Law360 Canada (August 25, 2026, 9:14 AM EDT) --

John L. Hill

Some criminal cases seem to cry out for punishment. Others force criminal law to ask a more fundamental question: can a person be held criminally responsible for conduct he did not consciously control?

The recent acquittal of a 38-year-old Toronto father accused of attacking a 7-year-old girl is one of those cases.

According to the Toronto Star’s Aug. 19 report, Ontario Court Justice Mara Greene found that the accused was in a state of cannabis-induced psychosis amounting to extreme intoxication or automatism when he chased a family through a North York, Ont., neighbourhood, threatened to kill them and attacked the young girl, punching and choking her in front of her mother. The newspaper did not name the accused.

It is a disturbing set of facts. It is also a remarkable illustration of one of the most difficult boundaries in criminal law: the boundary between intoxication and involuntary conduct.

The accused had no criminal record. He had used cannabis occasionally for years without experiencing anything resembling the episode in 2023. On the day in question, he was alone at home. He had consumed a particularly potent cannabis product called Tiger Blood, purchased legally after a recommendation from a dispensary employee. He could not remember how much he had consumed.

His subsequent behaviour was bizarre and frightening. He emerged from his home wearing only a towel. The towel slipped off as he pursued the family. He reportedly alternated between saying, “I will kill you” and “I will not kill you.”

Most significantly for the legal issue, he had no memory of the attack.

The Crown argued that, regardless of any effect cannabis had on him, his conduct remained voluntary. The fact that he complied quickly when police ordered him to the ground and could answer some questions at the police station was relied on as evidence that he retained sufficient control over his behaviour.

Alternatively, the Crown argued that he should be found not criminally responsible on account of a mental disorder.

Justice Greene rejected both propositions.

The evidence from forensic psychiatrist Dr. Gary Chaimowitz persuaded her that the accused’s conduct had to be considered as a whole. Although there were moments when he appeared responsive and aware of his surroundings, there were also periods of profound disorientation, paranoia, grandiose thinking and disordered thought.

When police asked whether he wanted a lawyer, for example, he said he wanted actor Neil Patrick Harris.

That strange response was not simply evidence that the accused was very high. It was evidence capable of supporting the much more demanding conclusion that he had lost the capacity to understand or consciously control what he was doing.

That distinction is critical.

The law does not permit an accused to escape responsibility merely by saying, “I was drunk,” or “I was high.”

Indeed, the Supreme Court of Canada made clear in R. v. Brown, 2022 SCC 18 that ordinary intoxication is not a defence to violent crimes. The constitutional problem arose only in the unusual circumstance where intoxication becomes so extreme that the accused is in a state akin to automatism, a condition of being unaware of his actions or incapable of consciously controlling them.

That is an extraordinarily high threshold.

In Brown, the Supreme Court struck down the former version of s. 33.1 of the Criminal Code because it could impose criminal liability even when the Crown could not establish the voluntariness or fault required for a criminal conviction. The court held that this offended fundamental principles protected by ss. 7 and 11(d) of the Charter.

Parliament responded rapidly. Bill C-28 received royal assent on June 23, 2022, creating the present version of s. 33.1.

The new provision attempts to strike a constitutional balance.

Under s. 33.1(1), a person who, because of self-induced extreme intoxication, lacks the general intent or voluntariness ordinarily required for a violent offence can still be convicted if, before entering that state, the person “departed markedly from the standard of care expected of a reasonable person” in consuming intoxicating substances.

The provision therefore shifts the focus back to what happened before the extreme intoxication occurred.

Was the accused criminally negligent in getting himself into that condition?

Section 33.1(2) directs the court to consider the objective foreseeability that consumption of the intoxicant could produce extreme intoxication and lead the person to harm someone else. The court must also consider all relevant circumstances, including the steps the accused took to avoid the risk.

This is important because the new law does not say that anyone who becomes extremely intoxicated and commits an assault is automatically guilty; quite the opposite.

The federal Department of Justice has explained that the new provision requires the prosecution to establish criminal negligence. A marked departure is conduct that falls far below what would be expected of a reasonable person in the circumstances. Objective foreseeability asks what a reasonable person should have known, rather than simply what the accused actually knew. That distinction appears to have been decisive in Greene’s ruling.

The Crown’s strongest argument might seem obvious: cannabis is intoxicating. A person who consumes a very potent strain assumes some risk. But that is not quite the legal question.

The question was whether a reasonable person in the accused’s circumstances would have foreseen the risk of becoming so intoxicated that he would enter a state of automatism and violently attack another person.

Those are two very different propositions. Justice Greene rightly accepted that the accused did not subjectively foresee what happened. More importantly, she concluded that his lack of foresight was objectively reasonable. That conclusion was based on the particular circumstances.

He was an experienced but apparently only occasional cannabis user. He had never experienced this kind of reaction. He obtained the product legally. He told the dispensary employee what he wanted it for and relied upon the recommendation he received.

Crucially, when he began experiencing a serious reaction, the evidence suggested he tried to address it. He called his wife and asked her to come home. He took a shower. He tried to lie down. The towel around his waist was apparently the result of the shower immediately preceding the bizarre sequence of events.

Those facts may seem almost incidental. Legally, they were anything but. Section 33.1 expressly requires the court to consider “anything that the person did to avoid the risk.”

The judge was therefore not simply deciding whether cannabis can cause psychosis. She was deciding whether this particular accused had committed the degree of fault required for criminal liability. The evidence led her to conclude that he had not.

The verdict is understandably difficult to accept. A young child was allegedly attacked. She and her family were subjected to a terrifying experience. There is no question that the consequences were serious.

Justice Greene acknowledged as much, describing the offence as serious and recognizing that the verdict was unsatisfying for the victims and, in many respects, for society as well.

That acknowledgment is important. The criminal law does not operate on the premise that an acquittal means nothing bad happened. Nor does it mean that the victim’s experience was somehow less real. It means something narrower and more fundamental: the state has not proved the accused legally responsible for what happened beyond the standard required for a criminal conviction.

Criminal law is concerned not merely with the physical act but with the circumstances in which it occurred and the accused’s state of mind and control. An involuntary act may be horrifying without being criminal. That is not a loophole. It is part of the foundation of criminal responsibility.

However, a particularly interesting aspect of the case deserves attention beyond the courtroom.

The accused obtained the cannabis from a lawful retailer. The product was apparently described as very strong. He told the employee what he wanted it for and relied upon the recommendation.

The case therefore raises an uncomfortable question for a society that has legalized cannabis: how much responsibility should an ordinary consumer bear for an unforeseeable reaction to a legally purchased product?

The Ontario Cannabis Store’s own warning is essentially “start low and go slow,” while acknowledging that individual reactions can vary.

That variability presents a difficult problem for criminal law. If a person consumes an intoxicant knowing that it has previously caused them to lose control, the foreseeability analysis may be very different. Likewise, someone who deliberately consumes enormous quantities of a substance in circumstances where a violent loss of control is reasonably foreseeable may face criminal responsibility under s. 33.1.

But this case appears to have presented the opposite circumstances. The accused had no history of such reactions. He had not apparently set out to become severely intoxicated. He obtained the product through a lawful retail system and relied on the retailer’s advice. When he began to feel that something was seriously wrong, he attempted to mitigate its effects.

On those facts, the judge found no marked departure from the standard of care. That is precisely the kind of individualized assessment the amended legislation requires.

This decision should not open the floodgates to intoxication defences. The accused must first establish the extraordinary proposition that he was in a state of extreme intoxication, a condition defined by s. 33.1(4) as intoxication that renders a person unaware of, or incapable of consciously controlling, their behaviour. That is much more than being drunk, stoned, confused or uninhibited.

Expert psychiatric evidence will often be critical. Here, Chaimowitz distinguished the accused’s condition from ordinary severe impairment. Had the accused merely been extremely intoxicated without becoming psychotic, the symptoms would have been expected to be less severe and to dissipate more quickly. Instead, his symptoms persisted and included psychotic features.

The Crown’s argument that he displayed moments of awareness illustrates another difficulty with automatism cases. Human behaviour does not necessarily become uniformly irrational simply because a person is in an altered state. A person can perform apparently purposeful acts while lacking the conscious control required for criminal responsibility.

The court therefore had to look at the entire sequence rather than isolate the few moments when the accused appeared responsive. That is what made the psychiatric evidence so important.

There is perhaps a larger lesson here for both cannabis users and the criminal law.

The legalization of cannabis did not eliminate the possibility of serious impairment. Nor did it make every consequence of cannabis use foreseeable to every consumer. At the same time, a product being legal does not mean its use is risk-free.

The law now occupies an uneasy middle ground. It recognizes that extreme intoxication can, in extraordinarily rare circumstances, destroy the voluntariness required for criminal liability. But it also imposes responsibility when the person was criminally negligent in creating that condition. That is a sensible constitutional compromise. It protects the public against people who recklessly create the risk of violent loss of control while preserving the principle that the criminal law should not punish a person for an entirely involuntary act when the person could not reasonably have foreseen the danger. The Toronto case is therefore not really about a “cannabis defence.” It is about criminal fault. The accused did something terrible. The evidence apparently established that he did. But the trial judge was not asked merely whether he was the person who caused the injuries. She was asked whether the Crown had proved that he was criminally responsible for doing so. On the facts reported, she concluded that it had not.

That distinction may be deeply unsatisfying. It may even seem counterintuitive. But criminal law sometimes produces its most difficult verdicts precisely when the facts make the result hardest to accept.

The law’s answer in this case was that responsibility cannot simply be inferred from the horror of the consequences. Where a person has entered a genuine state of automatism, the Crown must still establish the fault necessary to make the resulting violence a crime. And, in this unusual case, the evidence did not establish it.

John L. Hill practised and taught prison law until his retirement. He holds a JD from Queen’s and an LLM in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.

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