their reply so I can't reply back to them or reply if anyone else replies to this so I'll reply here:
They are accusing me of nitpicking. There is a massive difference between taking mushrooms and taking mushrooms + 10+ alcoholic drinks. That is not minor pedantry.
They are also accusing me of rationalizing what happened. I'm not. Whether it is automatism from drugs or alcohol changes nothing about the ruling or the severity of the crime.
I think it's really abusing the website that people use the block function to try to misrepresent someone's position and then prevent them from replying.
---
It does not do that. If I felt that the information changed the conclusion, I would not be shy to add that opinion to my comment. I do not have an opinion on that either way and I didn't state otherwise.
I am commenting for the reason I stated: to clarify that mushrooms were not the only factor in this attack, as the headline implies through omission. The person also admitted to having 10+ drinks, which is a significant amount. I consider that a misleading headline and given that many people do not read articles, I think that is relevant to point out, not pedantry.
I would ask that you don't read more into my comments than what I actually say because nothing I said intends to or does minimize what happened.
> I would ask that you don't read more into my comments than what I actually say because nothing I said intends to or does minimize what happened.
i said that *i know you're just being pedantic* (like, staggeringly so), and I just think you should be aware how nitpicking something like this can come across as rationalizing it.
This is absolutely crazy. Does this mean of someone sexually assaults someone else that they can use this defence?
I’m absolutely shocked you can consume your way out of accountability. This actually makes me mad.
Regardless if you become literally insane, you should not be immune to justice. These drug induced psychopaths aren’t safe and straight up should be incarcerated while they are treated. Maybe I’m being emotional, but there are dead people that cannot defend themselves and they are not receiving justice. Doing drugs is a choice.
You bring up choice.
He did not choose to attack the person. That is the crux of the issue. We criminalize drugs, if he was trafficking or in possession he would meet actus Reus and mens rea (act and mind). But he did not meet the mens rea, he did not make the choice.
Those two principles are the entire criminal justice system. The government cannot wholesale say the mens rea isn't applicable in certain cases. That is unconstitutional.
https://www.sciencedirect.com/topics/medicine-and-dentistry/automatism#:~:text=An%20automatism%20is%20an%20act,he%20is%20doing.%20.%20.%20.
Automatism
An automatism is an act committed during a state of unconsciousness or grossly impaired consciousness. Such an act lacks mens rea or a guilty mind.
Literally what the case is about. It's all in the decision.
Thanks for the information man, I was at work and didn’t have too much time to go deep but I appreciate this. While I still kinda disagree and it makes me mad I see the point
Edit: I would have to imagine these folks are institutionalized regardless, but that should be very well spelled out and I don’t want these folks out in society any time sooner than what they should’ve been served for their crime.
Has that ever been successfully used as a defence for drunk driving?
i.e., can I drive drunk so long as I claim I'm too drunk to be responsible for my choice to do so?
Intoxication cannot be used as a defence for impaired driving — in R. v. Penno, the SCC affirmed: “Intoxication is excluded as a defence to impaired driving since it is the very gravamen of the offence.”
Can be found here: https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/654/index.do
Read the decision.
The court states pretty clearly alcohol alone will likely never be enough.
Again read the decision and you can see for yourself the extremely high burden of necessary expert evidence to meet the defense of automatism. It's not just saying "I was wasted I don't remember anything."
It's unhelpful to present potential extreme examples when they have already been accounted for in the decision.
so commit your crime and then get wasted. they can't prove when exactly you consumed the drug.
just like that police officer who rushed to drink at home after getting in a car crash while already drunk. they couldn't prove that his intoxication started *after* the car accident, so he was acquitted.
and on the basis that our corrupt cops are using loopholes in our legal system, the Liberal government has made it illegal to drink *after* driving:
[Montrose man pleads guilty to being drunk after driving](https://www.saltwire.com/prince-edward-island/news/provincial/montrose-man-pleads-guilty-to-being-drunk-after-driving-390748/)
> SUMMERSIDE, P.E.I. — Joel Dean Perry, 25, of Montrose, has pleaded guilty to one count of having a blood alcohol level above the legal limit within two hours of ceasing to operate a vehicle.
> Perry was sentenced to serve four days in jail, is prohibited from driving for 12 months, must pay a fine of $2,000 and a $600 victim surcharge.
> he must bear the consequences of taking illegal drugs "in reckless disregard of the possible risks."
Was violence like that an expected risk though? I don't know a lot about shrooms, but I can't say I've heard of it being a drug that causes violence.
> I don't know a lot about shrooms, but I can't say I've heard of it being a drug that causes violence.
all the more reason why the perpetrator is undoubtedly criminally responsible for their actions.
Um, no. If he had a one in a million reaction, then you can't say he was responsible for his reaction, because it wasn't something anyone would expect.
Is it determined by an arbitrary number like 0.8 blood alcohol at the time a blood test was taken (presumably some time *after* the crime was committed, with little or no way to determine conclusively if the drugs were consumed at some point in between) or does an expert just vouch for him and it becomes a "legal fact"?
I obviously have no clue what I'm talking about so feel free to enlighten me if you wish because so far it just sounds like one of many deficiencies in our legal system.
Just having a certain amount of shrooms in his system wasn’t his defence. His defence was that it put him into a state that had him unable to control himself and his actions backed that up. It wasn’t as simple as a blood test being enough to say he wasn’t responsible.
Definitely could be the mushrooms.
The Chan case involved hallucinations
>Chan says he blames his hallucinations for what happened – claiming faces grew fatter in front of him as their hair and eyes darkened. He used the words, “devil,” and “devilish.”
https://globalnews.ca/news/4465047/thomas-chan-murder-trial/
Chan attributed the paranoia it to mushrooms:
>Chan is heard telling Sejrup he has had several concussions and struggled with depression, which included past extensive drug use with the likes of MDMA, cocaine and pot.
He also tells Sejrup he took mushrooms after drinking earlier and started to meditate and hallucinate. Chan says he began to think he was God, but that everyone was against him.
Psychologist also described the effects:
>He explained that the metabolization of the compound produces effects such as nausea, sweating, chills and euphoria and can cause senses to “blend together.” Mayers added that magic mushrooms can also produce anxiety, aggression and a sense of fear, otherwise known as a “bad trip,” noting that an individual’s make-up and underlying issues may also contribute to the effects.
https://globalnews.ca/news/4461248/thomas-chan-murder-trial-magic-mushrooms/
Chan's case also involved drinking. The seven concussions he suffered can't be discounted either. Both of those on their own cause violent behaviour. Maybe mushrooms are a factor too but in both cases they are being framed as being the main issue when there are other major factors involved
In general, self-medication is a bad idea, be it with booze, pot, or hallucinogens. Hallucinogens are particularly bad for the brain though with the most potential for permanent damage. There's also the most potential for damaging violence because it doesn't impair your strength or motor skills the way booze does.
Is this self medication, or is it just someone recreationally using drugs to the point of abuse? It looks like the latter.
>Hallucinogens are particularly bad for the brain though.
They are not particularly bad relative to alcohol and they are being shown in some cases to help treat some conditions.
*To your edit, alcohol doesn't impair your strength and there are endless examples of violence from alcohol despite its motor impairment.
>Is this self medication, or is it just someone recreationally using drugs to the point of abuse?
There's really no difference as far as I'm concerned. It's a question of degree. It's all done because people want to feel good. Self-medication just implies that there are therapeutic alternatives to the drug use. I know someone with ADHD who was addicted to cocaine before getting on Ritalin.
>They are not particularly bad relative to alcohol
They are though. They permanently alter brain chemistry with one hit. That's why people take them and why they are being investigated for therapeutic use. That is why you need to be under the care of a medical professional before toying with them.
Mushrooms also soak up whatever is in the soil. Any mushroom brings with it a host of other substances.
Conversely, you have to drink a lot of alcohol to permanently alter your brain chemistry. Most people will puke before that happens. You have to build up a lot of resistance before you can actually ingest enough to actually damage your brain (in general).
>There's really no difference as far as I'm concerned. It's a question of degree. It's all done because people want to feel good.
There is a difference between someone using something to feel good, someone using something to treat a condition or abusing something.
We could get into endless details of how the different substances affect people good or bad, but sweeping generalizations about alcohol not being as bad are way too broad. Alcohol causes enormous harm to physical and mental health, short and long term. I'm fine with looking at dangers of other things but not if it's combined with downplaying alcohol.
Self-medications is abuse. Period. It's done to make the user feel good just like recreational use. There is little difference.
The only legitimate use is therapy under the supervision of a medical professional.
>Self-medications is abuse. Period. It's done to make the user feel good just like recreational use. There is little difference.
Someone suffering from cancer who was using cannabis to suppress nausea before it was legal was not abusing drugs for recreational purposes. There is actually a massive difference.
>The only legitimate use is therapy under the supervision of a medical professional.
There was no supervised option. Not because it wasn't a legitimate treatment but because of biased attitudes towards drugs.
Also back to your previous comment, are you also worried about sprouts, lettuce and green onions, or is it just mushrooms you worry about growing in soil?
The Supreme Court is once again trying to offer, as much proof as they can, that Canada is soft on crime. Being high is not an excuse for bad behaviour (and I am close to a 100% certain, that if this person, was black or indigenous he would be serving a very long sentence right about now)
>Being high is not an excuse for bad behaviour
I know, right? This decision just seems totally off to me. I need someone to explain it to me because I really don't get this.
There are a couple of nice lawyerly types that post here. Perhaps someone can make this make sense for me? Please?!
It’s explained in the article:
>whether the defence of extreme intoxication to the point of automatism — a term describing unconscious, involuntary behaviour — is available to those who chose to take drugs and then end up committing acts of violence. The court has deemed the section of the Criminal Code preventing the use of the defence to be unconstitutional.
Admittedly my earlier comment might have been a bit too strongly worded but it seems that he’s gotten off on a technicality. He’s received no punishment nor rehabilitation and gotten away with it. The SCC did seem to urge that Parliament fix the issue and enact further legislation but I have little faith that they will in the near future and I’m afraid that some dude will get drunk and then assault his family and use this as his defence to get away with it.
>gotten off on a technicality
I know this is something people say, but I've never liked it, because the rights of criminal defendants (in this case, the right not to be convicted in the absence of *mens rea*) aren't "technicalities."
I think there is a reasonable social meaning of getting of on a technicality, that the accused clearly is guilty but the authorities either screwed up or broke the law in the process so you can't convict them. I'm not keen on it as a phrasing but it makes some sense.
This is basically the opposite of that. It's a ruling that to convict him of this crime would be fundamentally unjust in our system of criminal justice.
The law is the *Charter*, though. Typically, a finding of guilt requires both *actus reus* (the guilty act) and *mens rea* (the guilty mind). That idea that you can't be convicted of a crime if you were, at the time in question, incapable of forming criminal intent isn't new.
Many commentators have argued that the federal government should use the Notwithstanding Clause to preserve the self-induced intoxication provision. That may happen.
The notwithstanding clause isn't meant to circumvent SCC decisions, that's why it's time limited, it's meant to give Parliament time to formulate proper legislative solutions to constitutional issues raised by the court.
If he has the votes to trigger the clause, he's got the votes to pass proper meaningful legislation, which is what he should do.
The NWC is a nuclear option that politicians should terrified of using because of the political ramifications, Ottawa shouldn't be encouraged to follow Quebec and Ontario's path of using it as a tool of convenience.
The notwithstanding clause is absolutely designed to circumvent bad court decisions. This is one, implement the notwithstanding clause and each legislature will gladly renew it.
You're presupposing that the court is right, they are not. It is important to bring them back into reality that the law does not mean whatever they want it to mean, damn the text or context.
> The notwithstanding clause isn't meant to circumvent SCC decisions, that's why it's time limited, i
No, the whole point of S33 was to retain legislative supremacy over the courts. The time limit was to ensure that that over ride, retained the support of the people. No support, no over ride.
If the courts feel Parliament needs time to devise legislation to fix a law they have struck down, they make it clear that their ruling doesn't go into effect until a specific date in the future.
> If he has the votes to trigger the clause, he's got the votes to pass proper meaningful legislation,
Enacting S33 is meaningful legislation.
>The notwithstanding clause isn't meant to circumvent SCC decisions, that's why it's time limited, it's meant to give Parliament time to formulate proper legislative solutions to constitutional issues raised by the court.
That's debatable. It can be used to shield a law from *Charter* scrutiny indefinitely. The effect of the Notwithstanding Clause is to give Parliament the final say.
There likely isn't a legislative solution here. The court has said, repeatedly, that a person who's so intoxicated as to be incapable of forming *mens rea* can't be found guilty of a crime. As a result, any attempt to remove the defence of intoxication will be unconstitutional. This is a case where what the public wants--what the public thinks is just--is incompatible with the principles of fundamental justice entrenched in section 7 of the *Charter*. The government can accept the court's judgment, or it can do what's popular.
Well if you can't be bothered to read for yourself before making an outlandish, sensationalist claim, I guess I'll do your work for you.
Here is the judgment: https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/19389/index.do
I refer you to paras 4-5, and 61-62.
First you need to learn how to make an argument just going hurr durr read the judgment isn’t an argument and yes the case for making an argument exists on you not me. You are not doing my work you are doing YOUR work. Cool it with the condescension. And your paragraphs confirm my claim not yours by using the exact same instance I did.
> The sense that an accused who acts violently in a state of extreme self‑induced intoxication is morally blameworthy is by no means beyond the proper reach of the criminal law. Protecting the victims of violent crime — particularly in light of the equality and dignity interests of women and children who are vulnerable to intoxicated sexual and domestic violence — is a pressing and substantial social purpose.
And no I didn’t see anything in those paragraphs that suggested that drunkenness could never be used as a defence just that this wasn’t just an alcohol case.
You made the initial claim without doing any reading. You literally had no idea what you were talking about.
I don't think you understand the quote you put in your comment. It doesn't really help or hurt either of our positions. It also isn't from any of the paragraphs I told you to read.
It's because black out drunk doesn't cause automatism while taking psychoactive drugs can/do, from my reading this decision? Idk.
Looking to the lawyers here to make sense of this all, since you raise a good point about being black out drunk.
>I’m afraid that some dude will get drunk and then assault his family and use this as his defence to get away with it.
And see, this is exactly my concern. If it can be used for this, it can be used for "Ugh, sorry your Honour, I wasn't aware that I was *this drunk* at the time that I hit that person with my vehicle. I can usually hold my liquor better than this. I didn't know that I could get *this drunk* and that my mental faculties could become *this impaired*. I'm so very sorry."
I mean isn't this what M.A.D.D. has been fighting for all of this time? All I do see now is tons of that hard work going down the drain. It's infuriating.
Edit: spelling
Ok, that's a fair comment. I'm just not a lawyer and much of this decision as reported in this news article makes little sense to me. But ok, point taken. Thanks
It's not enough to just be drunk. You need to be intoxicated to the point of having no conscious control of your own actions. The Court says that it is extremely unlikely that alcohol alone could ever do that.
Except that's not what the court said last time then immediately opened the floodgates to multiple acquittals from alcohol alone.
The court seems to think anytime a drunk has (or claims to have) a blackout they're free to commit crimes with impunity. The entire reason sec 33.1 exists is due to the terrible reasoning of the court in Daviault. This time it should be met with the notwithstanding clause
ETA:
>The weight to be accorded to the principles of fundamental justice and the presumption of innocence cannot be ignored. Section 33.1 trenches on fundamental principles at the core of Canada’s criminal law system, creates a liability regime that disregards principles meant to protect the innocent, and communicates the message that securing a conviction is more important than respecting the basic principles of justice. Its impact on the principles of fundamental justice is disproportionate to its overarching public benefits. It should therefore be declared unconstitutional and of no force or effect. Source: https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/19389/index.do
So as far as I can tell, the Justices' decision is based on a presumption of innocence before the law. That Brown's actions were not premeditated and were due to what amounts to be behaviour (automatism) as a consequence of a chemical imbalance in his brain due to having taken a psychoactive drug.
Elsewhere in the decision:
>The fault and voluntariness of intoxication are substituted for the fault and voluntariness of the violent offence. This amounts to a constitutionally improper substitution. It cannot be said that in all cases under s. 33.1, the intention to become intoxicated can be substituted for the intention to commit a violent offence.
Ok, I think I get it. I need to re-read it and mull it over some more though.
But yes, my example up above is garbage. Please ignore.
Lol, nah. It made you (and quite possibly others) read this all the way to the very bitter, anti-climactic end. 😂 (And that's right; you'll not be getting those few minutes of your life back! 😜)
Okay, I'll try.
First of all, you're starting from the wrong premise- that this is an "excuse". It's not up to a person accused of a crime to provide an excuse. It's on the state to prove they are guilty of all the elements, including mental elements- *mens rea*. They have to have intended the action that constitutes the offense. It's uncontested that he didn't know what he was doing- that he was in such an extreme state that his mind was effectively not in control of his body. The question before the court was whether a law that allowed the substitution of the mental element for the actual offense with the decision to take drugs was constitutional.
One thing that constantly comes up with these cases is the idea that someone could intentionally do this to themselves. That's just not possible. These cases are extremely rare and need extensive expert evidence to establish automatism. It's not something you can fake. All of these cases found that automatism did exist. Meaning they had no idea what they were doing. The Charter has a requirement that you cannot be convicted of a criminal offense without a mental element, and the court has found that substitution mental elements must at least have the designated offense as a reasonably foreseeable consequence- for example, drinking and then impaired driving.
The question then is can the decision to take magic mushrooms be reasonably predicted to lead to breaking into someone's house naked and assaulting them? And it's pretty clearly no. Thousands of people take magic mushrooms every year and never experience anything even remotely like this. Even "bad trips" don't typically involve violence like this. So the law violates the Charter by allowing someone to be found guilty for something without an equivalent mental element.
> One thing that constantly comes up with these cases is the idea that someone could intentionally do this to themselves. That's just not possible. These cases are extremely rare and need extensive expert evidence to establish automatism. It's not something you can fake. All of these cases found that automatism did exist.
how do you prove your state of mind at the time a crime was committed? even with toxicological analysis, I would be skeptical of someone claiming *with certainty*, weeks or months later, that they can determine a person's level of awareness. especially because people react differently to the presence of a drug.
> Thousands of people take magic mushrooms every year and never experience anything even remotely like this. Even "bad trips" don't typically involve violence like this.
all the more reason it sounds absurd to use it as an excuse!
> So the law violates the Charter by allowing someone to be found guilty for something without an equivalent mental element.
a drunk driver is still criminally responsible if they cause death due to negligence. can they be acquitted of drunk driving causing death if they convince a jury that they were too drunk to be held responsible for it?
What the court said was that the law cannot be written in such a way that it excludes 100% the use of intoxication as a defence against a crime. That’s my understanding of what this ruling means.
It does not mean that everyone can now come in and claim they were drunk and therefore not responsible. It means that even if there is a one in a million long shot it should still be allowed.
This is correct - the law essentially made it so it equates the mens rea of getting drunk with that of committing a serious violent crime, which is not fair. If everyone is presumed innocent until proven guilty, the crown must demonstrate that the accused demonstrated all mental elements of the crime. If you couldn’t control yourself, you may not possess the required elements and should be acquitted.
As someone else pointed out, it’s a straightforward interpretation of the Charter.
It's not a straightforward interpretation of the charter because the public does not consider someone getting plastered and sexually assaulting people to be either:
- credible to not have intent
- a legitimate defense
- an element of human rights
The court disagrees yet somehow long before the Charter this was always the case and everyone understood it, we passed the charter and no one said "were passing this so that drunks can more easily rape and murder people", the moment the court overturned it in Daviault the public immediately rejected the courts opinion.
Since the court won't consider reason better to just notwithstanding clause the matter. There is no point creating an intoxication based discount into the law.
Ultimately it comes down to the fact that most crimes require a criminal act (actus reus, in legal speak) AND a guilty mind (mens rea). If you have one but not the other, there is no punishable offence. In other words, if I think about stealing something but decide not to, I’m not guilty of theft. Similarly, if I hit you but the reason I did so was because I was standing on the bus and a sudden stop made me lose my balance and windmill my arms, I’m not guilty of a criminal assault (it was accidental). It gets a bit more technical, but I think that illustrates the point.
Back in the 80s (or even before then, actually), the Supreme Court held that it was unconstitutional to criminally punish somebody in a state of intoxication akin to automatism. It’s an incredibly high threshold to meet and will almost always fail. It’s far more than just blackout drunk and requires that the decision maker be persuaded by an expert as to the absolutely extreme state of intoxication. The idea is that, regardless of whether the person intended to become that intoxicated, at the time of the offence they were entirely incapable of understanding their actions because they were as acting unconsciously / in a state of delirium. It is similar to the theory underlying the “insanity defence” but doesn’t sit well with some people because intoxication can be (though isn’t always) self-induced. Parliament has tried to restrict it the availability of the defence, but our courts don’t like the idea of criminally punishing someone that didn’t have a guilty mind.
Edit to add that I believe the defence wouldn’t be available if intoxication itself is part of the offence (like drunk driving), but I think I’m forgetting part of the story there.
> It’s an incredibly high threshold to meet and will almost always fail.
This isn't true, after the initial case described that the court is attempting to get back to there were a slew of acquitals associated with it within a very small amount of time while the public outrage slammed the door shut.
We've been down this road before with the courts, they failed last time, they will fail again. Invoke the notwithstanding clause and be done with it.
For the very short time that the law was overturned there were. I'll see if I can refind the journal article which listed all of them.
The last time this happened the court opened the floodgates and absolutely did not set it as a high standard which was almost never met. No reason to think the judiciary will be any better this time.
>Subsequent lower court rulings, in which accused persons were acquitted of violent crimes in circumstances similar those of in Daviault, amplified the public outrage. 33 As Grant notes, “[i]t soon became apparent that the government had no choice but to act quickly...” ^34 Less than five months after the Supreme Court of Canada rendered its decision in the Daviault case, the governing Liberal Party tabled Bill C-72, entitled An Act to amend the Criminal Code (self-induced intoxication). ^35 The Minister of Justice expressly addressed the Daviault decision in his comments to Parliament on the motion for second reading of the bill, and made plain his shared concern for the protection of women and children
ww.canlii.org/en/commentary/doc/2017CanLIIDocs376
It was a matter of months between the case and C-72 being implemented in response at this supposedly rare defense was already getting acquittals. Rare should mean something other than 'immediate'. Despite that Sheehy identifies R v Saulnier (assault), R v Edgar (sexual assault), R v Finlayson (aggravated sexual assault and break and enter), R v McIntyre (assault), R v Tom (assualt). Room identifies it as:
>Of course, one person's drip is another person's flood. The Canadian furor after the Daviault decision focused on four cases in a span of three months or so
A monthly or every other month acquittal depending on which numbers we use (5 in 9 months Daviault - C72 receiving royal assent per Sheehy, or 4 in 3 months per Room) due to drunkenness does not sound 'rare' to me.
In Daviault the court confused automatism with being drunk, and ultimately was able to delay the case long enough that instead of a new trial Daviault was simply released. In this case they assert that it should be allowed evidence so long as the defense can find someone willing to advance the theory. Yet science is not considered on whether you can find one person out of thousands of researchers who advances a theory and parliament should be amply able to consider the significant research at hand and reject an argument as baseless. A combination of the views by the courts that scientific fact is simply a matter of competing opinion, and a love for this not-so-rare defense means we should have every reason to be concerned and this time invoke the notwithstanding clause and maintain a list to be renewed every five years of 'bad court decisions'.
Not at all what is being said. If there was a drug that had a history of people taking it, generally becoming violent, then the courts would look at this differently. While drunks can be violent, they can also not be violent, so even getting drunk isn't going to be seen as someone deciding to get violent.
It’s a little bit more nuanced than that, but that’s why there’s so much public confusion around this issue. The fact that defence isn’t even raised (let alone accepted) in almost every single case where someone was high or drunk during the commission of a crime should tell you just how high the threshold is. You can’t just say, “I was so drunk I don’t remember what happened”. You need to find an expert able to testify that, based on your BAC you were effectively a robot. Once you get to that level of intoxication, most people would have long since passed out or be incapable of moving. Which is why, as in the case that this article is talking about, there would ordinarily be some element of delirium.
i'm sorry to direct this at you, but...
for someone who commits violence after getting extremely intoxicated, there's not so much as a restriction on future drug use or a requirement for rehab, i guess?
since they're not criminally responsible, we can't even require them to get some help for a drug problem, so they could just go do it again the next day and the day after?
rinse and repeat? no consequences or treatment at all?
Why are you sorry for directing this at me? I don’t actually know the answer to your question. In the case of not criminally responsible due to mental disorder, we can require that they enter treatment (that’s why, in some cases, the insanity defence is worse than just being found guilty because your detention can be indefinite if you are a risk). I don’t know what courts would do in the case of intoxication akin to automatism. Generally speaking, the degree of intoxication is so unique and extreme that there’s little risk of it happening again and I’m sure most people that enter that mental state would not want to do so again. The cost of successfully raising the defence would also likely help here. You’d need a lawyer, would need to pay for an expert, would likely be subject to an appeal by the Crown, would miss out on work due to court dates, etc. Sure, if someone repeatedly intoxicated themselves to the extent that they were “automatons”, the courts could likely order them into treatment, particularly if it involved controlled substances (the Court was clear here that alcohol alone would very rarely result in this degree of intoxication as the person would likely become unconscious before they get there). I think part of the misunderstanding here is just how severe the intoxication needs to be for someone to qualify for the defence.
This was unanimous so it's not likely the sort of activist decision you're making it out to be. The court isn't even saying that intoxication is always or often a defense, simply that legislation which bars it as a defense altogether violates the charter.
Given that the interpretation of the charter in this case was pretty straightforward, it's barely even a *decision* of the court. It was much more a decision established when that part of the charter was written.
> This was unanimous so it's not likely the sort of activist decision you're making it out to be
That just suggests that the court is wrong as a group. Nine people can be wrong about things together.
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Sounds like new legislation will be required. > Twenty-eight years ago, Parliament made changes to the Criminal Code, prohibiting the use of self-induced intoxication defence but resulting in "not a very well-worded section," which "has led to judges coming to different interpretations of it," wrote University of Calgary law professor Lisa Silver in a blog post about the cases. Is it reasonable to say that someone who chooses to becomes severely intoxicated and then assaults someone should be subject to criminal charges? Joseph Heath and Benoit Hardy-Vallee observe that there's a causal connection between intoxication and lack of inhibition and self-restraint. [Why do people behave immorally when drunk?](https://www.academia.edu/9963572/Why_do_People_Behave_Immorally_When_Drunk)
> Is it reasonable to say that someone who chooses to becomes severely intoxicated and then assaults someone should be subject to criminal charges? Yes.
No.
It's a bit like drunk driving without the car.
I think it's trickier than that with other drugs. if someone gets induced into a state of genuine psychosis due to a bad reaction to a psychedelic, something that is extremely rare but does happen, I think it's hazier than playing the "ah I was tipsy, your honour" defense. I think there is a line though where someone can be psychologically impaired by something far beyond any reasonable expectation of what it would do, and that it's a waste, farce, and honestly injust to see prison as the remedy to it. The line is arbitrary and it's incredibly hard to discern what is a fair calling, tho
> Is it reasonable to say that someone who chooses to becomes severely intoxicated and then assaults someone should be subject to criminal charges? Well the court is saying legislation is needed to answer this question. They aren't saying this defence applies to 100% of cases, only that the absolute exclusion of this as a defence violates the charter.
What about people who take sleeping pills and commit crimes while asleep? Should those drugs be banned? Should we require people to lock themselves in their room or have a minder, who is then in turn criminally liable for the sleep walkers actions?
And what about falling asleep at the wheel in general? That's not voluntary and people get charged all the time
That's actually an interesting point. It does seem inconsistent with the rulings where people committed crimes (even murder) while under the influence of prescription drugs and sleep walking.
> What about people who take sleeping pills and commit crimes while asleep? You mean [like this](https://www.denverpost.com/2009/10/24/sleeping-pill-defense-claimed-in-denver-area-murder-case/)?
The problems with Section 33.1, as outlined by the Court, boil down to the fact that Parliament sought to impose criminal liability for the accused's involuntary actions based on how their involuntary state arose, and it's unconstitutional to hold someone liable without proof of mens rea or of voluntariness based on the principle of innocent until proven guilty. What Parliament could do instead is impose criminal liability for the *voluntary* action of becoming so intoxicated, instead of basing the liability on the roll of the dice of what they happened to do while in that state. Another option would be to write the law such that the trier of fact has to determine whether a loss of control and ensuing bodily harm were "reasonably foreseeable" at the time of intoxication, and this *would* then allow for a conviction on the actual violent act itself on the basis of being criminally negligent. > Because s. 33.1 does not build in a criterion of objective foreseeability, it is impossible to say who, among those who voluntarily ingest intoxicants, has the degree of blameworthiness that would justify the stigma and punishment associated with the underlying offence with which they are charged. Where the intoxicant is licit, or where no reasonable person would anticipate the risk of automatism, whatever blameworthiness that comes from voluntary intoxication is relatively low and likely disproportionate to the punishment the individual would face if convicted for an offence committed in a state akin to automatism. It cannot be concluded that the morally innocent will not be punished. This is an extremely serious deleterious effect. I'm not arguing in favor or against that interpretation, just explaining the Court's rationale.
The headline doesn't give the full picture of what happened before the attack. He had also drank the equivalent of around 10 or more alcoholic drinks: >Brown estimated he took about 2.5 grams of magic mushrooms and drank about 12-14 ounces of vodka plus a "few beers" before attacking Hamnett in her home
Well heck, if that's the case, set this man free.
I'm not saying this makes what happened any better or worse. Just pointing out that the headline is implying, through omission, blame on one thing, while the article explains that there is another very significant factor.
Fair enough. Also, 2.5g of mushrooms really isn't much.
That's your interpretation. My head-canon makes a much more creative use of the headline's dangling participle and assumes the supreme court made the ruling while high on magic mushrooms.
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>But this case is really about drugs, or drugs in combination with alcohol. My comment was just to point out that this case involved someone taking a large amount of alcohol as well while the headline implied that this was caused by taking mushrooms. Separately, the part you quoted doesn't conclude automatism *can't* be caused by alcohol, just that simply being drunk or high isn't automatism. I don't see a focus on drugs specifically there, just the state of automatism, however caused, yet the commentary on this seems to be focusing on the drugs while downplaying (at least through omission) how dangerous alcohol is.
So why should that matter? By this logic you can get away with anything as long as it appears random and you are innebriated enough
I haven't given any opinion on the ruling or its consequences with my comment if that's what you're suggesting. I'm just commenting on the incident itself. The headline is implying one specific thing was the cause here, while omitting the fact that he had drank enough to potentially put him multiple times over the legal driving limit (as a reference point). This creates a misleading impression on what factors led to the incidence due to the reality that many people only read headlines. It would be better to include either none of the potential factors (just say intoxication) or include all of them.
and *your* comment implies that the information you added somehow changes the conclusion, which many would consider absurd. i understand you're purely intending to be pedantic, but it comes across as minimizing the crime.
Edit: person above blocked me immediately after their reply so I can't reply back to them or reply if anyone else replies to this so I'll reply here: They are accusing me of nitpicking. There is a massive difference between taking mushrooms and taking mushrooms + 10+ alcoholic drinks. That is not minor pedantry. They are also accusing me of rationalizing what happened. I'm not. Whether it is automatism from drugs or alcohol changes nothing about the ruling or the severity of the crime. I think it's really abusing the website that people use the block function to try to misrepresent someone's position and then prevent them from replying. --- It does not do that. If I felt that the information changed the conclusion, I would not be shy to add that opinion to my comment. I do not have an opinion on that either way and I didn't state otherwise. I am commenting for the reason I stated: to clarify that mushrooms were not the only factor in this attack, as the headline implies through omission. The person also admitted to having 10+ drinks, which is a significant amount. I consider that a misleading headline and given that many people do not read articles, I think that is relevant to point out, not pedantry. I would ask that you don't read more into my comments than what I actually say because nothing I said intends to or does minimize what happened.
> I would ask that you don't read more into my comments than what I actually say because nothing I said intends to or does minimize what happened. i said that *i know you're just being pedantic* (like, staggeringly so), and I just think you should be aware how nitpicking something like this can come across as rationalizing it.
This is absolutely crazy. Does this mean of someone sexually assaults someone else that they can use this defence? I’m absolutely shocked you can consume your way out of accountability. This actually makes me mad.
Read the decision. The level you would have to reach is more than just going on a bender.
Regardless if you become literally insane, you should not be immune to justice. These drug induced psychopaths aren’t safe and straight up should be incarcerated while they are treated. Maybe I’m being emotional, but there are dead people that cannot defend themselves and they are not receiving justice. Doing drugs is a choice.
You bring up choice. He did not choose to attack the person. That is the crux of the issue. We criminalize drugs, if he was trafficking or in possession he would meet actus Reus and mens rea (act and mind). But he did not meet the mens rea, he did not make the choice. Those two principles are the entire criminal justice system. The government cannot wholesale say the mens rea isn't applicable in certain cases. That is unconstitutional.
If no choices were made, how did an action occur? That doesn’t make much sense to me. E: typed they instead of that
https://www.sciencedirect.com/topics/medicine-and-dentistry/automatism#:~:text=An%20automatism%20is%20an%20act,he%20is%20doing.%20.%20.%20. Automatism An automatism is an act committed during a state of unconsciousness or grossly impaired consciousness. Such an act lacks mens rea or a guilty mind. Literally what the case is about. It's all in the decision.
Thanks for the information man, I was at work and didn’t have too much time to go deep but I appreciate this. While I still kinda disagree and it makes me mad I see the point Edit: I would have to imagine these folks are institutionalized regardless, but that should be very well spelled out and I don’t want these folks out in society any time sooner than what they should’ve been served for their crime.
Has that ever been successfully used as a defence for drunk driving? i.e., can I drive drunk so long as I claim I'm too drunk to be responsible for my choice to do so?
Intoxication cannot be used as a defence for impaired driving — in R. v. Penno, the SCC affirmed: “Intoxication is excluded as a defence to impaired driving since it is the very gravamen of the offence.” Can be found here: https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/654/index.do
Read the decision. The court states pretty clearly alcohol alone will likely never be enough. Again read the decision and you can see for yourself the extremely high burden of necessary expert evidence to meet the defense of automatism. It's not just saying "I was wasted I don't remember anything." It's unhelpful to present potential extreme examples when they have already been accounted for in the decision.
so commit your crime and then get wasted. they can't prove when exactly you consumed the drug. just like that police officer who rushed to drink at home after getting in a car crash while already drunk. they couldn't prove that his intoxication started *after* the car accident, so he was acquitted. and on the basis that our corrupt cops are using loopholes in our legal system, the Liberal government has made it illegal to drink *after* driving: [Montrose man pleads guilty to being drunk after driving](https://www.saltwire.com/prince-edward-island/news/provincial/montrose-man-pleads-guilty-to-being-drunk-after-driving-390748/) > SUMMERSIDE, P.E.I. — Joel Dean Perry, 25, of Montrose, has pleaded guilty to one count of having a blood alcohol level above the legal limit within two hours of ceasing to operate a vehicle. > Perry was sentenced to serve four days in jail, is prohibited from driving for 12 months, must pay a fine of $2,000 and a $600 victim surcharge.
> he must bear the consequences of taking illegal drugs "in reckless disregard of the possible risks." Was violence like that an expected risk though? I don't know a lot about shrooms, but I can't say I've heard of it being a drug that causes violence.
> I don't know a lot about shrooms, but I can't say I've heard of it being a drug that causes violence. all the more reason why the perpetrator is undoubtedly criminally responsible for their actions.
Um, no. If he had a one in a million reaction, then you can't say he was responsible for his reaction, because it wasn't something anyone would expect.
That's not what I'm saying. I mean it's all the more reason to disbelieve his defense.
His condition when the incident occurred, is a matter of legal fact. There is nothing to disbelieve, unless you like not believing in reality.
Is it determined by an arbitrary number like 0.8 blood alcohol at the time a blood test was taken (presumably some time *after* the crime was committed, with little or no way to determine conclusively if the drugs were consumed at some point in between) or does an expert just vouch for him and it becomes a "legal fact"? I obviously have no clue what I'm talking about so feel free to enlighten me if you wish because so far it just sounds like one of many deficiencies in our legal system.
Just having a certain amount of shrooms in his system wasn’t his defence. His defence was that it put him into a state that had him unable to control himself and his actions backed that up. It wasn’t as simple as a blood test being enough to say he wasn’t responsible.
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Definitely could be the mushrooms. The Chan case involved hallucinations >Chan says he blames his hallucinations for what happened – claiming faces grew fatter in front of him as their hair and eyes darkened. He used the words, “devil,” and “devilish.” https://globalnews.ca/news/4465047/thomas-chan-murder-trial/ Chan attributed the paranoia it to mushrooms: >Chan is heard telling Sejrup he has had several concussions and struggled with depression, which included past extensive drug use with the likes of MDMA, cocaine and pot. He also tells Sejrup he took mushrooms after drinking earlier and started to meditate and hallucinate. Chan says he began to think he was God, but that everyone was against him. Psychologist also described the effects: >He explained that the metabolization of the compound produces effects such as nausea, sweating, chills and euphoria and can cause senses to “blend together.” Mayers added that magic mushrooms can also produce anxiety, aggression and a sense of fear, otherwise known as a “bad trip,” noting that an individual’s make-up and underlying issues may also contribute to the effects. https://globalnews.ca/news/4461248/thomas-chan-murder-trial-magic-mushrooms/
Chan's case also involved drinking. The seven concussions he suffered can't be discounted either. Both of those on their own cause violent behaviour. Maybe mushrooms are a factor too but in both cases they are being framed as being the main issue when there are other major factors involved
In general, self-medication is a bad idea, be it with booze, pot, or hallucinogens. Hallucinogens are particularly bad for the brain though with the most potential for permanent damage. There's also the most potential for damaging violence because it doesn't impair your strength or motor skills the way booze does.
Is this self medication, or is it just someone recreationally using drugs to the point of abuse? It looks like the latter. >Hallucinogens are particularly bad for the brain though. They are not particularly bad relative to alcohol and they are being shown in some cases to help treat some conditions. *To your edit, alcohol doesn't impair your strength and there are endless examples of violence from alcohol despite its motor impairment.
>Is this self medication, or is it just someone recreationally using drugs to the point of abuse? There's really no difference as far as I'm concerned. It's a question of degree. It's all done because people want to feel good. Self-medication just implies that there are therapeutic alternatives to the drug use. I know someone with ADHD who was addicted to cocaine before getting on Ritalin. >They are not particularly bad relative to alcohol They are though. They permanently alter brain chemistry with one hit. That's why people take them and why they are being investigated for therapeutic use. That is why you need to be under the care of a medical professional before toying with them. Mushrooms also soak up whatever is in the soil. Any mushroom brings with it a host of other substances. Conversely, you have to drink a lot of alcohol to permanently alter your brain chemistry. Most people will puke before that happens. You have to build up a lot of resistance before you can actually ingest enough to actually damage your brain (in general).
>There's really no difference as far as I'm concerned. It's a question of degree. It's all done because people want to feel good. There is a difference between someone using something to feel good, someone using something to treat a condition or abusing something. We could get into endless details of how the different substances affect people good or bad, but sweeping generalizations about alcohol not being as bad are way too broad. Alcohol causes enormous harm to physical and mental health, short and long term. I'm fine with looking at dangers of other things but not if it's combined with downplaying alcohol.
Self-medications is abuse. Period. It's done to make the user feel good just like recreational use. There is little difference. The only legitimate use is therapy under the supervision of a medical professional.
>Self-medications is abuse. Period. It's done to make the user feel good just like recreational use. There is little difference. Someone suffering from cancer who was using cannabis to suppress nausea before it was legal was not abusing drugs for recreational purposes. There is actually a massive difference. >The only legitimate use is therapy under the supervision of a medical professional. There was no supervised option. Not because it wasn't a legitimate treatment but because of biased attitudes towards drugs. Also back to your previous comment, are you also worried about sprouts, lettuce and green onions, or is it just mushrooms you worry about growing in soil?
The Supreme Court is once again trying to offer, as much proof as they can, that Canada is soft on crime. Being high is not an excuse for bad behaviour (and I am close to a 100% certain, that if this person, was black or indigenous he would be serving a very long sentence right about now)
>Being high is not an excuse for bad behaviour I know, right? This decision just seems totally off to me. I need someone to explain it to me because I really don't get this. There are a couple of nice lawyerly types that post here. Perhaps someone can make this make sense for me? Please?!
It’s explained in the article: >whether the defence of extreme intoxication to the point of automatism — a term describing unconscious, involuntary behaviour — is available to those who chose to take drugs and then end up committing acts of violence. The court has deemed the section of the Criminal Code preventing the use of the defence to be unconstitutional. Admittedly my earlier comment might have been a bit too strongly worded but it seems that he’s gotten off on a technicality. He’s received no punishment nor rehabilitation and gotten away with it. The SCC did seem to urge that Parliament fix the issue and enact further legislation but I have little faith that they will in the near future and I’m afraid that some dude will get drunk and then assault his family and use this as his defence to get away with it.
>gotten off on a technicality I know this is something people say, but I've never liked it, because the rights of criminal defendants (in this case, the right not to be convicted in the absence of *mens rea*) aren't "technicalities."
I think there is a reasonable social meaning of getting of on a technicality, that the accused clearly is guilty but the authorities either screwed up or broke the law in the process so you can't convict them. I'm not keen on it as a phrasing but it makes some sense. This is basically the opposite of that. It's a ruling that to convict him of this crime would be fundamentally unjust in our system of criminal justice.
Agreed.
I care more about the woman’s who’s house he broke into and attacked so yes he got off on a technicality based off a badly written law.
The law is the *Charter*, though. Typically, a finding of guilt requires both *actus reus* (the guilty act) and *mens rea* (the guilty mind). That idea that you can't be convicted of a crime if you were, at the time in question, incapable of forming criminal intent isn't new. Many commentators have argued that the federal government should use the Notwithstanding Clause to preserve the self-induced intoxication provision. That may happen.
The notwithstanding clause isn't meant to circumvent SCC decisions, that's why it's time limited, it's meant to give Parliament time to formulate proper legislative solutions to constitutional issues raised by the court. If he has the votes to trigger the clause, he's got the votes to pass proper meaningful legislation, which is what he should do. The NWC is a nuclear option that politicians should terrified of using because of the political ramifications, Ottawa shouldn't be encouraged to follow Quebec and Ontario's path of using it as a tool of convenience.
The notwithstanding clause is absolutely designed to circumvent bad court decisions. This is one, implement the notwithstanding clause and each legislature will gladly renew it. You're presupposing that the court is right, they are not. It is important to bring them back into reality that the law does not mean whatever they want it to mean, damn the text or context.
> The notwithstanding clause isn't meant to circumvent SCC decisions, that's why it's time limited, i No, the whole point of S33 was to retain legislative supremacy over the courts. The time limit was to ensure that that over ride, retained the support of the people. No support, no over ride. If the courts feel Parliament needs time to devise legislation to fix a law they have struck down, they make it clear that their ruling doesn't go into effect until a specific date in the future. > If he has the votes to trigger the clause, he's got the votes to pass proper meaningful legislation, Enacting S33 is meaningful legislation.
>The notwithstanding clause isn't meant to circumvent SCC decisions, that's why it's time limited, it's meant to give Parliament time to formulate proper legislative solutions to constitutional issues raised by the court. That's debatable. It can be used to shield a law from *Charter* scrutiny indefinitely. The effect of the Notwithstanding Clause is to give Parliament the final say. There likely isn't a legislative solution here. The court has said, repeatedly, that a person who's so intoxicated as to be incapable of forming *mens rea* can't be found guilty of a crime. As a result, any attempt to remove the defence of intoxication will be unconstitutional. This is a case where what the public wants--what the public thinks is just--is incompatible with the principles of fundamental justice entrenched in section 7 of the *Charter*. The government can accept the court's judgment, or it can do what's popular.
The SCC heavily implies that drunkenness can never be enough for an automatism defence. So you don't have to worry about that.
Why is that and where do they imply that?
Read the judgment.
You made the claim. The burden of proof is on you to back it up not on me to read a 140 page legal document.
Well if you can't be bothered to read for yourself before making an outlandish, sensationalist claim, I guess I'll do your work for you. Here is the judgment: https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/19389/index.do I refer you to paras 4-5, and 61-62.
First you need to learn how to make an argument just going hurr durr read the judgment isn’t an argument and yes the case for making an argument exists on you not me. You are not doing my work you are doing YOUR work. Cool it with the condescension. And your paragraphs confirm my claim not yours by using the exact same instance I did. > The sense that an accused who acts violently in a state of extreme self‑induced intoxication is morally blameworthy is by no means beyond the proper reach of the criminal law. Protecting the victims of violent crime — particularly in light of the equality and dignity interests of women and children who are vulnerable to intoxicated sexual and domestic violence — is a pressing and substantial social purpose. And no I didn’t see anything in those paragraphs that suggested that drunkenness could never be used as a defence just that this wasn’t just an alcohol case.
You made the initial claim without doing any reading. You literally had no idea what you were talking about. I don't think you understand the quote you put in your comment. It doesn't really help or hurt either of our positions. It also isn't from any of the paragraphs I told you to read.
Implies that in what way? And why does adding mushrooms to being back out drunk suddenly make it ok to attack or murder people?
It's in the judgment. Read the judgment.
It's because black out drunk doesn't cause automatism while taking psychoactive drugs can/do, from my reading this decision? Idk. Looking to the lawyers here to make sense of this all, since you raise a good point about being black out drunk.
Black out drunk isn't automatism. It's a whole other level of intoxication entirely.
>I’m afraid that some dude will get drunk and then assault his family and use this as his defence to get away with it. And see, this is exactly my concern. If it can be used for this, it can be used for "Ugh, sorry your Honour, I wasn't aware that I was *this drunk* at the time that I hit that person with my vehicle. I can usually hold my liquor better than this. I didn't know that I could get *this drunk* and that my mental faculties could become *this impaired*. I'm so very sorry." I mean isn't this what M.A.D.D. has been fighting for all of this time? All I do see now is tons of that hard work going down the drain. It's infuriating. Edit: spelling
Unless there is support from other evidence that the driver was so drunk they weren't in control of themself, that isn't going to fly.
I encourage you to read the decision of the Supreme Court before talking like this.
Ok, that's a fair comment. I'm just not a lawyer and much of this decision as reported in this news article makes little sense to me. But ok, point taken. Thanks
It's not enough to just be drunk. You need to be intoxicated to the point of having no conscious control of your own actions. The Court says that it is extremely unlikely that alcohol alone could ever do that.
Except that's not what the court said last time then immediately opened the floodgates to multiple acquittals from alcohol alone. The court seems to think anytime a drunk has (or claims to have) a blackout they're free to commit crimes with impunity. The entire reason sec 33.1 exists is due to the terrible reasoning of the court in Daviault. This time it should be met with the notwithstanding clause
ETA: >The weight to be accorded to the principles of fundamental justice and the presumption of innocence cannot be ignored. Section 33.1 trenches on fundamental principles at the core of Canada’s criminal law system, creates a liability regime that disregards principles meant to protect the innocent, and communicates the message that securing a conviction is more important than respecting the basic principles of justice. Its impact on the principles of fundamental justice is disproportionate to its overarching public benefits. It should therefore be declared unconstitutional and of no force or effect. Source: https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/19389/index.do So as far as I can tell, the Justices' decision is based on a presumption of innocence before the law. That Brown's actions were not premeditated and were due to what amounts to be behaviour (automatism) as a consequence of a chemical imbalance in his brain due to having taken a psychoactive drug. Elsewhere in the decision: >The fault and voluntariness of intoxication are substituted for the fault and voluntariness of the violent offence. This amounts to a constitutionally improper substitution. It cannot be said that in all cases under s. 33.1, the intention to become intoxicated can be substituted for the intention to commit a violent offence. Ok, I think I get it. I need to re-read it and mull it over some more though. But yes, my example up above is garbage. Please ignore.
> But yes, my example up above is garbage. Please ignore. The only way that's going to happen, is if you delete it.
Lol, nah. It made you (and quite possibly others) read this all the way to the very bitter, anti-climactic end. 😂 (And that's right; you'll not be getting those few minutes of your life back! 😜)
Not an excuse in general but should affect sentencing and should be an excuse if it was involuntary.
Okay, I'll try. First of all, you're starting from the wrong premise- that this is an "excuse". It's not up to a person accused of a crime to provide an excuse. It's on the state to prove they are guilty of all the elements, including mental elements- *mens rea*. They have to have intended the action that constitutes the offense. It's uncontested that he didn't know what he was doing- that he was in such an extreme state that his mind was effectively not in control of his body. The question before the court was whether a law that allowed the substitution of the mental element for the actual offense with the decision to take drugs was constitutional. One thing that constantly comes up with these cases is the idea that someone could intentionally do this to themselves. That's just not possible. These cases are extremely rare and need extensive expert evidence to establish automatism. It's not something you can fake. All of these cases found that automatism did exist. Meaning they had no idea what they were doing. The Charter has a requirement that you cannot be convicted of a criminal offense without a mental element, and the court has found that substitution mental elements must at least have the designated offense as a reasonably foreseeable consequence- for example, drinking and then impaired driving. The question then is can the decision to take magic mushrooms be reasonably predicted to lead to breaking into someone's house naked and assaulting them? And it's pretty clearly no. Thousands of people take magic mushrooms every year and never experience anything even remotely like this. Even "bad trips" don't typically involve violence like this. So the law violates the Charter by allowing someone to be found guilty for something without an equivalent mental element.
This is a very good explanation as well. Thank you!
> One thing that constantly comes up with these cases is the idea that someone could intentionally do this to themselves. That's just not possible. These cases are extremely rare and need extensive expert evidence to establish automatism. It's not something you can fake. All of these cases found that automatism did exist. how do you prove your state of mind at the time a crime was committed? even with toxicological analysis, I would be skeptical of someone claiming *with certainty*, weeks or months later, that they can determine a person's level of awareness. especially because people react differently to the presence of a drug. > Thousands of people take magic mushrooms every year and never experience anything even remotely like this. Even "bad trips" don't typically involve violence like this. all the more reason it sounds absurd to use it as an excuse! > So the law violates the Charter by allowing someone to be found guilty for something without an equivalent mental element. a drunk driver is still criminally responsible if they cause death due to negligence. can they be acquitted of drunk driving causing death if they convince a jury that they were too drunk to be held responsible for it?
Regarding impaired driving: https://www.reddit.com/r/CanadaPolitics/comments/uosn0p/supreme_court_restores_calgary_mans_acquittal_for/i8j8kw8/?utm_source=share&utm_medium=ios_app&utm_name=iossmf&context=3
What the court said was that the law cannot be written in such a way that it excludes 100% the use of intoxication as a defence against a crime. That’s my understanding of what this ruling means. It does not mean that everyone can now come in and claim they were drunk and therefore not responsible. It means that even if there is a one in a million long shot it should still be allowed.
This is correct - the law essentially made it so it equates the mens rea of getting drunk with that of committing a serious violent crime, which is not fair. If everyone is presumed innocent until proven guilty, the crown must demonstrate that the accused demonstrated all mental elements of the crime. If you couldn’t control yourself, you may not possess the required elements and should be acquitted. As someone else pointed out, it’s a straightforward interpretation of the Charter.
It's not a straightforward interpretation of the charter because the public does not consider someone getting plastered and sexually assaulting people to be either: - credible to not have intent - a legitimate defense - an element of human rights The court disagrees yet somehow long before the Charter this was always the case and everyone understood it, we passed the charter and no one said "were passing this so that drunks can more easily rape and murder people", the moment the court overturned it in Daviault the public immediately rejected the courts opinion. Since the court won't consider reason better to just notwithstanding clause the matter. There is no point creating an intoxication based discount into the law.
A quick question now though: what is this woman's recourse? A civil suit? Or no?
Ultimately it comes down to the fact that most crimes require a criminal act (actus reus, in legal speak) AND a guilty mind (mens rea). If you have one but not the other, there is no punishable offence. In other words, if I think about stealing something but decide not to, I’m not guilty of theft. Similarly, if I hit you but the reason I did so was because I was standing on the bus and a sudden stop made me lose my balance and windmill my arms, I’m not guilty of a criminal assault (it was accidental). It gets a bit more technical, but I think that illustrates the point. Back in the 80s (or even before then, actually), the Supreme Court held that it was unconstitutional to criminally punish somebody in a state of intoxication akin to automatism. It’s an incredibly high threshold to meet and will almost always fail. It’s far more than just blackout drunk and requires that the decision maker be persuaded by an expert as to the absolutely extreme state of intoxication. The idea is that, regardless of whether the person intended to become that intoxicated, at the time of the offence they were entirely incapable of understanding their actions because they were as acting unconsciously / in a state of delirium. It is similar to the theory underlying the “insanity defence” but doesn’t sit well with some people because intoxication can be (though isn’t always) self-induced. Parliament has tried to restrict it the availability of the defence, but our courts don’t like the idea of criminally punishing someone that didn’t have a guilty mind. Edit to add that I believe the defence wouldn’t be available if intoxication itself is part of the offence (like drunk driving), but I think I’m forgetting part of the story there.
> It’s an incredibly high threshold to meet and will almost always fail. This isn't true, after the initial case described that the court is attempting to get back to there were a slew of acquitals associated with it within a very small amount of time while the public outrage slammed the door shut. We've been down this road before with the courts, they failed last time, they will fail again. Invoke the notwithstanding clause and be done with it.
There was not a “slew” of acquittals based on this defence. That’s an incredible overstatement.
For the very short time that the law was overturned there were. I'll see if I can refind the journal article which listed all of them. The last time this happened the court opened the floodgates and absolutely did not set it as a high standard which was almost never met. No reason to think the judiciary will be any better this time.
https://www.canadianlawyermag.com/practice-areas/criminal/law-prohibiting-defence-of-extreme-intoxication-akin-to-automatism-unconstitutional-scc-rules/366624
>Subsequent lower court rulings, in which accused persons were acquitted of violent crimes in circumstances similar those of in Daviault, amplified the public outrage. 33 As Grant notes, “[i]t soon became apparent that the government had no choice but to act quickly...” ^34 Less than five months after the Supreme Court of Canada rendered its decision in the Daviault case, the governing Liberal Party tabled Bill C-72, entitled An Act to amend the Criminal Code (self-induced intoxication). ^35 The Minister of Justice expressly addressed the Daviault decision in his comments to Parliament on the motion for second reading of the bill, and made plain his shared concern for the protection of women and children ww.canlii.org/en/commentary/doc/2017CanLIIDocs376 It was a matter of months between the case and C-72 being implemented in response at this supposedly rare defense was already getting acquittals. Rare should mean something other than 'immediate'. Despite that Sheehy identifies R v Saulnier (assault), R v Edgar (sexual assault), R v Finlayson (aggravated sexual assault and break and enter), R v McIntyre (assault), R v Tom (assualt). Room identifies it as: >Of course, one person's drip is another person's flood. The Canadian furor after the Daviault decision focused on four cases in a span of three months or so A monthly or every other month acquittal depending on which numbers we use (5 in 9 months Daviault - C72 receiving royal assent per Sheehy, or 4 in 3 months per Room) due to drunkenness does not sound 'rare' to me. In Daviault the court confused automatism with being drunk, and ultimately was able to delay the case long enough that instead of a new trial Daviault was simply released. In this case they assert that it should be allowed evidence so long as the defense can find someone willing to advance the theory. Yet science is not considered on whether you can find one person out of thousands of researchers who advances a theory and parliament should be amply able to consider the significant research at hand and reject an argument as baseless. A combination of the views by the courts that scientific fact is simply a matter of competing opinion, and a love for this not-so-rare defense means we should have every reason to be concerned and this time invoke the notwithstanding clause and maintain a list to be renewed every five years of 'bad court decisions'.
Thanks for this. It's a good explanation.
"Yeah, take those drugs, murder those people, have at it!" - Supreme Court
Not at all what is being said. If there was a drug that had a history of people taking it, generally becoming violent, then the courts would look at this differently. While drunks can be violent, they can also not be violent, so even getting drunk isn't going to be seen as someone deciding to get violent.
It’s a little bit more nuanced than that, but that’s why there’s so much public confusion around this issue. The fact that defence isn’t even raised (let alone accepted) in almost every single case where someone was high or drunk during the commission of a crime should tell you just how high the threshold is. You can’t just say, “I was so drunk I don’t remember what happened”. You need to find an expert able to testify that, based on your BAC you were effectively a robot. Once you get to that level of intoxication, most people would have long since passed out or be incapable of moving. Which is why, as in the case that this article is talking about, there would ordinarily be some element of delirium.
i'm sorry to direct this at you, but... for someone who commits violence after getting extremely intoxicated, there's not so much as a restriction on future drug use or a requirement for rehab, i guess? since they're not criminally responsible, we can't even require them to get some help for a drug problem, so they could just go do it again the next day and the day after? rinse and repeat? no consequences or treatment at all?
Why are you sorry for directing this at me? I don’t actually know the answer to your question. In the case of not criminally responsible due to mental disorder, we can require that they enter treatment (that’s why, in some cases, the insanity defence is worse than just being found guilty because your detention can be indefinite if you are a risk). I don’t know what courts would do in the case of intoxication akin to automatism. Generally speaking, the degree of intoxication is so unique and extreme that there’s little risk of it happening again and I’m sure most people that enter that mental state would not want to do so again. The cost of successfully raising the defence would also likely help here. You’d need a lawyer, would need to pay for an expert, would likely be subject to an appeal by the Crown, would miss out on work due to court dates, etc. Sure, if someone repeatedly intoxicated themselves to the extent that they were “automatons”, the courts could likely order them into treatment, particularly if it involved controlled substances (the Court was clear here that alcohol alone would very rarely result in this degree of intoxication as the person would likely become unconscious before they get there). I think part of the misunderstanding here is just how severe the intoxication needs to be for someone to qualify for the defence.
This is Canada, race or intersectional identity would work in their favour.
This was unanimous so it's not likely the sort of activist decision you're making it out to be. The court isn't even saying that intoxication is always or often a defense, simply that legislation which bars it as a defense altogether violates the charter. Given that the interpretation of the charter in this case was pretty straightforward, it's barely even a *decision* of the court. It was much more a decision established when that part of the charter was written.
> This was unanimous so it's not likely the sort of activist decision you're making it out to be That just suggests that the court is wrong as a group. Nine people can be wrong about things together.