A recent decision by the Supreme Court of Canada (SCC) that restores the constitutionality around the criminal defence of automatism has caused widespread confusion and backlash from advocates against gender-based violence.
The decision by Canada’s highest court related to a case of a Calgary man who was charged with aggravated assault, breaking and entering, and mischief to property after consuming alcohol and “magic mushrooms.”
The court heard testimony that the accused suffered from hallucinations, “lost his grip on reality, left the party, and broke into a nearby home, violently attacking a woman inside.”
While the accused told the court he had no memory of the events in question, the woman suffered permanent injuries as a result of the attack.
At trial, the accused pleaded not guilty to the charges, arguing he was impaired to the point of “automatism.” The Supreme Court of Canada defines the defence of automatism as “when someone claims to have been so intoxicated or impaired that they had lost complete control of themselves.”
The problem with the defence of automatism was that section 33.1 of the Criminal Code prevents a person from using that defence for crimes involving assault or interference with the bodily integrity of another person.
While the judge agreed with the defence and acquitted the accused, the Crown appealed the case to Alberta’s Court of Appeal, which overturned the acquittal and resulted in a conviction.
On May 13, the Supreme Court restored the acquittal in a unanimous decision that determined section 33.1 violates sections 7 and 11(d) of the Canadian Charter of Rights and Freedoms.
“Convicting someone for how they conducted themselves while in a state of automatism violates principles of fundamental justice,” the decision reads. “Our criminal justice system is based on the notion of personal responsibility. 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.”
Parliament can address violence caused by extreme into
Additionally, the Court noted that Parliament has the ability to enact legislation that would address violence caused by extreme intoxication.
The Court emphasized that, “protecting 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.”
For Kerri A. Froc, an associate professor in the Faculty of Law at the University of New Brunswick, the decision was disappointing but not surprising.
Froc is the co-author of a Dec. 2021 report, Last Among Equals: Section 28, Women’s Equality, Extreme Intoxication and Violence Against Women. The 43-page paper argued in favour of the constitutionality of Section 33.1, while acknowledging that intoxicated violence is a gendered issue in terms of “who commits it and who bears the consequences.”
The paper highlighted devastating statistics about victims of intoxicated violence, noting women who have been sexually assaulted experience an “increased lifetime rate of attempted suicide.” Between 35 and 57 per cent of victims also report high rates of Post-Traumatic Stress Disorder (PTSD), that one study found that PTSD persisted up to 17 years in just under one-in-five victims.
As Froc’s paper explains, Section 33.1 took effect in the aftermath of a 1994 Supreme Court decision in R v Daviault, a case where a man successfully argued his chronic alcoholism put him in a state “akin to automatism” when he sexually assaulted a family friend after lifting the victim from her wheelchair.
“The scientific community at large also criticized the decision, rejecting the contention that consumption of alcohol alone could lead to an automatistic state, as that term was understood medically,” the paper reads. “The drafters of section 33.1 were motivated to promote the ‘equal participation of women and children in society’ and their entitlement to ‘full protection of the rights guaranteed under sections 7, 11, 15 and 28’.”
Froc’s paper also details how the defence that alcohol alone can induce a state akin to automatism is one that has been widely refuted.
“The available data does provide strong justification for the current legal position that mere intoxication is no defence to general intent crimes like sexual assault and aggravated assault, and, in light of the relationship between heavy consumption patterns and violence against women, some support for the notion that extreme intoxication is also implicated in violence against women,” the paper continues.
Court decision could discourage victims from coming forward
In an interview with rabble.ca, Froc expressed concerns that the Supreme Court’s decision could discourage victims of gender-based violence from coming forward.
“I think it’s really important that they’re obviously extending an invitation to Parliament to go back to the drawing board and try again and make it more clear, for instance, that a minimum standard of mens rea is required,” she said.
Froc believes one possibility the federal government can take would be having perpetrators of intoxicated violence see intoxication become a part of the elements of the offence, i.e. a charge of intoxicated sexual assault.
Froc took issue with the court’s references to women’s rights as “interests,” as well as the fact that the Supreme Court of Canada could have “shut the door on alcohol intoxication being used as a defence akin to extreme intoxication.” Instead, the court’s decision means that, according to Froc, “somehow, somewhere, you could have an expert paid by the defence to testify that alcohol intoxication caused the state of extreme intoxication and they should be acquitted.”
While Froc worries this decision could result in more victims of intoxicated violence fall through the cracks, she recognizes that the Supreme Court has made clear that a defendant would need strong expert evidence to prove that extreme intoxication resulted in automatism.
“We need to underscore the fact that just because someone consumes alcohol before, a sexual assault does not that they are going to be acquitted in some high bar,” Froc said, adding that the defence requires the perpetrator to lose all control over their body, essentially becoming a robot.
Ultimately, Froc wants to make one thing clear to the public:
“Women that have experienced sexual assault are concerned about women’s rights and violence against women. They should be concerned and they should be calling upon Parliament to act. At the same time, there’s no cause for people to think that just because alcohol was involved, does that automatically give someone who’s accused of sexual assault or violence a pass.”
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Nick Seebruch, editor
