Should “self-induced extreme intoxication” be a valid defence for murder or sexual assault?

Jordan No matter the nuances of this decision and as you’ll see it’s quite nuanced, everyone can at least agree that it made for a really bad headline. Canada’s Supreme Court rules that self-induced extreme intoxication is now a valid defence against charges of murder and sexual assault, among other things. There’s a lot more to this story, but, yeah, the optics are not great. That might be one reason why, after Canada’s Supreme Court allowed that defence in May, the federal Liberals tabled a bill on Friday to ban it. But here’s the thing. The defence itself is a lot deeper and more complex than the headline or the political reaction. So what exactly is self induced extreme intoxication? How do you define it? How do you prove it in court? Why on earth would Canada’s highest court consider it a valid defence? And how could it be used in our legal system, for better or for worse, if the Liberals don’t ban it?

I’m Jordan Heath-Rawlings. This is The Big Story. Pam Hrick is the executive director and general counsel at LEAF, the Woman’s Legal Education and Action Fund. Hi, Pam.

Pam Hrick Hi.

Jordan Thanks for joining us today.

Pam Hrick Thank you for having me.

Jordan No problem. I’d like to set a little bit of a baseline for our conversation because there’s a lot more history to this than I was aware. So before we talk about the Supreme Court ruling, specifically when you say that the legal system fails survivors, what do you mean, and how do you back that up?

Pam Hrick Yeah, so first off, when I talk about sexual violence and gender based violence, and speaking not just as the executive director of LEAF, but also as somebody who has spent the better part of two decades now as an advocate to end violence against women and gender based violence, and someone who’s also practiced law and advised survivors of sexual violence in criminal and civil proceedings as well. So I have a familiarity with these issues, and I think some of the things that have continually come up for me over the decades include unfounded rates. For example, we saw Robyn Doolittle’s groundbreaking, important reporting over the last few years about how few cases that are brought to police, how few complaints of sexual violence that are brought to police actually result in charges. And we know that that is a systemic issue. That’s one thing I would cite.

Another is the ways in which myths about sexual assault, about how survivors are supposed to act or respond, still pervade the justice system. And you don’t have to look too far for some prominent examples of that. The one that I would cite is Justice Robin Camp from a few years ago. We saw the judge there having made comments like, why didn’t you keep your legs closed? Those sorts of things. So we really see the justice system. I think that the legal system falls short for survivors in those kinds of ways. And the other thing I would point out is that we socially, societally encourage people to report. We want people to go to the police, survivors to make these complaints and to hold people accountable through the criminal system, leaving aside whether or not that’s right for individual survivors, but we don’t prepare them for what it is. And it is a gruelling experience, I can tell you, being a sexual assault complainant in a criminal trial, telling your story repeatedly to strangers in public for having your credibility questioned. And we don’t really set survivors up to understand what that’s about. So we need things like independent legal advice properly funded for survivors to at least tell them about their options and prepare them for what this process might look like.

Jordan Now, can you explain the history of the defence that we’re going to talk about today? Extreme intoxication. Where did it come from in Canadian law and how has it been tested in the past? Like in the 1980s, I believe.

Pam Hrick Yeah, so many years ago, before we had the Charter of Rights and Freedoms and that was adopted in, we had a judge-made law, which is also called common law, that basically said that no level of intoxication is a defence to crimes of what they call general intent and that includes crimes like sexual assault. After the Charter was adopted, there was a case heard by the Supreme Court in 1994 and that case is called Daviault. And in that case a man had become incredibly intoxicated by alcohol. He had drunk a great deal of alcohol and he subsequently sexually assaulted a vulnerable woman, someone who used a wheelchair and he was then charged with sexual assault. And he said at trial, I was so intoxicated that basically I was in a state of what’s called automatism. And that means that there’s a disconnect between basically the mind and the body that there wasn’t control that he was exercising at the time over his actions because of his intoxication.

And the thing that I like to point to, to sort of give an example of that is you think of seizures and somebody’s body is moving but they do not have control over what they’re doing. And he said that’s basically the state that I was in. And the judge in that case, that trial said, you know what? I agree that this is something that should lead me to have a reasonable doubt about your guilt. So he was acquitted. And ultimately the Supreme Court in that case, when it heard this appeal, said we also agree that the defendant should be allowed to raise what is called a defence of self-induced extreme intoxication akin to automatism.

And they set a higher threshold for what somebody has to prove to rely on that defence. They said someone who wants to rely on that defence has to have expert evidence and they have to prove balance of probability so that it’s more likely than not that they were actually in that state that was effectively disillusional, where they could not control their actions. And the Supreme Court said that is a defence to these types of crimes, and sent the issue back for a retrial. Unfortunately, after that, though, the victim died before the case could proceed to a retrial. So that sort of set the stage for a huge uproar. At the time, the general public, women’s rights groups, people were concerned that having this defence would basically open floodgates, would say people who could go out and get drunk, commit sexual assault, commit gender based violence, domestic violence, and be let off the hook.

Jordan So what happened back then that made this an issue now again in 2022?

Pam Hrick Well, after this Daviault case, parliament heard the public outcry and parliament passed a law. It was a law that was in the Criminal Code, it was section 33.1 of the Criminal Code, and it basically said, no, you cannot rely on that defence for certain crimes, including the crime of sexual assault in. Parliament said, we want to recognize that intoxication and violence against women and children often go hand in hand, and that women and children deserve to have their dignity and equality upheld by the law. And that a way to do that is to prohibit to bar the use of this defence for crimes including sexual violence.

Jordan So the Charter barred it, the Supreme Court allowed it, then parliament barred it again, and this year it made its way back to the Supreme Court. What were the cases behind the Supreme Court’s decision this time? What were they ruling on right now?

Pam Hrick So there are three cases that made their way up to the Supreme Court, and I should note that there have been many cases since 1994, since the law that was section 33.1 was enacted after the ’94 decision, many cases that challenged the constitutionality of that provision. And so these three were the latest and the only ones that have made their way up to the Supreme Court. And so there are cases that came from Ontario and Alberta.

One case, a person consumed magic mushrooms, and then he broke into somebody’s house of a stranger and attacked a woman. The second person consumed magic mushrooms and alcohol, and then he ultimately stabbed his father to death. The third person consumed an overdose of a prescription drug called Wellbutrin, which has known psychotic side effects in a suicide attempt, and he then stabbed his mother.

And all three of these men were in basically delusional states when they committed these acts. None of these cases involved sexual violence, I should say, and the Supreme Court notes that as well. But in all of these cases, when these men got to trial, they said the drugs that they consumed caused them to go into what’s called that state of automatism, that delusional state where they don’t have voluntary control over their actions. And all three of them argued, or two of the three of them argued at trial that section 33.1, one was unconstitutional, that it violated their rights to liberty in a way that, as we say, it doesn’t accord with the principles of fundamental justice, and that it also violated the right to be presumed innocent.

That ultimately led to, in one case, the judge agreeing, and the accused was allowed to raise the defence, and he was acquitted. And in the other two cases, the judges disagreed, and the defence could not be raised. So all of these made their way up to the Supreme Court through provincial courts, and the result was the decision that we saw a couple of weeks ago.

Jordan Can you summarize that decision for people who may have missed it in the news cycle? What did the Court rule and what reasoning did they give?

Pam Hrick Certainly, the Supreme Court struck down this rule, section 33.1, as unconstitutional. It said that, and it was a unanimous decision. All nine judges on the court reached this conclusion. They said it violated constitutional rights of accused persons for three main reasons. It creates what they call a voluntariness breach, and that is a breach of the general principle that we don’t convict people of crimes that they didn’t do voluntarily or for actions that they didn’t do voluntarily.

The second issue, they said, was what they called a substitution breach. And they said that taking this defence off the table basically convicts somebody or a crime, say, of assault, when they have only voluntarily gotten extremely intoxicated. They didn’t voluntarily do the assault. So they substitute that guilty mind, that moral guilt, of getting extremely intoxicated for the moral guilt or the voluntariness of the crime they’ve been charged with. So as assault, for example, and they said that’s not constitutional either. And then they said it’s also called a mens rea breach. And that’s a fancy Latin term for guilty mind, effectively. And that’s an essential component of crimes. And the Court said that based on all of these violations of accused person’s rights, the law could not stand, and that it wasn’t justifiable to have it on the books.

Jordan In a moment, I want to talk about the reaction to that ruling. But first, as somebody who has argued these cases, as somebody who’s fought for victims rights most of your career, what was your immediate reaction to hearing this verdict?

Pam Hrick When the decision came out, I worried because I saw also the response of, say, the media and the public after the Ontario Court of Appeals decision in this case, where it also said this law is unconstitutional. And there was that same sort of outroar, that concern that I described following that 1994 case, that this would mean that people could sexually assault with impunity. And all you had to do was get a little bit drunk. And I was worried that people come to understand this case as meaning that. And that would be harmful because it’s not accurate. So those are the things that were going through my mind when this decision was released.

Jordan There was a lot of immediate outrage following the decision. What could have been done better to convey where and how this defence could apply that could have avoided that? And what do you think was going through the ordinary citizens mind hearing this ruling?

Pam Hrick I think the ordinary person, and I’ll say actually this is based on some of the concerns that we heard, especially from young people about this case. There was a fear and a kind of a lack of certainty about what this meant. Did it mean that if somebody had been intoxicated even a little bit when they had assaulted somebody else, that means that they would be giving it a free pass effectively. And I get that, like, it’s a totally reasonable reaction. These court decisions, the specific case, there was one decision in particular that addressed the constitutionality provision. It’s 100 pages long and it’s a legal decision and it’s not accessible. Yeah, exactly. It’s dense for even those who have lot of reason, I’d say so for the general public and the average person to be able to access what this means, I don’t think it’s reasonable. So I get the concern.

Jordan So this is why we have you on the show and I want you to clearly communicate it to me and our listeners. I get that this does not mean that an oops, I was drunk, I didn’t mean that defence will be permissible. I also get that there may be cases of incredibly extreme intoxication where a person loses control of their intentions. Most of those are somewhere in the middle. What kind of standards will be applied to intoxication as a defence and how does that work in a courtroom?

Pam Hrick Right, so I’m trying, as I explain what these cases mean, to say it’s not just intoxication, it’s intoxication that rises to that level of automatism. And how it’s going to look in the indoor rooms is that somebody who wants to raise this as a defence is going to have to provide expert scientific evidence that says, yes, I was in this state when I did this act that I’m accused of doing. They have to satisfy the court on that balance of probabilities, which is an unusual standard in criminal cases. That’s why I say it’s a very high threshold that somebody needs to meet. At the same time that they can add that evidence, provide that evidence. The Crown who is prosecuting the case will also be able to provide expert evidence if the situation calls for it to say maybe this doesn’t actually rise to that very high level.

So I think there are a couple of things that I’m going to be looking for in the months and years to come. If parliament doesn’t take any actions, for example, to limit the scope of this defence, I’m going to be looking for courts accurately evaluating the defence, looking for that evidence, and putting the right standards in place to allow somebody to rely on it. I’m going to be looking and hoping that judges, justice system actors will be educated, will educate themselves on how to do this work in this context properly. And I’m also going to hope and advocate for governments to not just rely on the criminal system as a place to which we funnel survivors of sexual violence, but to look at and invest in alternative mechanisms to respond to sexual violence. And by that I mean things like restorative justice, things that are outside the legal system that might better align with what survivors feel for them is justice.

Jordan I want to ask what might come across as a naive question here, but when I hear that it’s going to be a matter of proving it to a certain level in a courtroom, what that says to me is this is another way for people with really good lawyers to get away with sexual assault. And I’m not saying this to be difficult. I’m saying this because I think that this is in a lot of people’s heads when we talk about intoxication as a defence, regardless of how rigorously we hope the standards will be applied.

Pam Hrick I’d say those are valid concerns. I’d say a couple of things in response to that. Specifically, one is that we know right now the justice system offers different levels of justice depending on the amount of money that you have, your background, your social location. We know that the criminal law is disproportionately brought to bear on black, indigenous and other racialized folks, and that access to justice depends on who you are. The thing that I want to emphasize is that the Supreme Court was incredibly clear that intoxication short of that very high bar of automatism is not a defence to these crimes, including sexual violence. So I really want people to understand that this is very much the exception and not the rule. And we will continue, at least in our advocacy, to try to ensure that that is exactly how this plays out in courts, through public education, through ensuring that those who participate in the justice system are aware of the laws and are applying them correctly.

Jordan Pam, thank you so much for this. I feel like I understand the issue a lot better.

Pam Hrick Great. Thank you so much for having me.

Jordan Pam Rick, Executive Director and General Counsel at LEAF, the Woman’s Legal Education and Action Fund. That was The Big Story. For more, you can head to thebigstorypodcast.ca. As you know by now, you can follow us on Twitter at @TheBigStoryFPN. You’ve probably got the email address memorized if you’re still listening, but it is [click here!]. Feel free to write to us and feel free to call us and leave us a message. The phone number is 416-935-5935. We’d love to hear from you, thanks for listening.

I’m Jordan Heath-Rawlings. We’ll talk tomorrow. Back to top of page