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Barring intoxication defence in assault cases violates Charter rights: Conron

Defendants should be allowed to raise a reasonable doubt about their mens rea as a result of extreme drunkenness to allegations of sexual assault, even though a man who received court permission to argue that point was found guilty, London criminal lawyer Carolynn Conron tells AdvocateDaily.com

In a recent decision, Ontario Superior Court Justice Nancy Spies affirmed the unconstitutionality of s.33.1 of the Criminal Code, which bars the use of self-induced intoxication defence in cases of general intent, such as assault.

The judge found the provision was of "no force and effect" because it violates both s. 7 of the Charter, which protects the “right to life, liberty and security of the person,” as well as s.11 (d), which enshrines the principle that a criminally accused person is innocent until proven guilty.  

“If a person is so drunk that he or she can’t even form the intent to commit a crime, then it’s not appropriate to apply the stigma of a criminal conviction to that person,” says Conron, principal of Conron Law Professional Corporation. “If intoxication interrupts the intention, to the point that they are basically an automaton, then it flies in the face of the principles of fundamental justice to find them guilty beyond a reasonable doubt.  

“This case recognizes that there is a reasonable balance between the interests of society to protect the victims of violence and the rights of individual defendants in the prosecution of these offences,” she adds.

The defendant in the case acknowledged having sex with his roommate’s girlfriend but argued he was so intoxicated by a mix of alcohol, marijuana and a date rape drug that he didn’t know what he was doing.   

In order to obtain a conviction, the Crown must prove two elements of an offence: the actus reus, or guilty act, and the mens rea, or guilty mind, says Conron, who was not involved in the case and comments generally.

Even if the drunkenness defence is raised, she says there’s no guarantee of success, noting that accused persons must convince a judge that their intoxication was so extreme it induced a state of automatism.

“You’re raising a reasonable doubt about the mens rea element of the offence due to the absence of voluntary action,” Conron says.  

Indeed, the man in the recent case was ultimately found guilty of sexual assault, even after the court allowed him to advance that defence.

According to a Global News report, the judge rejected his evidence that he had taken drugs, found inconsistencies in the man's testimony, and determined he was not in a state of automatism at the time of the assault.

Conron says the bar on the self-induced intoxication defence has a long history, and that its repeated resurfacing seems to be based on “moral reasoning” over disapproval of excessive drinking.

Imported from ancient English law, she explains it ran into trouble in the 1980s when the Charter took effect.

In a landmark 1994 Supreme Court of Canada decision, the nation’s top court upheld the acquittal of a 72-year-old man accused of sexually assaulting a wheelchair-bound 65-year-old woman.  

The man, a chronic alcoholic, had argued he was too drunk to form an intent to carry out the crime, and the majority of the court ruled it would violate his Charter rights to rob him of the chance to advance that argument.  

The following year, the federal government updated the law in an attempt to account for the Supreme Court’s concerns, but the new provision has since been found in violation of the Charter by several courts.

“Justice Spies’ decision effectively affirmed that those previous declarations were still in effect,” Conron says.  

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