For once, Friday’s Supreme Court charge won’t leave us all talking about scary political divisions and snipers within the court. The court made a 9-0 decision on the fate of Article 33.1 of the Criminal Code, which explicitly eliminated the defense of “automatism” for intoxicated individuals who commit unlawful acts of violence. To go through the relevant history as quickly as possible:
In 1989, an alcoholic named Henri Daviault paid a friendly visit to a 65-year-old wheelchair-bound neighbor. He arrived at a local bar after much of what drunks call pre-gaming, and the pair each had a tub of brandy. The hostess fell asleep in her wheelchair, but was violently raped by her guest at 4 a.m. Daviault said he couldn’t remember anything after 6pm, but the bottle of brandy was empty when he finally came to. A pharmacologist testified that the amount of alcohol in the rapist’s system could induce a state of “automatic amnesia,” questioning Daviault’s responsibility for his actions.
Daviault was acquitted at trial because the Crown was unable to demonstrate his intent to commit an assault. Quebec’s court of appeals overturned that decision, but the Supreme Court reversed it and ordered a new trial. (Daviault was acquitted a second time at the end of that retrial, aided by the fact that his victim was no longer alive to testify against him.) Feminist groups, along with the general public, went into a minor frenzy. Then the Chrétien Liberals wrote Sec. 33.1, which states that if you voluntarily became intoxicated and committed a violent crime, it is not a defense to say that you “were not aware of, or unable to consciously control (your) behavior”.
The general public went into a little frenzy
For most of a quarter of a century, courts avoided the constitutionality of Sec. 33.1. But eventually hard cases that required a constitutional confrontation with 33.1 began to seep in. The Supreme Court did what was the most natural thing to do, discarding 33.1 as written. The decision, written by Judge Nicholas Kasirer, invests seas of ink to reassure women that: naturally protecting them from drunken animals is an important objective of the law. In fact, the court says it’s such an important target that it passes a number of elements in the classic Oakes test.
But sec. In the opinion of the court, 33.1 does not meet the “minimal impairment (of rights)” test. Despite the white heat of the original Daviault controversy, the Liberals had demonstrable choices other than simply avoid a form of criminal defense. They could have created a separate offense amounting to “intoxication leading to violence”, or they could have protected the intent claim by creating a provision of the Criminal Code that has an explicit standard of negligence ingrained. Their choice of a legal draft ensured that some innocent people would eventually be convicted for acts that, in the eyes of mainstream psychiatry, were completely beyond their control.
It is appropriate for the Supreme Court to consider the requirement for: gentlemen real as the sacred and ancient thing that it is. As we noted earlier, this amounts to a form of superconservatism that places certain fundamental principles of common law above Parliament or the Supreme Court. But you might also notice that scientific opinion plays a part here, and science seems to have changed in the days since Henri Daviault’s drink went wrong with a friend.
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Friday’s ruling concerns three cases in which men committed violence after to combine drink with drugs. Fortunately, in 1994, when the court heard Daviault’s appeal, the court took for granted that alcohol could only cause “automatism,” and released a rapist on that basis of evidence. However, in Friday’s ruling, Judge Kasirer explicitly emphasized that “These are not cases of intoxication. The accused in each of these professions used drugs that, they say, alone or in combination with alcohol, caused psychotic, delusional and involuntary behavior, reactions not generally associated with drunkenness.”
The judge later added: “While both Daviault and Parliament focused on ‘drunkenness,’ the parliamentary record and facts of this appeal and the (parallel) Sullivan and Chan appeals suggest that the defense of extreme intoxication, related to automatism, generally will not be honoured, relevant in cases involving only alcohol.” One tends to ask whether Parliament therefore has to be Article 33.1 alcohol-specific, or whether Judge Kasirer can promise that there will now be no wave of alcohol-specific acquittals.
The answer is that he doesn’t dare: science may still have surprises in store for the law. “Claims of extreme intoxication,” writes Kasirer, “should, of course, be judged by the facts and expert evidence presented at trial. It would be inappropriate here to rule out a finding of extreme intoxication by an intoxicant.” remedy only if medical and scientific evidence warrants such a conclusion.” It is hoped that the court’s understanding of ‘automatism’ in 2022 will be better than its 1994 understanding. It is also hoped that in educating gentlemen real to an unassailable status, we do not elevate preliminary and controversial scientific findings with it.