Getting high on drugs is like walking around with a loaded gun, a Supreme Court judge said in a hearing on Tuesday, and asked a criminal-defence lawyer why someone who is in a state of self-induced psychosis should not be convicted if the gun goes off.
The question from Justice Michael Moldaver went to the heart of the issue before the country’s highest court – an issue unresolved for more than a quarter-century. In 1995, Parliament passed a law disallowing the defence of extreme intoxication to the point of automatism in violent crimes. Just months earlier, the Supreme Court, in one of its most controversial rulings, involving the sexual assault of a 65-year-old woman in a wheelchair, said the defence could be used.
On Tuesday, the court was considering two cases of violence and extreme intoxication from Ontario. In one, a youth, Thomas Chan, had stabbed his father to death while high on magic mushrooms and saying, “I am God.” In another, David Sullivan, in an apparent trance after attempting to overdose on antidepressant medication, stabbed his mother, who survived. (He stopped when she called out, “David, I’m your mother.”)
The issue for the court is whether Parliament has the authority to protect the public by criminalizing violence that the accused persons did not know they were committing. After Mr. Chan was convicted of manslaughter and Mr. Sullivan of aggravated assault, the Ontario Court of Appeal unanimously threw out the convictions, saying the ban on the defence violated the principle against punishing the morally innocent, as protected by the Charter of Rights and Freedoms.
Justice Moldaver, himself a former criminal lawyer, wondered if those who willingly get high on hallucinogenic drugs truly are morally innocent.
“It’s like walking around with a loaded gun, and that’s what we’re talking about, it seems to me,” he told Stephanie DiGiuseppe, a lawyer representing Mr. Sullivan.
Ms. DiGiuseppe responded that the law at issue proscribes conduct that is a “marked departure” from the standard of “reasonable” Canadians. Yet more than 50 per cent of Canadians have tried illegal drugs other than marijuana, she said.
She added that entering a psychotic and violent state on hallucinogenic drugs is rare. “If there is a one-in-10,000 … chance that I would have a euphoric delusional experience on a drug, but a one-in-10 million chance I would have an aggressive psychotic experience on the drug … reasonable Canadians proceed with activities where there is a one-in-10 million chance of harm to others all the time.”
She also pointed out that the Supreme Court itself had ruled in favour of a supervised drug-use site in Vancouver that Ottawa had been trying to shut down.
Her answer turned on a question that was troubling several of the judges, Justice Moldaver included: whether the user of the intoxicants knew, or should have known, of the risks to others in using. And whether the text of the federal law was clear on the issue of foreseeability, or whether the judges would be required in effect to rewrite the law to make it work with the Charter of Rights.
Joan Barrett, a lawyer for the Ontario prosecution, stressed that the law’s purpose is to protect victims, especially women and children, and hold people accountable for their crimes. She said the law sends a clear message of zero tolerance and the potential for criminal liability to anyone who uses hallucinogenic drugs such as crystal meth, or even drinks excessively: “We say that they are turning themselves essentially into a physical instrument that is devoid of rational thought.” And, “at a bar, you know where your intoxication is getting you to.”
She added: “This is an issue that lies at the core of Parliament’s power and duty to make policy choices to address harm in our society.”
Several provinces and the federal government intervened to argue the ban on the defence is constitutionally permissible. Ami Kotler, a lawyer for Manitoba, said it is justifiable to impose limits on Charter rights to preserve confidence in the justice system. “If we lose that, we lose everything.” He added that toxic psychosis from intoxicants is a fairly frequent phenomenon, leading to random stabbings, attacks on children, the burning down of buildings.
Megan Stephens, a lawyer for Women’s Legal Education and Action Fund, stressed that the Charter protects not just accused persons but victims, including the rights of women and children to equality, dignity and security. That understanding, she said, was missing from the 1994 Supreme Court case known as Daviault (in which a man who drank seven or eight beer and a bottle of brandy sexually assaulted a woman in a wheelchair), and largely absent from the Ontario appeal court ruling in the Sullivan and Chan cases.
Matthew Gourlay, a lawyer representing Mr. Chan, told the judges the criminal law does not always have a role to play in terrible events: “Not every tragedy has a villain.”
And Ms. DiGiuseppe said that it would be unjust to convict Mr. Sullivan for attempting suicide: “He did not intend to harm anyone except himself … he took an overdose in his own home.”
The court reserved judgment.
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