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Lisa Silver, University of Calgary faculty of law

Alberta decision shows need for Supreme Court to weigh in on self-induced intoxication: law prof

Thursday, August 12, 2021 @ 4:01 PM | By Ian Burns

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The Alberta Court of Appeal has overturned the acquittal of a man who assaulted a university professor while naked and high on magic mushrooms, saying a lower court judge was in error when he ruled that a section of the Criminal Code dealing with self-induced intoxication was unconstitutional.

The court’s decision in R. v. Brown 2021 ABCA 273 has at its centre the case of Matthew Brown, who had been arrested after beating Janet Hamnett in her home after supposedly consuming between 14 and 18 drinks and an unknown number of mushrooms. But at a pretrial hearing in 2019, Court of Queen’s Bench Justice Willie deWit ruled that s. 33.1 of the Criminal Code, which holds that self-induced intoxication is not a defence in cases where a person “departed markedly from the standard of reasonable care generally recognized in Canadian society,” violated the Charter’s protections of life, liberty and security of the person. At trial, acquittals were entered on the basis that Brown’s actions were not voluntary, despite the Crown proving all of the facts underlying the offences.

But that decision has now been overturned by a unanimous Alberta Court of Appeal, with Justice Frans Slatter writing that it is not contrary to the principles of fundamental justice to hold a person accountable for what they do when they become extremely intoxicated voluntarily and injure others.

“Someone is not ‘morally innocent’ just because he or she did not intend the unforeseen, but reasonably foreseeable, consequences of his or her actions. Self-induced extreme intoxication is behaviour that is outside the purpose of s. 7 and unworthy of constitutional protection,” he wrote in the July 29 judgment. “The victims of crime also have the right to life, liberty and security of the person. [Section 33.1] provides a measured response to the problem of crimes committed under self-induced intoxication. It only applies to cases of interference with the bodily integrity of another person.”

For many years intoxication was not considered a viable defence in criminal cases, but in R. v. Daviault [1994] 3 S.C.R. 63 the Supreme Court tweaked that rule to say that an acquittal could be supported if the accused can prove extreme intoxication amounting to an absence of awareness, akin to a state of insanity or automatism. But public reaction to the decision was swift and negative, and the Chrétien government amended the Criminal Code to include s. 33.1 later that year.

People who take drugs and alcohol in reckless disregard of the possible risks must bear the consequences of their actions, Justice Slatter wrote.

“Who is to be held responsible for this? [Brown] essentially says no one, but is it not obvious that it is the respondent who is responsible because he is the one who voluntarily consumed the magic mushrooms, in the face of the objective risk of the effect they could have on him?” he wrote. “His victim should not be the only one who suffers the consequences of his voluntary choices.”

In contrast, Justice Ritu Khullar wrote that she felt s. 33.1 breaches the principles of fundamental justice but was saved by s. 1 of the Charter, which allows for reasonable limits on rights “as can be demonstrably justified in a free and democratic society.”

“This is a hard and close case,” she wrote. “Parliament made a difficult judgment call. It has chosen to hold people criminally responsible for violence arising from self-induced intoxication in a particular context and to deter people from such intoxication because it might lead to violence. It did so after examining a number of other options and it made a considered, defensible choice.”

 Lisa Silver, a criminal law professor at the University of Calgary

Lisa Silver, law professor at the University of Calgary

Lisa Silver, a criminal law professor at the University of Calgary, said s. 33.1 is “not a very well-worded section” of the Criminal Code which has led to judges coming to different interpretations of it. She noted a majority of the Ontario Court of Appeal (in R. v. Sullivan and Chan 2020 ONCA 333) came to different conclusion than their Alberta counterparts and struck down s. 33.1 as unconstitutional.

“That shows how difficult this situation is and why we need the Supreme Court of Canada to weigh in, because judges cannot agree on what 33.1 does or what means,” she said. “But I don’t point figures at any of these judges, because this is not an easy section to understand. So, if you read it and you can understand it, I will give you full grades in class.”

It is an open question as to why Parliament wrote s. 33.1 in such an unclear way, said Silver.

“I think the poor wording is just indicative of it being a very difficult issue that even the government finds difficult to find the answer for — they were under a lot of pressure to come up with an answer and I don’t blame them,” she said. “What happens is you get very unclear language and you get judges who just can’t agree on what it actually means and that is again why we need the Supreme Court here.”

Brown’s counsel Sean Fagan said in an e-mail he was planning to bring the matter to the Supreme Court, noting he had an appeal as by right in the case. He said he is working to have it heard alongside an appeal of Sullivan and Chan in October.

“Certainly, we are disappointed in the court’s decision, but we are not surprised that this issue will ultimately be decided by the Supreme Court of Canada,” he said. “[Section 33.1] has been ripe for constitutional picking for over a quarter century now, and Ottawa has always been in the distance on this litigation path. So, the question is not if, but when the Supreme Court will rule on R. v. Brown.”

A representative of the Alberta Ministry of Justice declined comment on the decision.

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