Top Court’s Upholding of Extreme Intoxication Defence Draws Mixed Reactions

A Supreme Court of Canada ruling that someone too impaired by drugs to be capable of self-control isn’t criminally guilty has caused mixed reactions and a call for new legislation by some.

The Supreme Court of Canada (SCC) ruling of R. v. Brown concerned a former Calgary university student who, at a party in Calgary in January 2018, drank alcohol and consumed “magic mushrooms,” which contain a drug that can cause hallucinations. Around 3:45 a.m., while naked, Matthew Winston Brown broke into a nearby home where he violently attacked a woman and left her with permanent injuries.

Brown, who had no previous criminal record or history of mental illness, said he had no memory of the incidents. He was charged with two counts of break and enter, assault with a weapon, and mischief.

In his defence, Brown claimed “automatism,” a state in which someone has completely lost control due to intoxication. However, Section 33.1 of the Criminal Code prevents automatism from being used as a defence for a crime that involves assault or interference with the bodily integrity of another person. Brown argued that this section violated the Charter of Rights and Freedoms, since Section 7 of the charter guarantees everyone the right to life, liberty, and security of the person, and Section 11(d) guarantees everyone the right to be presumed innocent until proven guilty.

The unanimous decision penned by Justice Nicholas Kasirer on May 13 found that Section 33.1 could not be justified in a free and democratic society and was therefore unconstitutional. Section 11(d) of the charter was violated because society could interpret someone’s intent to become intoxicated as an intention to commit a violent offence, the decision statement said. Likewise, Section 7 was infringed because someone could be convicted without requiring the prosecution to prove that the action was voluntary or intentional, it added.

An SCC brief on the decision states that a justice system “based on the notion of personal responsibility” could not convict someone who lacked control of themselves.

Janet Hamnett was badly beaten in January 2018 by Matthew Brown after he broke into her home. (Court exhibit via The Canadian Press)

“In Canada, two elements of fundamental justice are required for a person to be found guilty of a crime. They are: a guilty action; and (2) a guilty mind. Neither element is present when a person is in a state of automatism,” the brief states.

Ottawa criminal defence lawyer David Anber agrees with the SCC decision.

“Although this [decision] may seem concerning, in practice it will rarely ever apply,” Anber said in an email to The Epoch Times.

“It requires credible expert defence evidence establishing that the drunkenness did in fact cause the person to act involuntarily. … This is not a defence that defence lawyers routinely use, and when they use it, it often doesn’t succeed,” he noted, adding that the R. v. Brown verdict won’t change this.

“Drunkenness as a defence is available in some cases where there is a specific intention, but it is not available in cases of general intent. Drawing the line between general and specific intent offences is a case- and offence-specific task,” he explained.

“Committing an indecent act requires a specific intent to insult or offend, whereas committing a sexual assault does not require any specific intention. So, drunkenness can be used as a defence for an indecent act but not for sexual assault.”

Carleton University criminology professor Darryl Davies is concerned autonomism will be used to defend serious crimes more often now.

“Your defence is going to be that you couldn’t form intent or that you were not aware of what you were doing, which is absolute rubbish. You set out to engage and take drugs and take whatever intoxicants and you are responsible for your behaviour. End of story,” Davies said.

“If I want to kill my spouse, I can’t do it when I’m sober. But by God, if I’m totally whacked on drugs or I’m whacked on alcohol, I can kill and get away with it because I’ll be acquitted by the Supreme Court of Canada.”

Case Initially Acquitted

Brown had previously been acquitted by an Alberta court, which ruled that he did not have control of his actions or possess the requisite intent to be found guilty.

The Alberta Court of Appeal overturned that decision, finding that Brown must be held responsible as it was his his choice to consume alcohol and magic mushrooms.

The SCC then restored Brown’s initial acquittal on May 13, considering two similar Ontario cases in its decision, including one that involved a fatality.

In one of those two cases, Thomas Chan took magic mushrooms, then stabbed his father to death with a knife and left his father’s partner with serious injuries. He was tried for manslaughter and assault, but blamed automatism and a brain injury for his actions.

In the other case, David Sullivan overdosed on a prescription drug and gravely injured his mother in a knife attack, leading to charges of aggravated assault and assault with a weapon.

The Ontario Court of Appeal acquitted Sullivan and also ordered a new trial for Chan, and the SCC dismissed the Crown’s appeals on both cases.

‘Completely and Utterly Illogical’

Davies says excuses are popular in society today and habitual criminals too often find “mitigating factors that offer justification.” He says the common person would not rule as the SCC judges did.

“The fact that they would take such a narrow view, in my opinion, of the law when a human life is at stake is completely and utterly illogical and no reasonable person would find such a ruling just,” he said.

“Becoming notoriously intellectual about murder is not an option in our society, in a society that values human life. And it’s well for them to debate and argue that as intellectuals in the debating society, but in practical application when it comes to reality, I’m sorry, it doesn’t work.”

However, Sayeh Hassan, a former criminal defence lawyer now with the Justice Centre for Constitutional Freedoms, believes the court got it right.

“This is not a ‘get out of jail free’ card for people that choose to become intoxicated and then they commit violent acts. It applies to a very few very rare cases … where the person has no control over their actions at all,” Hassan said.

“You’re going to have to convince the court through medical evidence, so you’re going to need doctors, you’re going to need psychiatrists to evaluate you.”

Hassan agrees with the SCC that section 33(1) casts too broad a net.

“It could catch somebody who was just socially drinking with no intention of committing a crime. Maybe they took an aspirin with a glass of beer and something happened.”

The SCC suggested that Parliament enact new legislation to ensure intentionally intoxicated people are held accountable for physical harms they cause.

“[P]rotecting the victims of violent crime–particularly in light of the equality and dignity interests of women and children who are vulnerable to intoxicated sexual and domestic acts–is a pressing and substantial social purpose,” the decision reads.

Hassan said a rewritten law could still apply to those who knowingly started on a path that led to harms.

“Something that the Parliament can do is put in a negligence standard, where it would be up to the judge to decide, OK, was this action, was the loss of control reasonably foreseeable?” he said.

“Then the judge can say, ‘OK, this person went out and had 20 beers,’ so it’s reasonably foreseeable that this could lead to something that is criminal.”

Author and Epoch Times contributor William Gairdner disagrees that Brown should be let off the hook.

“Even though we can’t say that the man was responsible for what he did, we can punish him as if he were. Whether or not he was actually responsible for the deed, he still did it,” Gairdner said in an interview.

“I realize that it goes to the question of intent. … Well, he formed intent when he got so plastered on drugs that he knew it was going to take him into a condition of non compos mentis [not of sound mind],” he adds.

“So I guess it’s a question of whether you want to position the responsibility at the beginning when he decided to get totally drunk and lose his mind, or at the end when he was totally drunk and [committed the crime].”

Lee Harding


Lee Harding is a journalist and think tank researcher based in Saskatchewan, and a contributor to The Epoch Times.

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