For once, the Supreme Court’s Friday payload won’t have us all talking about scary political divisions and intra-justice sniping. The court delivered a 9-0 decision on the fate of Section 33.1 of the Criminal Code, which explicitly eliminated the defense of “automatism” for intoxicated persons who commit unlawful acts of violence. To go over the relevant history in as brisk a fashion as possible:
In 1989, an alcoholic named Henry Daviault paid a friendly visit to a 65-year-old wheelchair-bound neighbor. He arrived having done plenty of what drunks call pre-gaming at a local bar, and the pair had a tot of brandy each. The hostess fell asleep in her wheelchair, only to be violently raped by her guest at 4 am Daviault said he had no recollection of any events after 6 pm, but that the bottle of brandy was empty when he eventually came to. A pharmacologist testified that the amount of alcohol in the rapist’s system could create a state of “amnesia-automatism,” casting doubt on Daviault’s responsibility for his actions.
Daviault was acquitted at trial because the Crown could not show he formed the intent to commit a sexual assault. Quebec’s Court of Appeal reversed that decision, but the Supreme Court re-reversed it and ordered a new trial. (Daviault went free a second time at the end of that fresh trial, helped by the fact that his victim was no longer alive to testify against him.) Feminist groups, along with the general public, went into a minor frenzy. That’s when the Christian Liberals wrote Sec. 33.1, which says that if you got intoxicated voluntarily and committed a violent crime, it is no defense to say that you were “unaware of, or incapable of consciously controlling, (your) behavior.”
The general public went into a minor frenzy
For most of the quarter-century courts avoided addressing the constitutionality of Sec. 33.1. But eventually hard cases requiring a constitutional confrontation with 33.1 began to percolate upward. The Supreme Court has done what it was most natural to expect it to do, and has thrown out 33.1 as written. The decision, written by Justice Nicholas Kasirer, invests seas of ink reassuring women that of course protecting them from drunken animals is an important objective of the law. The court even says it’s such an important objective that it passes some of the elements in the classic Oakes test.
But Sec. 33.1, in the court’s view, fails the “minimal impairment (of rights)” test. The Liberals, despite the white heat of the original Daviault controversy, had demonstrable choices other than just throwing out a species of criminal defense willy-nilly. They could have created a separate offense amounting to “intoxication leading to violence,” or they could have protected the requirement to show intent by creating a Criminal Code provision with an explicit negligence standard baked in. Their choice of statutory design guaranteed that some innocent people would end up being convicted for actions which, in the view of mainstream psychiatry, were completely beyond their control.
It is proper that the Supreme Court treat the requirement for mens rea as the sacred and ancient thing it is. As we have pointed out before, this amounts to a form of super-conservatism that puts certain bedrock principles of common law above either Parliament or the Supreme Court. But you may also notice that scientific opinion is playing a role here, and science seems to have changed in the days since Henry Daviault’s drink with a friend went wrong.
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Friday’s ruling concerns three cases in which men committed violence after combining booze with drugs. Back in 1994, when hearing Daviault’s appeal, the court happily accepted as axiomatic that alcohol alone could cause “automatism,” and turned a rapist loose on that evidentiary basis. In Friday’s ruling, however, Justice Cassirer explicitly emphasized that “These are not drunkenness cases. The accused in each of these appeals consumed drugs which, they argued, taken alone or in combination with alcohol, provoked psychotic, delusional and involuntary conduct, which are reactions not generally associated with drunkenness. ”
Later, the judge adds, “Although both Daviault and Parliament were focused on‘ drunkenness, ’the parliamentary record and facts of this appeal and the (parallel) Sullivan and Chan appeals suggest that the defense of extreme intoxication akin to automatism will generally not be relevant in cases involving alcohol alone. ” One is tempted to ask whether Parliament could therefore rewrite Sec. 33.1 to be alcohol-specific, or whether Justice Cassier can promise that there won’t now be a wave of alcohol-specific acquittals.
The answer is that he dare not: science may still have surprises in store for the law. “Claims of extreme intoxication,” Kasirer writes, “must, of course, be assessed with reference to the facts and expert evidence adduced at the trial. It would be inappropriate here to foreclose a finding of extreme intoxication through any intoxicant taken alone, if medical and scientific evidence adduced compel such a conclusion. ” One hopes the court’s 2022 understanding of “automatism” is better than its 1994 understanding. One also hopes that in raising mens rea to untouchable status, we are not elevating provisional and controversial scientific findings along with it.