Intoxication must not be an excuse for criminal acts

Parliament needs to rewrite law, writes

It's unanimous: If you kill someone while you are extremely intoxicated, you're not criminally responsible for your actions and can't be convicted of an offence in court.

That is not something Canadians would likely unanimously agree to, but it was the conclusion of a 9-0 Supreme Court of Canada decision released last week. At issue were a trio of trials involving defendants who were accused of committing offences, including manslaughter, while drunk and high to the point of being in a state of “automatism.”

It has, in fact, long been recognized that people are not criminally responsible for what they do in an “automatic” state — such as during a seizure — because they lack voluntary control over their actions. In effect, no criminal act — no actus reus — occurs in such circumstances.

But equally, it has long been recognized that people shouldn't be excused for what they do as a result of voluntary intoxication. Indeed, in response to a 1994 Supreme Court decision, Parliament enacted Sec. 33.1 of the Criminal Code, which removes the defence of automatism from those charged with committing offences while extremely drunk and high.

But last week's Supreme Court decision declared Sec. 33.1 unconstitutional, thereby affirming the acquittal (or new trial) of three men, including one who stabbed his father to death after drinking alcohol and taking magic mushrooms.

In essence, the court held that Sec. 33.1 is too broad: In addition to capturing those who “recklessly invite loss of control,” by consuming alcohol or illicit drugs, it also applies to a patient who, for example, “experiences an overwhelming and unexpected reaction to pain medication and injures another in a state of involuntariness.”

That latter example likely occurs rarely, although the court heard evidence that alcohol and illicit drug intoxication also rarely produces a state of automatism. Merely not being able to remember what one did while intoxicated doesn't qualify as automatism, and to plead the defence successfully, defendants need to provide substantial psychiatric evidence that an automatic state existed.

That, however, is cold comfort to victims, a disproportionate number of whom are women and children. It is therefore incumbent on Parliament to design a new law, one that will protect potential victims while also respecting the Constitution.

Although it's not the Supreme Court's role to legislate, it did offer some viable avenues for law reform. Parliament could, for example, create a new criminal offence of “dangerous intoxication” or “intoxication causing harm.” By “incorporat(ing) voluntary intoxication as an essential element” of the offence, these new offences would ensure criminal consequences for those who choose to get extremely drunk and high.

The 1994 Supreme Court decision that prompted promulgation of Sec. 33.1 suggested creating those very offences. Parliament was therefore clearly aware of — and rejected — that option, perhaps because these offences would not attract the criminal penalties that manslaughter, for instance, does, and hence defendants could still use extreme intoxication as a way of receiving a lighter sentence — a “drunkenness discount.”

Fortunately, there is another option discussed by the court. Parliament could fashion a new Sec. 33.1 incorporating a requirement that “loss of control and bodily harm were both reasonably foreseeable at the time of intoxication,” before removing from defendants the option of pleading automatism.

A law that includes this requirement would still catch those who get drunk or use illicit drugs, since there is abundant evidence that these substances reduce inhibition, including at least some loss of control. In fact, that is why many people take them.

But the law would not likely apply to those who, as in the example advanced by the court, use pain medication and experience a completely unforeseeable reaction. In excluding such cases, the law would arguably avoid the overbreadth that bedevilled Sec. 33.1.

The court's decision ought therefore to be seen, not as a setback for women and children but as an opportunity to rewrite Sec. 33.1 — which even its supporters described as “inelegant” and “oddly drafted” — in a way that passes constitutional muster.

Indeed, the twin goals of protecting vulnerable people and protecting the Constitution shouldn't be at odds with each other. The law ought to be drafted in a way that protects both.