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    Should the Defence of Voluntary Intoxication Be Available in Criminal Trials?

    A court ruling out of Ontario is making waves for some pretty controversial reasons. 

    The decision involves not one, but two extremely violent crimes. Both were alleged to have been committed by men while under the influence of intoxicating substances. 

    In one case, a high school student named Thomas Chan stabbed and killed his father after eating magic mushrooms. He also severely injured his father’s partner in the drug-induced episode.

    In the other case, David Sullivan tried to kill himself by overdosing on a prescription drug. Instead of dying, however, he entered into a drug-induced psychotic episode, leading Sullivan to believe that his mother was an alien. He repeatedly stabbed her. Thankfully she survived the attack. 

    Although both men were convicted at trial, the appeal court overturned their convictions. In doing so, it struck down a well-established section of the Criminal Code, declaring it as unconstitutional and finding that it stands at odds with principles of fundamental justice. 

    The section in question is section 33.1. It deals with voluntary intoxication and general intent offences by prohibiting the defence of automatism in cases of violence where an accused’s persons intoxicated state was self-induced.

    Although it sounds rather insipid, section 33.1 was a late addition to our criminal laws. It was passed in 1995 as an amendment to the Criminal Code following public backlash over the landmark Supreme Court of Canada ruling in R. v. Daviault.  This case recognized extreme, self-induced intoxication as a valid defence against sexual assault. 

    While many were outraged at the Daviault decision, the basis for allowing such a defence is well-rooted in law. 

    After all, most offences require a person to have acted voluntarily. This means that they must have acted with a willing mind or as a result of their own imperative.

    This is technically referred to as mens rea

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    Mens rea is defined as the intention or knowledge of wrongdoing that constitutes part of a crime in conjunction with the actus rea, which is the criminal act itself.  

    Section 33.1 is a legal anomaly as it effectively does away with mens rea, substituting it instead with self-induced intoxication. It is an exception in the law, implemented due to public opinion. 

    By effectively barring an otherwise viable defence on the basis of not much else than public opinion, section 33.2 is a highly contentious within the legal community. 

    This, it seems, was recognized by the court. 

    However, the decision has been met with mixed reviews. 

    Many are voicing concern about the impact that this decision could have. They see it as a free pass to commit violent assaults under the guise of intoxication. 

    The Women’s Legal Education and Action Fund, for example, came out against the ruling almost right away. This organization felt that it sets a dangerous precedent, causing concern for women’s rights.

    In a statement to the media, LEAF said that the case sends a “…dangerous message that men can avoid accountability for the acts of violence against women and children through intoxication.”

    Both federal and Ontario New Democrats have also spoken out against the decision, urging its swift appeal.  

    But other groups have been more conservative in their reaction. The Canadian Civil Liberties Association called concerns unwarranted, pointing to the fact that this defence is rarely used—and when it is, it is extremely difficult to prove. 

    Moreover, eradicating the availability of an otherwise feasible defence has the potential of undermining our justice system—no matter how uncomfortable that defence may make us feel. Eradicating a defence related to substance abuse also carries additional risk. It carries the risk of fundamentally misunderstanding and mistreating serious addictions issues, which disproportionately affect more marginalized communities. 

    Simply put, if section 33.1 is allowed to stand, we run the risk of punishing a persons’ intoxication, rather than their crime.  

    In rending its decision, the court acknowledged trauma and violence suffered by the victims in both cases but also said that convicting a person for an act they did not mean to commit and in which they bore no moral blameworthiness for simply cannot stand in a free and democratic society. 

    A spokesperson for the Ontario Attorney General indicated that the Crown will file an appeal. The case is likely to go before the Supreme Court of Canada before the end of the year. 

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