Supreme Court to rule on whether extreme intoxication can be used as a criminal defence

The highest court in the country heard arguments Tuesday on the constitutionality of a controversial section of the Criminal Code which says self-induced intoxication cannot be used as a defence.

The court will rule on whether criminal law forbidding the defence violates the Charter of Rights

A vendor bags psilocybin mushrooms at a pop-up cannabis market in Los Angeles, Calif. Thomas Chan was under the influence of 'magic mushrooms' when he killed his father. (Richard Vogel/The Associated Press)

The highest court in the country heard arguments Tuesday on the constitutionality of a controversial section of the Criminal Code which says self-induced intoxication cannot be used as a defence.

At issue were the cases of two Ontario men: Thomas Chan and David Sullivan.

In 2015, Chan — then a 19-year-old student — took a large dose of psilocybin (the compound in so-called "magic mushrooms") before stabbing his father to death and seriously injuring his father's partner at their home in Peterborough. 

Two years prior, Sullivan — a Whitby man with a criminal record — attempted suicide by taking the prescription medication Wellbutrin but ended up stabbing his mother under the influence of the drug. She survived the assault but later died of an unrelated heart attack.

Both men pleaded not guilty and were convicted. The Ontario Court of Appeal overturned those decisions.

It found that Section 33.1 of Canada's Criminal Code, which says an accused cannot claim a defence by reason of self-induced intoxication, infringed on the rights of both Chan and Sullivan under the Charter of Rights and Freedoms.

The court also ruled that the law banning an intoxication defence does not qualify as a reasonable limit on charter rights under Section 1 of the charter.

Prosecutors appealed the decision to the Supreme Court of Canada (SCC), which now has to decide whether Section 33.1 is constitutional.

An important question of justice, rights

Parliament introduced legislation barring a self-induced intoxication defence following the case of Henri Daviault.

Daviault went to trial on sexual assault. The trial judge concluded he had committed the offence but acquitted him because he had a reasonable doubt over whether the intoxicated Daviault possessed the minimal intent necessary to commit the offence of sexual assault.

The Supreme Court ordered a new trial, concluding that Daviault was so intoxicated he did not possess the mental awareness necessary to be convicted of a crime.

The ruling prompted a public outcry from, among others, women's advocacy groups who said they were alarmed by its implications.

In today's SCC hearing, Michael Perlin, representing the Crown, argued that the law does not violate the Charter.

"Section 33.1 of the Criminal Code conforms with the principles of fundamental justice," he said. "It reflects a reasoned policy choice that falls squarely within Parliament's broad discretion to prescribe conduct as criminal."

Justice Russell Brown took issue with that argument. He asked whether the Crown was interpreting a law meant to be read literally.

"I'm sorry, Mr. Perlin, I need to hear from you on that precise point — what is it in the text that allows you to make the interpretational argument that you're making?" he asked at one point early in Tuesday's hearing.

Supreme Court of Canada Justice Russell Brown frequently questioned the validity of the Crown's arguments in the case. (CBC)

Joan Barrett, another Crown lawyer, argued that S. 33.1 needs to be looked at in its proper context — particularly the harm that substance use and abuse can cause.

"Violence by those in extreme states of intoxication is a complex social issue that must be viewed in context," she said. "That context includes the devastating impacts it has on the charter rights of victims who are disproportionately women and children."

The Women's Legal and Education Action Fund (LEAF) later echoed that argument, telling the court today that the charter rights of victims must also be considered.

A number of provincial representatives from outside of Ontario spoke in favour of the spirit of the law.

"The availability and potency of modern chemical drugs leads regularly to extreme violence in every part of the country, " said Ami Kotler, representing the Office of the Attorney General of Manitoba. He added that allowing the defence could undermine public trust in the legal system.

Noah Wernikowski, representing Saskatchewan's government, said the law has important implications for deterrence.

"It deters people from self-inducing extreme intoxication, or intoxicating themselves to the point that they risk losing their ability to control themselves," he said.

"It puts the community on notice that all people will be held responsible for the acts they commit while extremely intoxicated."

Justice Malcolm Rowe asked whether the law was written with alcohol intoxication in mind, even though the cases of the two men involved hallucinogenic drugs.

"What it seems to me we're dealing with here is something that's quite different," he said. "To me there's a looseness about this that's problematic."

Unintentional harm

Lawyers representing Chan and Sullivan argued that the law is unconstitutional because it would deprive their clients of their rights to life, liberty and security of the person, as well as presumption of innocence. They also argued S.33.1 does not impose a reasonable limit on those charter rights.

Stephanie DiGiuseppe, the attorney representing Sullivan, said her client could not have foreseen the harm his suicide attempt would cause.

"Intentional violence and inadvertent violence are not the same thing," she argued. 

"If somebody hit someone else with their vehicle, we would be almost laughable to go to that person and say, 'We're going to convict you of assault.'"

Matthew Gourlay, representing Chan, said the Crown did not make a persuasive argument that Chan is a criminal.

"Our client, Thomas Chan, did something horrible when he was not in his right mind — but not every tragedy has a villain," he said. "The Crown in our case has never been able to articulate why Thomas Chan, in particular, needs to be convicted and punished as a criminal."

The court adjourned today and justices will return with a ruling at a later date.


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