Mélanie Cantin is a JURIST Staff Correspondent in Ottawa, and a rising 2L at the University of Ottawa.
On Friday May 13th, the Supreme Court of Canada rendered its judgment in the case of R v Brown, rejecting the constitutionality of section 33.1 of the Criminal Code, a provision removing “extreme self-induced intoxication akin to automatism” as a defence to otherwise criminal acts requiring voluntariness when those acts involved an element of assault or bodily interference. The decision prompted a serious spread of misinformation among the general public, with some calling it dangerous and others going so far as to organize protests to express their displeasure.
Unfortunately, the misinformation persists even after numerous clarifications by Canadian legal professionals. With important cases concerning bodily autonomy and sexual assault currently being considered by the high courts around the world (including in India and the US) it is crucial to clarify just what the Brown decision means for Canadians.
In Brown, the accused was a man who ingested both alcohol and “magic mushrooms” at a party. He then had a particularly serious reaction to psilocybin, the main ingredient in the drugs. This caused him to enter into a state of psychosis during which he attacked the victim inside her home and grievously injured her. Brown was charged with aggravated assault, but was acquitted at trial due to having successfully made out the defence of extreme self-induced intoxication akin to automatism. The Alberta Court of Appeal overturned the judgment and convicted Brown, citing section 33.1 of the Code, which banned the use of extreme self-induced intoxication akin to automatism as a valid defence available to accused persons whenever the crime they committed involved an element of assault or an interference with another person’s bodily integrity.
This is no longer the case, as the Supreme Court restored the original acquittal and declared section 33.1 unconstitutional for breaching sections 7 and 11(d) of the Canadian Charter of Rights and Freedoms. Respectively, these sections protect the right to life, liberty, and security of the person, and the right to be presumed innocent until proven guilty when charged with a criminal offence.
However, the Court was explicit from the very beginning of its judgment that extreme self-induced intoxication akin to automatism does not concern cases of drunkenness. Justice Kasirer is clear about this in his reasons, which he penned on behalf of the unanimous Court: “These are not drunkenness cases. […] [A]lcohol alone is unlikely to bring about the delusional state akin to automatism [Parliament] sought to regulate in enacting s. 33.1 of the Criminal Code” (paragraph 4). Therefore, the many contentions that a rapist will now simply be able to use the fact that they were drinking to evade criminal penalties are, quite frankly, unfounded.
One of the main reasons for the initial confusion by many Canadians (journalists included) regarding the scope and application of the Brown decision appears to be the name of the defence. Its lengthy name is often shortened to “extreme self-induced intoxication” or “voluntary extreme intoxication” which, unless one already knows what is being referred to, are confusing and unfortunate misnomers that leave out the most crucial part of the defence: automatism.
Automatism as previously defined by the Court is “a state of impaired consciousness, rather than unconsciousness, in which an individual, though capable of action, has no voluntary control over that action” (R v Stone, paragraph 156). Canada tends to divide it into “insane” and “sane” automatism, with the former concerning mostly mental illnesses and the latter concerning reactions brought about by external stimuli. Examples of recognized states of sane automatism in Canada include sleepwalking and involuntary reflexes. Extreme self-induced intoxication is another. To qualify, the intoxication must be so extreme that it entirely negates the voluntary nature of the criminal acts in question.
In Brown, the Court stated that one of the problems with section 33.1 of the Code was that it “improperly substitute[d] proof of self‑induced intoxication for proof of the essential elements of an offence, contrary to s. 11(d) of the Charter” (Brown, paragraph 102). Since a person could then be found guilty of and sentenced for a crime they might not have voluntarily committed, something that Canadian law considers contrary to fundamental justice, section 33.1 also breached section 7 of the Charter. The Court’s position on the issue is aptly summarized as such: “The choice to become intoxicated through legal or illegal means, a choice that many Canadians make, cannot be said to be the same as an intention to perpetrate the illegal act” (Brown, paragraph 49).
Some might consider that intoxicating oneself to the point of losing control over voluntary actions (or automatism) and thus becoming dangerous to others is reprehensible enough that a person should be found guilty anyway for what they did after putting themselves in that state. This is not an unreasonable stance, but a key problem with section 33.1 (among others) was that it did not account of variety in the objective foreseeability of the harm caused by the accused while they were an automaton.
This foreseeability can depend on various things, including the type of substance the person consumed. The Court provides the example of a therapeutic drug: a person who had an adverse reaction to a therapeutic substance and then injured somebody else while in a state of automatism caused by extreme intoxication would find themselves in the same category as someone who took a dangerous, illegal street drug and did the same. With section 33.1 in place, neither would be able to use the defence.
Victim advocates have pointed out that although the Brown decision concerns a narrow and rarely used defence, the perception that intoxication can in any way serve as a defence to sexual assault could put vulnerable persons at increased risk of sexual violence. Someone could hear of this decision, it is contended, and think they could more easily get away with committing sexual assault.
This is an important concern, but realistically, the number of individuals whose minds about committing sexual assault have been changed for the worse by this decision is likely negligible. If anything, the misinformation peddled by the media (rather than the decision itself) is more likely to reach and sway a potential perpetrator, as well as perpetuate the mistrust in the justice system that many survivors of sexual violence already feel. At any rate, the Court is not to blame for making a legally sound decision that bolsters the rights of accused persons under the Charter and reaffirms that absent automatism, intoxication is not a defence to sexual assault (Brown, paragraph 5).
The burden of proof for the defence of extreme self-induced intoxication akin to automatism is on the accused and the threshold is high, which will weed out the cases where this automatism did not in fact occur. The low risk that someone might successfully misuse it to get away with a serious crime is not enough to altogether deny the protection it could rightfully afford to those who truly fall within its bounds, like Brown.
Even if all of this is not sufficiently convincing, as is the case for many victim advocates, the pressure should be on Parliament to enact a new law that addresses the issue without infringing on accused persons’ rights, an option that the Court explicitly states remains available to legislators (Brown, paragraph 11). Thus, while fervent support of victims of sexual violence is laudable, a proper understanding of the Brown decision is key to knowing what to advocate for, and to whom.