Man acquitted in violent attack due to intoxication

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Misfit Misfit's picture
Man acquitted in violent attack due to intoxication

An Alberta student has been acquitted of assault of a professor in her home while intoxicated on mushrooms.

The Supreme Court of Canada ruled in the Davisult case that a man who consumed extreme amounts of alcohol to the point of automatism was not responsible for his actions.

 

The Federal government enacted section 33.1 of the criminal code to state that if someone voluntarily consumes alcohol to that level of intoxication that the consumption of alcohol constitutes intent to commit a crime.

Section 33.1 has been deemed unconstitutional by the Ontario Court of Appeal. 

But we were assured that the burden of proof was set too high to ever garner an acquittal.

a man broke into a woman's home in the middle of the night naked, assaulted her while on mushrooms and was acquitted.

What, if any, are the legal options available to hold men accountable for assaults while intoxicated?

https://www.google.ca/amp/s/www.cbc.ca/amp/1.5483053

Misfit Misfit's picture

There is also a case before the courts in New Brunswick. A lawyer accidentally ate wild mushrooms, became difficult and urinated in the back seat of a police car.

https://www.google.ca/amp/s/www.cbc.ca/amp/1.5489000

 

lagatta4

Well, there is a hell of a lot of difference between pissing in a patrol car and beating up or raping someone, or even killing them.

Pondering

So that means if someone on mushrooms kills someone while driving he shouldn't be held responsible either. 

Misfit Misfit's picture

Pondering wrote:

So that means if someone on mushrooms kills someone while driving he shouldn't be held responsible either. 

This is what really concerns me. A guy voluntarily consumed mushrooms, broke into a woman's home and assaulted her breaking bones.

The Docket podcast covered this very issue I think last year and assured us that the burden of proof that the Supreme Court of Canada laid out was set far too high to get an acquittal so not to worry. Well, now I am worried.

And yes, there is a difference between urinating in the back seat of a police cruiser vs assaulting someone while intoxicated. If a person can be deemed too intoxicated to be accountable for the lesser it stands to reason that a person can be deemed unaccountable for ones actions again for a more serious offence like assault causing bodily harm on another human being.

I would like to know if this Calgary assault acquittal can be appealed or if the crown does intend to appeal because this sets a very dangerous precedent. A person can knowingly and willingly get themselves intoxicated to the point of obliviousness and they have constitutional protection from accountability for the crimes that they commit.

And if the New Brunswick mushroom consumer gets acquitted for the same legal defence then we have two cases where people have been acquitted for a crime that they committed while they were intoxicated because they were deemed to lack the intent to knowingly and willingly commit a crime.

I honestly hope that there are other legal avenues to pursue in this.

The Docket podcast with Michael Spratt and Emillie Taman covered this very mushroom acquittal on this weeks show if anyone is interested.

Paladin1

Simple. He was high and not in his right state of mind so he's not an evil person. He still did it.  He chose to take the illegal drugs so he's responsible for what happened. Throw him in jail.

Misfit Misfit's picture

Paladin1 wrote:

Simple. He was high and not in his right state of mind so he's not an evil person. He still did it.  He chose to take the illegal drugs so he's responsible for what happened. Throw him in jail.

I am not a lawyer. This sounds nice but it isn't legal. Before the Daviault case, the law was that if you drank to the point of extreme intoxication that you choosing to consume that much alcohol made you commit the crime with intent even though you were too intoxicated to know at the time that you had committed a crime.

The Daviault case successfully challenged this because it was seen as an infringement on an accused's section 7 and 11(d) rights under the charter.

So the Federal government enacted section 33.1 of the criminal code to reinstate the fact that if you knowingly and willingly consumed that much alcohol then your alcohol consumption choice then acts as your intent to commit the criminal offence.

This section of the criminal code has been successfully challenged on appeal as being unconstitutional.

The Daviault decision in the Supreme Court did set a very high bar for the accused to prove that they were so highly dangerously intoxicated that they were unaware of their actions and therefore were not responsible for the crime that they had committed. We were assured that this threshold was virtually unattainable to reach and that no one had ever been able to succeed in making that defence ever since Daviault.

So, my question is, did the judge make an error in law arguably by somehow lowering that threshold that was set by the Supreme Court of Canada? Can this be an argument for appeal?

 Also, can an argument be made that mushrooms are not alcohol therefore do not apply to the same threshold since they are hallucinogenic? For instance, it is ok to assault in Canada if you consume mushrooms but the bar remains high as set out in Daviault if the drug of choice is alcohol?

This acquittal has a very direct effect on women who are assaulted by men who claim that they were too intoxicated to be held criminally responsible for their actions.

Misfit Misfit's picture

For those interested, here is Elizabeth Sheehy's comprehensive 36 page analysis of Daviault and offers recommendations for Parliament to consider. 
 

Elizabeth Sheehy is a professor of Law at the University of Ottawa. She is a prominent, if not foremost, expert on violence against women and the law in Canada.

https://poseidon01.ssrn.com/delivery.php?ID=662005122118000106081123116103021030024072085041037020022064118014064096031095017007055063002017114034038001070007031126070112024015017023051114029008005081106089037064037001108125091084072093104070000124113108109091116127114112092016015070105113120&EXT=pdf

Apparently, acquittals on intoxicated assault offenses have occurred since Daviault. This particular case is nothing new.

My next question then is why has the Liberwl government not put these recommendations up for consideration?

Also of note, judges have been awarding acquittals by using a lower standard than what is laid out by the Supreme Court of Canada Daviault case.

On page 21, Sheehy recommends actually codifying the Balance of Probabilities in a statute. According to her, "this is already the standard as stated in Daviault, but it is clear from the P.E.I. case that some judges are not aware of this aspect and are applying the wrong test".