Extreme intoxication akin to automatism is a legitimate defence in acts of violence, including sexual assault and murder, Ontario’s top court ruled on Wednesday in declaring unconstitutional a federal law that nullifies the defence.
The 3-0 ruling came in two cases in which men with drug-induced psychosis stabbed family members: a high-school student who, after using magic mushrooms, yelled “I am God,” then stabbed his father to death and seriously wounded his father’s partner; and a man who tried to kill himself by taking at least 30 Wellbutrin pills, and then stabbed his mother, who survived.
The Ontario Court of Appeal decision is rooted in one of the most controversial Supreme Court rulings of the post-1982 era of the Charter of Rights and Freedoms. In 1994, the court allowed the extreme-drunkenness defence for Henri Daviault, a 73-year-old man accused of sexually assaulting a 65-year-old woman in a wheelchair.
After a public uproar, the Liberal government in 1995 passed a law negating that defence for violent acts that occur after voluntary intoxication. In the preamble to the law, Parliament said that intoxication and violence are often connected, and that violence does great harm to disadvantaged people, women and children.
The prosecution argued the law was justifiable in attempting to limit the reach of the 1994 Supreme Court ruling.
But the appeal court said judges owed Parliament no deference, because the law violated a basic norm of Western criminal-justice systems. “The principles of fundamental justice require that voluntariness is an element of every criminal offence,” Justice David Paciocco wrote, citing the Supreme Court’s ruling in the Daviault case.
It is the first ruling by an appeal court on the constitutionality of the 1994 law. It means that the law no longer applies in Ontario, and that the defence of extreme drunkenness akin to automatism is available in that province.
The prosecution argued that the intoxication was voluntary, ensuring that the element of voluntariness existed in the commission of the crime.
But Justice Paciocco said that argument was misplaced. “The purpose of the principle of voluntariness is to ensure that individuals are convicted only of conduct they choose. What must be voluntary is the conduct that constitutes the criminal offence charged.”
On Dec. 27, 2015, Thomas Chan, who was in high school, watched a hockey game at a pub with three friends, then returned to his mother’s home and joined in using magic mushrooms, which had previously been a pleasant, uneventful experience. Failing to become high, he used some more. He then went to his father’s home and said, “I am God.” Although he had a fingerprint entry for the lock, he broke a window and entered, and as his father told him, “Thomas, it’s Daddy, it’s Daddy,” stabbed him to death. He also stabbed and wounded his father’s partner.
“A reasonable person in Mr. Chan’s position could not have foreseen that his self-induced intoxication might lead to assaultive behaviour, let alone a knife attack on his father and his step-mother, people he loved,” Justice Paciocco wrote.
On Dec. 1, 2013, David Sullivan took between 30 and 80 Wellbutrin in a suicide attempt. He then believed he had captured an “Archon” and brought his mother into the room to show her. Then he began stabbing her with two knives. When she called out, “David, I’m your mother,” he dropped the knives and ran into another room. His mother survived, but died of unrelated causes before his trial.
Both men were convicted in their trials, Mr. Sullivan of aggravated assault and Mr. Chan of manslaughter and aggravated assault. Their defences of extreme intoxication were rejected because of the federal law that dismissed those defences; courts in both their cases ruled that the law was a reasonable limit on constitutional rights. The Ontario Court of Appeal disagreed, and ordered a new trial for Mr. Chan, while acquitting Mr. Sullivan.
Jill Presser, a lawyer who represented the Canadian Civil Liberties Association, an intervener in the cases, said the federal law removing the extreme-intoxication defence allowed the convictions of people who were not “morally blameworthy.”
“They had no idea of what they were doing,” she said.
The federal law “undermined the presumption of innocence. It resulted in miscarriages of justice. It deprived them of liberty in ways that were not in accordance with the principles of fundamental justice.”
The Ontario Ministry of the Attorney-General, which handled the prosecution, declined to comment, saying that the case is still within an appeal period.
Our Morning Update and Evening Update newsletters are written by Globe editors, giving you a concise summary of the day’s most important headlines. Sign up today.
Sean Fine