Is “extreme intoxication” a defense to excuse violence?

The Canadian Supreme Court has yet to decide the extent of “extreme intoxication” as a defense to excuse violence

In a decision issued on May 13, the Supreme Court of Canada declared a law prohibiting the use of a defence known as non-insane automatism by those accused of violence crimes, including sexual assault charges, as unconstitutional. In Canada, non-insane automatism, or extreme intoxication, is defined as,

A state of unconsciousness that renders a person incapable of consciously controlling their behaviour while in that state

As explained by medical and legal professionals, an individual under extreme intoxication would have no awareness or control over his/her mind and body. The court’s decision has raised alarm among victims and gender-based violence advocates, who believe that this will allow non-insane automatism as a legal defence to excuse violence or abuse.

To illustrate the harm that the court’s decision may have, advocates and experts point to several legal case studies. For example, in 2015, a 19-year-old-student named Thomas Chan was socializing with his friends when he consumed “magic mushrooms.”  These contain the drugs psilocybin or psilocin, which causes hallucinations, distorts one’s perception of time and space, and even untethers your senses. Later that night, under a drug-induced psychosis, he stabbed his father and father’s partner.

In 2013, a man named David Sullivan attempted to take his own life by consuming approximately 80 tablets of the prescription drug Wellbutrin, an antidepressant. Upon consuming these tablets, he became disconnected from reality and believed his mother to be an alien, ultimately stabbing her due to this hallucination.

In 1989, Henri Daviault sexually assaulted a 65-year-old woman and claimed he was under the influence of alcohol and had no recollection of the attack. His right to use extreme intoxication as a defense was initially accepted by the courts, but was ultimately found unconstitutional and ordered to re-trial. This case went untested as Daviault passed away before his second trial.

Advocates point to these legal cases to argue that the court’s May 13 decision will only abet perpetrators and sex offenders in abusing women and children, and that it will most likely be used as a legal tactic by perpetrators of violence to avoid taking responsibility for their actions.

The Women’s Legal Education and Action Fund (LEAF) contested that this decision would only privilege “individual rights over those of vulnerable groups, including women and children who disproportionately bear the risks and consequences of intoxicated violence.” LEAF has also argued that this ruling violates a victim’s right to security and equality, and further discourages the abused to speak up and file a complaint.

Where the court’s ruling was only recently issued, it remains to be seen how it will be interpreted by the lower courts. An associate professor of law at the University of New Brunswick, Kerri Froc, argues that what the court ruling will mean in practice is “unclear”.

Froc, who studies how the law is applied in cases involving equality issues, conducted a study of study of 86 cases involving violent crimes between 1994 to the present. The study found that in 90% of these cases, the defendants were male and the victims were young women. Based on this research, Kroc argues that non-insane automatism would be a gendered defense brought forward by men to excuse violence against women.

Women’s Centres Connect and the Transition House Association of Nova Scotia are calling for a just consideration of this ruling, with a feminist and intersectional lens as more women and children stand as victims of assault and sexual abuse without the liability of their abusers.

If you need more information on extreme intoxication rulings, please connect with Legal Information Society of NS