Baranyai: Under intoxication defence, society still needs protection


The “temporary insanity” defence is nothing if not sensational.

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The “temporary insanity” defence is nothing if not sensational. Innovative applications stretch from the acquittal in 1859 of Daniel Sickles – a U.S. Congressman who staked out his wife’s lover in Lafayette Square, shot him three times, then surrendered himself – to the even more notorious trial of Lorena Bobbitt, a battered wife who mutilated her husband with a kitchen knife.

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Bobbitt was acquitted in 1994, the same year Canada’s Supreme Court opened the door to the defence of “extreme intoxication,” a variation on temporary “insanity.” The court determined a person can be so drunk or high, they are in a state akin to automatism or psychosis, and cannot be held criminally responsible, even when they voluntarily put themselves in that condition.

The case involved Henri Daviault, a chronic alcoholic convicted of sexual assaulting a 65-year-old woman in a wheelchair. He consumed seven or eight beers before he delivered a 40-oz bottle of brandy to his wife’s friend, then drank most of the bottle himself, assaulted the woman and blacked out. The court ordered a new trial, giving Daviault the opportunity to argue he was too impaired to act with intent.

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Victims’ groups recoiled in horror. People generally balked at the idea a man can be so blind drunk, his actions are involuntary – yet somehow not too drunk to sustain an erection – and that such harmful behaviour could have no criminal repercussions.

Within a year, Parliament shut the door on invoking the defence for violent crimes. The Supreme Court recently ruled that limitation, contained in s. 33.1 of the Criminal Code, unconstitutional.

In doing so, the court expressed doubt that alcohol alone can produce such a state. The justices were reviewing three cases involving drug-induced psychosis. They emphasized the legal remedy applies in the rarest of circumstances.

A couple years ago, two law professors, Elizabeth Sheehy and Isabel Grant, looked into how often the extreme intoxication defence actually was invoked in the nine months between Daviault and legislation restricting its use. Their search of case law and media reports identified 23 cases. The defence was successful in seven; five of these involved alcohol alone. Five of the seven successful defences involved violence against women.

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The findings cast doubt on the notion such a defence, once available, would be extremely rare. They further noted the repercussions for crimes such as assault, sexual assault and criminal harassment, which have no fallback charges when intent cannot be established, the way murder can be reduced to manslaughter. “Without s. 33.1, the defence of extreme intoxication results in full acquittal, such that no constraints or treatment can be ordered for someone who has perpetrated grave harm on another person.”

The court diversion system offers dramatically better options when an episode of psychosis is the result of serious mental illness. Depending on the circumstances, a person charged with a minor offence may avoid charges if they voluntarily fulfill certain conditions, such as a treatment program. If they don’t complete their treatment, they go back into the court system.

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This approach makes a lot more sense than punishing harmful behaviour that is outside a person’s control and committed without intent. And it certainly makes more sense than sending them home scot-free with no support.

The court is protecting the bedrock principle involuntary behaviour cannot be criminalized. It noted s. 33.1 could meet this constitutional test if it specified a loss of control was reasonably foreseeable when the perpetrator engaged in substance use.

If alcoholism and addiction are illnesses, can we really say excessive substance use is voluntary? Better to find options that both protect society and support recovery.

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