Extreme intoxication is now a defence - Supreme Court of Canada

[Barrister]

No news story as of yet, I will post when one becomes available.  But here's the decision itself:

https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/19389/index.do

Trying to keep it pretty basic: in law, the Crown has to prove two things, the actus reus (the act), and the mens rea (the guilty mind).  So if you do something by accident, without meaning to, it is not a crime.

The question long ago came up about intoxication - can you be so drunk that you no longer are in control of your actions, and therefore no longer have the requisite mens rea?  Back in the 90s the Supreme Court said yes.  In response Parliament passed section 33.1 - that self-induced intoxication can not be a defence to crimes of violence.

Today the court struck down s. 33.1, saying it violated the Charter of Rights.  It suggested Parliament could have dealt with this in other ways.  Most tellingly to me is that the Court did not suspend it's ruling for a period of time to allow Parliament to fix the problem - it comes into effect today.

This, my friends, is bullshit.

The court has no idea what kinds of hell this will cause.  I dare say most of my files are done under the influence of intoxicants.  A significant minority under heavy intoxication.  To just waive a hand and say "well then you're not guilty - go free and sin no more" is going to be hell.

But I'm posting a general thread, and not just in the Canada redux - what does the rest of the world think?  To the Languish law-talkers - how does your jurisdiction deal with the defence of intoxication?

[Josquius]

So if I ever murder someone in Canada chug a bottle of vodka.
Gotcha.

[DGuller]

I always found "intoxication is not a defense" argument to be pragmatic, not logically consistent.  Obviously there is a problem where the person can do something bad because they're drunk, and not suffer consequences because they're drunk.  As a public policy that would be disastrous regardless of intellectual consistency.

You can make an argument that a reasonable person knowingly put themselves into a state where they become unreasonable when they get drunk, but I don't think it's particularly strong.  It makes even less sense when the intoxication is less foreseeable, such when you have a bad reaction to a new medication, or when you're taking some psychotropic medication that changes your personality.  At the end of the day, most people who do something bad when intoxicated don't have it on their mind to do it when they're sober, so that implies lack of mens rea regardless of public policy implications.

[Barrister]

Here's a news story.

https://www.cbc.ca/news/canada/calgary/supreme-court-calgary-case-assault-mushrooms-extreme-intoxication-brown-1.6451012

[Barrister]

I always found "intoxication is not a defense" argument to be pragmatic, not logically consistent.  Obviously there is a problem where the person can do something bad because they're drunk, and not suffer consequences because they're drunk.  As a public policy that would be disastrous regardless of intellectual consistency.

You can make an argument that a reasonable person knowingly put themselves into a state where they become unreasonable when they get drunk, but I don't think it's particularly strong.  It makes even less sense when the intoxication is less foreseeable, such when you have a bad reaction to a new medication, or when you're taking some psychotropic medication that changes your personality.  At the end of the day, most people who do something bad when intoxicated don't have it on their mind to do it when they're sober, so that implies lack of mens rea regardless of public policy implications.

I think you have it.  The court's point is very logical - if someone does something while highly intoxicated, and would never do such a thing while sober, certainly has an altered consciousness.

But it's the public policy side of it - these people cause very, very real victims.

I had a case last year.  Guy was staying in an Air BnB.  He was drinking, smoking some pot, and mixing in some prescription pills (not prescribed to him though).  Somehow he got locked out of his AirBnB, didn't know which one was his, so started randomly trying doors.  He forced his way into two separate condo units where he proceeded to assault the occupants.

Is it really good public policy to say "oh well, you were just highly intoxicated.  Sorry victims, nothing we can do here"?

[Sheilbh]

But I'm posting a general thread, and not just in the Canada redux - what does the rest of the world think?  To the Languish law-talkers - how does your jurisdiction deal with the defence of intoxication?

From the CPS - may be different in Scotland and Northern Ireland, not sure - there's a Q&A which I actually thought was quite interesting:

General Principle

Intoxication, whether voluntary or involuntary, is not a defence per se. However, where a person is intoxicated through drink or drugs and commits a crime, the level of intoxication may be such as to prevent that person from forming the necessary mens rea of the crime.
[...]
Intoxication: Specific and Basic Intent

Voluntary intoxication is never a defence to a crime of basic intent.

However, where the defendant has voluntarily put himself in the position of being intoxicated to the extent that he is incapable of forming the mental element of the offence, this will amount to a defence in respect of a crime of specific intent.

This principle is subject to the caveat that a drunken intent is still an intent: R v Sheehan and Moore (1975) 60 Cr App R 308.

NB: A person who deliberately makes himself intoxicated in order to give himself sufficient courage to commit an offence cannot raise a defence based on such intoxication, even to a crime of specific intent: AG for Northern Ireland v Gallagher [1963] AC 349.- (The 'Dutch courage rule').

The distinction between crimes of specific intent and crimes of basic intent was drawn in DPP v Beard [1920] AC 479 and affirmed in DPP v Majewski [1977] AC 443 HL. The terms 'basic intent' and 'specific intent' have since been defined in different ways.

Crimes of specific intent have sometimes been stated to include crimes where the offence can only be committed intentionally i.e. where recklessness will not suffice (e.g. murder): R v Caldwell [1982] AC 341 HL.

Another definition often used is where the offence requires an ulterior intent i.e. one which requires proof of an intent which goes beyond the prohibited act (e.g. criminal damage with intent to endanger life): R v Heard [2007] 3 WLR 475.

Crimes of specific intent have been held to include:
    Murder
    S.18 wounding/GBH with intent
    Arson/criminal damage with intent to endanger life

Crimes of basic intent have been held to include:
    Common assault
    S.47 assault occasioning actual bodily harm
    Manslaughter
    Assault on a police officer in the execution of his duty
    S.20 wounding/GBH
    Taking a conveyance without the owner's authority
    Arson/criminal damage
    Arson/criminal damage being reckless as to whether life would be endangered
    Sexual assault (notwithstanding the fact that "intentional" touching of the complainant by the defendant is an essential element of the offence)

Also I found it interesting that if you have a mistaken belief that you're under attack, you can't rely on that mistaken belief as self-defence if it was induced by voluntary intoxication (presumably with a hallucinogen) and that applies to specific or basic intent crimes. Which makes sense.

[Jacob]

I'm no lawyer, but would a reasonable approach be to establish a specific law about engaging in criminal behaviour while under voluntarily under the effect of intoxicants?

[Sheilbh]

I'm no lawyer, but would a reasonable approach be to establish a specific law about engaging in criminal behaviour while under voluntarily under the effect of intoxicants?

From BBoy's post I think that's exactly what happened - and it got struck down.

[Barrister]

From the CPS - may be different in Scotland and Northern Ireland, not sure - there's a Q&A which I actually thought was quite interesting:

That all matches what Canadian law was - intoxication could form a defence to specific intent offences, but not general intent.

For the non-lawyers out there, most criminal laws are ones of general intent.  You're assumed to expect the reasonable consequences of your actions.  If you punch someone, hard but not that hard, you can expect them to get hurt.  The prosecution doesn't need to prove you intended to hurt anyone.

But an offence like Murder is one of specific intent.  Here the prosecution must prove you meant to kill someone.  If we can't prove that intent we're left with manslaughter, which is a general intent offence.

Intoxication was always enough to negative specific intent, but not general intent.

[crazy canuck]

From the Court's headnote

This is not a drunkenness case. B consumed a drug which, taken in combination with alcohol, provoked psychotic, delusional and involuntary conduct. Criminal liability for violent conduct produced by alcohol alone, short of the psychotic state akin to automatism experienced by B, is not in issue.

[merithyn]

Does this negate all charges against drunk driving fatalities?

[Jacob]

Does this negate all charges against drunk driving fatalities?

Apparently not, as per CC this doesn't apply to alcohol at all (except when combined with other substances that then provoke an involuntary psychotic reaction).

[Admiral Yi]

I think this raises the related point of crimes and insanity.  I watch a little bit of courtroom youtube and I think the case could be made that most people who commit serious crimes are some kind of psycho.

[Barrister]

Does this negate all charges against drunk driving fatalities?

Well the court asserts that "there is good reason to believe Parliament understood that alcohol alone is unlikely to bring about the delusional state akin to automatism it sought to regulate" (emphasis added).  But it's a factual, not legal, distinction.

I've only skimmed the decision but haven't seen anything that explicitly limits it to combinations of alcohol and drugs.

And besides - from experience if you're the kind of person who gets so intoxicated you're committing crimes you almost certainly have more than one substance onboard.

[Barrister]

I think this raises the related point of crimes and insanity.  I watch a little bit of courtroom youtube and I think the case could be made that most people who commit serious crimes are some kind of psycho.

A couple of years ago they started up a "mental health court" here in Edmonton.  And there was a big debate over exactly  who qualifies to get into mental health court because yeah - very few people just calmly and rationally decide to turn to a life of crime.  And it's almost definitional, as some of the DSM diagnosis criteria require that the person have negative social interactions or the like.