Man acquitted in violent attack due to intoxication

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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?

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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.



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.


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

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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.


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.

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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.

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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.

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".

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Ontario Court of Appeal rules section 33.1 of criminal code unconstitutional thus allowing severe intoxication as a valid defence for sexual assault.



Misfit wrote:
Ontario Court of Appeal rules section 33.1 of criminal code unconstitutional thus allowing severe intoxication as a valid defence for sexual assault.

That's ridiculous. A very common requirement that judges often hand down as part of their sentencing involves telling people to refrain from consuming alcohol. Intoxication is no excuse, and on that, I agree with the right-wing tough-on-crime crowd. It's things like this that cause people to lose confidence in the legal system, whigh gives the right-wing tough-on-crime crowd ammunition.

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I believe that the Supreme Court of Canada made a ghastly mistake with their Daviault ruling. I want to know how it can be corrected.



Misfit wrote:

I believe that the Supreme Court of Canada made a ghastly mistake with their Daviault ruling. I want to know how it can be corrected.


The SCC can overrule itself when new facts present a different picture. For instance the right to bargain was not a Charter right only the right to association was said the SCC to the North West Territory employees but then it met the BC Liberal party's lawyers who ripped up all the public service contracts and said fuck you to the unions, its legal.

I haven't read the decision but the law that underlies it was around when I went to law school thirty years ago. Bad facts make for bad law is an old adage. Our justice system has the concept of not being held criminally responsible because of ones mental state so a man who killed his daughter with an axe did not get convicted of murder because he was dissociative and not mentally aware of his actions. I find that a stretch for sexual assault and drunkenness so maybe I need to read the fact situation to make any sense of this seemingly absurd ruling.

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From what I gather before the SCC ruling on Daviault, the legal stand was that if you drank yourself to a point of intoxication where you are no longer in control of yourself to be responsible, the choice to drink yourself to that state of intoxication acts as your intent to commit the crime.

The argument or one argument against the section 33.1 being unconstitutional is that it is not a crime to drink alcohol. Therefore the idea that the consumption of alcohol acting as the intent to commit a crime when it is no crime to drink is an infringement in their constitutional rights.


Couple of articles in the national post recently discussed this issue and the Daviault case, I thought they laid out the issues pretty clearly (the colby cosh one is clearly in favour of 33.1 being struck down and presents a case for it).

"Last week the Ontario Court of Appeal struck down Section 33.1 of the country’s Criminal Code: this is the provision introduced in 1995 that abolished the so-called “automatism” defence to criminal charges involving threats or violence. The language of the section is finicky, but its nature is pretty basic: the text begins with, “It is not a defence,” before going on to define the state of automatism. Or, more strictly, “self-induced intoxication” that deprives one of being capable of having the intent or will to commit a violent act.

In legal terms Sec. 33.1 was controversial because it represents a denial of the common-law requirement that persons cannot be convicted of a crime unless there was some intention to commit one. A crime must normally have a “mens rea,” a mental element. In political terms, it might be one of the more popular passages in the Criminal Code. When the Supreme Court upheld an automatism defence against a Crown appeal in its 1994 Daviault ruling, Parliament acted unusually quickly to outlaw the defence, with the support of both law-and-order conservatives and feminists.

The automatism concept often creeps into trials, when it does, after a man has gotten high on something or other (typically not alcohol) and done something horrifying and brutal to a woman. In the two cases that culminated in last week’s Ontario ruling, LEAF, the Women’s Legal Education and Action Fund, had done its heroic best as an intervenor to help save 33.1."   ....

"Parliament’s action in taking a species of defence altogether away from consideration by a judge or a jury has been reversed, in a way, for its lack of sophistication. There was no real sign in the record of a bona fide effort to preserve or even recognize the rights of a criminal defendant.

Some judges have hinted in the past that the right answer for Daviault-haters would be to invent a new offence that criminalizes intentional self-intoxication that leads to violence — thus attaching the mens rea of the offence to a culpable action. But Parliament simply declared that the automatism defence can never be used, and that’s that. (One subtlety in the new Sullivan ruling is that the eponymous Sullivan didn’t even mean to get high. He had supposedly tried to kill himself by taking an overdose of Wellbutrin, an antidepressant he was prescribed to quit smoking, and he ended up stabbing an “alien,” actually his mother, while in the grip of a known side effect. Perhaps the Ontario court was waiting all those years for an automatism case this favourable.)"

"The court did recognize that victims of such violence are victims, regardless of whether their attacker meant to hurt them or not.   “However, to convict an attacker of offences for which they do not bear the moral fault required by the charter to avoid this outcome is to replace one injustice for another and at an intolerable cost to the core principles that animate criminal liability,” the Appeal Court said.

Chan was ordered to stand trial again. Sullivan was acquitted.

The Women’s Legal Education and Action Fund, which intervened in the case, called the decision a setback for victims, particularly of sexual assault.

“We are dismayed that women’s rights to equality and dignity are not given more adequate treatment,” the organization said on Thursday. “It also risks sending a dangerous message that men can avoid accountability for their acts of violence against women and children through intoxication.”

Cara Zwibel, a director with the Canadian Civil Liberties Association, said the decision clarified the legal situation around use of the intoxication defence. While she sympathized with concerns the ruling would undermine protections for sexual assault victims, she said they were overblown.

“I don’t see it as seriously undermining the rights of victims,” Zwibel said. “This is a rarely used provision; it’s not this widespread, systemic concern.”

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Yes, well, before Davisult, the legal interpretation was that your actions to get yourself intoxicated acted as your mens rea. It is as though women in Canada have no constitutional right to not get assaults. I have pointed out before, men have successfully used this defence and judges have not properly used the criteria set out in the Daviault ruling to disallow inappropriate arguments of severe intoxication.

Too many people are using this defence and too many are getting acquitted due to lax interpretations of the Davisult protocols. And judges don't seem to want to be properly educated now do they!

Here is my question...

yiu can use extreme intoxication to avoid criminal responsibility for assault. Can you use extreme intoxication as a legal defence for drinking and driving?