Fact-Checking Online Discourse Around The Supreme Court’s Ruling on Intoxication Defences

The above post by @raperelief on Instagram shares a screenshot of a few paragraphs of a Global News article, “Canada’s top court says voluntary extreme intoxication a defence in violent crimes.” 

The screenshot does not display the full article, and does not elaborate on the context of the headline. Instead, it leaves interpretation up to the viewer. The interpretation gathered from said post by the seven thousand commenters was that voluntary drunkenness would now be considered a defence to violent crimes in Canada, the post targeting sexual assault especially. This conclusion is not true, and leads to harmful fear-mongering misinformation being spread on Instagram and other social media platforms including TikTok and Snapchat.

The caption reads, “Terrible decision coming down from the Supreme Court of Canada. Free pass for men to rape, beat and kill women.” Though it mobilises the user’s personal frustration with the court decision, the caption is misinforming the larger audience the post has gathered by implying that the court’s decision allows individuals to use intoxication as a defence for crimes of general intent, such as assault or sexual assault, which it doesn’t.

The cases involved in the Supreme Court’s decisions are R v. Sullivan, R v. Chan and R v. Brown. In all three cases, the defendants were charged with aggravated assault while intoxicated. In the cases of Chan and Brown, they were impaired by psilocybin, otherwise known as magic mushrooms, while Sullivan had overdosed on prescription drugs. Brown and Sullivan were acquitted due to them being in a state of non-insane automatism as a result of the drugs taken, and Chan was ordered a new trial. 

These cases render section 33.1 of the Criminal Code unconstitutional as it violates sections 7 and 11 of the Charter of Rights and Freedoms. 

Sections 7 and 11 of the Charter of Rights and Freedoms are under the legal rights heading of the document. Section 7 states that every Canadian has the right to life, liberty, and security of person. And section 11 explains the rights of an individual accused of a crime in the Canadian justice system, the specific right being violated is (d): the right to be presumed innocent until proven guilty in a fair trial.

Section 33.1 of the Criminal Code states that there is no defence of intoxication that forgoes intent available to those who are self-induced. Section 33.2 states that those who are intoxicated by self-inducement are still criminally responsible for their actions and this section remains intact. However, because of the general wording in section 33.1, it does not allow those who are self-induced to use non-insane automatism as a form of defence. Non-insane automatism could be applied to cases of extreme intoxication where the substance consumed renders the person in a psychotic state of automatism, where they have no conscious control of their bodies.

The Supreme Court judgement on R v. Brown explicitly states, “The outcome of the declaration of unconstitutionality with respect to section 33.1 has no impact on the rule that intoxication short of automatism is not a defence to violent crimes of general intent, such as assault or sexual assault.”

In the Instagram post by @raperelief, the noun “intoxication” and the verb “to be intoxicated” are used five times, but the true legal definition of the term “automatism” is only used once and is not explained. 

Oxford defines intoxication as “the state of being intoxicated, especially by alcohol”. The definition, of course, includes other substances, but culturally, the word is connected especially to alcohol. This leads to the misconception that this precedent provides a legal defence specifically for extreme self-induced drunkenness. It does not. 

Automatism, which is left undefined by @raperelief’s post, is the performance of actions without conscious control or intent. Automatism is culturally related to actions performed during sleepwalking, seizures, or a stroke. 

The Instagram post also states that “Under Section 33.1 of the Criminal Code, extreme intoxication—formally known as non-insane automatism—cannot be used as a defence in criminal cases where the accused voluntarily ingested the intoxicating substance.” 

While extreme intoxication can be a type of non-insane automatism, extreme cases of sleepwalking have also been described as non-insane automatism, such as in R v. Parks. Non-insane automatism is any involuntary action that doesn’t arise from a “disease of the mind”.

Another post made by Toronto Metropoltian University (formerly Ryerson) Student Union and the Centre For Safer Sex and Sexual Violence Support, states:

“Intoxication is not consent. Intoxication is not an excuse. Intoxication is not a justification. Intoxication is not a defence.”

There is nothing in the recent precedents that disagree with any of these statements. The first three of those statements are not discussed in the precedents, and the last is not relevant.

Under section 273.2(a)(i) of the Criminal Code, it is stated that intoxication cannot be used to excuse or justify sexual assault by claiming belief in consent.

The court’s recent decision is to allow a defendant to take up the defence of non-insane automatism, where they voluntarily consume the substance that later rendered them automatic and unconscious. This is not to say that this defence will even be successful in most cases, as automatism usually requires expert opinion evidence to support the claim as it is a psychotic condition.

The Supreme Court also agrees that intoxication is not a defence. In the precedent R v. Brown, the judgement states: “Criminal liability for violent conduct produced by alcohol alone, short of the psychotic state akin to automatism experienced by B, is not in issue.” 

It is, however, true that a few legal scholars have expressed some concern regarding the Supreme Court’s ruling since it was left quite open-ended. Kerri Froc, associate professor of law at the University of New Brunswick stated in an interview with Global News that although it was said that there’ll have to be expert evidence brought, no matter what the intoxicant is, the court never ruled out any kind of intoxicant being used for extreme intoxication defence. This means that defendants could try to use non-insane automatism as a defence for cases involving alcohol, although according to the evidence presented before Parliament, its success rate would be low to zero.

“We are carefully reviewing the decision to determine its effect on victims as well as the criminal law. It is critically important to emphasize that today’s decision does not apply to the vast majority of cases involving a person who commits a criminal offence while intoxicated,” Minister of Justice and Attorney General David Lametti said in a statement cited by multiple media outlets. 

In the aforementioned Instagram post, the repetition of the word intoxication is misleading and diminishes the true topic of the recent precedents. Intoxication is not synonymous with automatism, and they fall under very different circumstances and legal requirements.