In May 2022, the Supreme Court of Canada ("SCC") released two concurrent judgments for two cases dealing with circumstances where the accused was relying on a defence of "automatism."
At common law, automatism 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, [1999] 2 S.C.R. 2019, at para. 156).1
Court Decisions Involving Automatism
In R v. Brown, 2022 SCC 18, the defendant, consumed alcohol and magic mushrooms at a party, which contained psilocybin. He then "lost his grip on reality" and left the party and broke into a home and violently attacked a woman, who suffered permanent injuries. Mr. Brown was acquitted at trial, with the trial judge agreeing with him that s. 33.1 of the Criminal Codeviolated ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms.His acquittal was overturned at the Court of Appeal and the matter was referred to the SCC.
In R v. Sullivan, 2022 SCC 19, there were two appeals of two defendants charged with unrelated crimes, heard at the same time. Mr. Sullivan intentionally took an overdose of prescription drugs and fell into an impaired state, during which he attacked his mother with a knife and gravely injured her. The second defendant, Mr. Chan fell into an impaired state after voluntarily ingesting magic mushrooms containing psilocybin, attacked his father with a knife and killed him, and seriously injured his father's partner. At trial, both defendants were convicted. At the Court of Appeal, which heard the cases together, Mr. Sullivan's conviction was overturned, and a new trial was ordered for Mr. Chan. The Crown appealed both rulings to the SCC.
Can Automatism "Justify" Violent Criminal Behaviour in Canada?
- 33.1 of the Criminal Code prevents a person from relying on automatism as a defence for crimes involving assault or interference with the bodily integrity of another person.
At the SCC, Mr. Brown's conviction by the Alberta Court of Appeal was overturned and Mr. Sullivan and Mr. Chan's acquittals were upheld.
In writing for a unanimous Supreme Court, Mr. Justice Nicholas Kasirer said s. 33.1 of the Criminal Code violates sections 7 and 11(d) of the Charter in a way that cannot be justified.
In finding that s. 33.1 unjustifiably violated the accused's Charter rights, Mr. Justice Kasirer stated "The violations of the rights of the accused in respect of the principles of fundamental justice and the presumption of innocence occasioned by s. 33.1 are grave. Notwithstanding Parliament's laudable purpose, s. 33.1 is not saved by s. 1 of the Charter. The legitimate goals of protecting the victims of these crimes are holding the extremely self-intoxicated accountable, compelling as they are, do not justify these infringements of the Charter that so fundamentally upset the tenets of the criminal law. With s. 33.1, Parliament has created a meaningful risk of conviction and punishment of an extremely intoxicated person who, while perhaps blameworthy in some respect, is innocent of the offence charged according to the requirements of the Constitution."2
Introduction of Bill C-28: Canada's Action Against Voluntarily Extreme Intoxication
The Court made it clear, however, that these were not drunkenness cases, where the accused was merely intoxicated, and that in enacting s. 33.1, Parliament understood that alcohol alone is unlikely to bring about the delusional state akin to automatism and that most degrees of intoxication do not provide a defence to crimes of general intent, such as aggravated assault.3
The Women's Legal Education and Action Fund provided a written argument to the SCC as part of its deliberations. Understandably, victim's and women's rights groups were concerned that "allowing the defence to be used in cases of voluntary extreme intoxication would privilege individual rights over those of vulnerable groups, including women and children who disproportionately bear the risks of intoxicated violence."4
In the wake of the Brown and Sullivan decisions, Parliament promptly introduced Bill C-28, which provided for amendments to the Criminal Code, to address extreme intoxication and "close the gap in the law following the SCC decisions by ensuring that individuals who voluntarily consume intoxicants in a criminally negligent manner, become extremely intoxicated, lose control and harm others are held criminally responsible. Negligence in this context means a person has not taken enough care to avoid a reasonably foreseeable risk of a violent loss of control." 5 The amendments received Royal Assent and came into force on June 23, 2022.
Footnotes
1 R v. Brown, 2022 SCC 18, para. 2
2 R v. Brown, 2022 SCC 18, para. 13
3 R v. Brown, 2022 SCC 18, paras. 4 and 45
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