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Baranyai: Under the defense of intoxication, society still needs protection

The “temporary insanity” defense is nothing if not sensational.

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The defense of “temporary insanity” is nothing if not sensational. Innovative applications range from the 1859 acquittal of Daniel Sickles – a US congressman who staked his wife’s lover in Lafayette Square, shot him three times, then surrendered – to the even more notorious trial of Lorena Bobbitt, a battered wife who mutilated her husband with a kitchen knife.

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Bobbitt was acquitted in 1994, the same year the Supreme Court of Canada opened the door to the defense of “extreme intoxication,” a variant of temporary “insanity.” The court determined that a person can be so drunk or stoned that they are in a state bordering on automatism or psychosis and cannot be held criminally responsible, even when they voluntarily put themselves in this state.

The case involved Henri Daviault, a chronic alcoholic convicted of sexually assaulting a 65-year-old woman in a wheelchair. He consumed seven or eight beers before delivering a 40-ounce bottle of brandy to his wife’s friend, then drank most of the bottle himself, assaulted the woman, and passed out. The court ordered a new trial, giving Daviault the opportunity to argue that he was too impaired to act with intent.

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The groups of victims recoiled in horror. People generally balked at the idea that a man could be so drunk, that his actions were involuntary – but not too drunk to maintain an erection – and that such harmful behavior could have no criminal repercussions.

In less than a year, Parliament has closed the door on invoking the violent crimes defence. The Supreme Court recently ruled that the restriction, contained in s. 33.1 of the Criminal Code, unconstitutional.

In doing so, the court expressed doubts that alcohol alone could produce such a state. The judges were considering three cases of drug-induced psychosis. They pointed out that legal recourse applies in the rarest of circumstances.

A few years ago, two law professors, Elizabeth Sheehy and Isabel Grant, examined how often the extreme intoxication defense was actually invoked in the nine months between Daviault and legislation restricting its use. Their search for case law and media reports identified 23 cases. The defense succeeded in seven; five of them concerned only alcohol. Five of the seven successful defenses involved violence against women.

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The findings cast doubt on the notion that such a defence, once available, would be exceedingly rare. They further noted the repercussions of crimes such as assault, sexual assault and stalking, which have no alternative charges when intent cannot be established, how murder can be reduced to manslaughter. “Without art. 33.1, the defense of extreme intoxication results in a complete acquittal, so that no restraint or treatment can be ordered for someone who has caused serious harm to another person. »

The diversion system offers significantly better options when an episode of psychosis is the result of serious mental illness. Depending on the circumstances, a person charged with a minor offense may avoid charges if they voluntarily complete certain conditions, such as a treatment program. If they don’t complete their treatment, they go back to the justice system.

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This approach makes much more sense than punishing harmful behavior that is beyond a person’s control and is committed without intent. And that certainly makes more sense than sending them home unmolested and unsupported.

The court protects the fundamental principle that involuntary behavior cannot be criminalized. He noted art. 33.1 could meet this constitutional test if it specified that a loss of control was reasonably foreseeable when the abuser was engaging in substance abuse.

If alcoholism and drug addiction are diseases, can we really say that excessive substance use is voluntary? Better to find options that both protect society and support the recovery.

write.robin@baranyai.ca

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