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‘Drunkenness is not now, it never has been, a defence for violence’

Sect. 33.1 unconstitutional, Supreme Court says, allowing defendants to use ‘self-induced intoxication’ as defence, but only in very rare circumstances

ANDREW WATERMAN andrew.waterman@thetelegram.com @Andrewlwaterman

A recent Supreme Court decision is causing concern for community organizations who help victims of abuse and violence.

It’s not the decision itself, but the potential misinterpretation, the possibility it will cause victims of violent crimes to fear coming forward and the possibility of adding extra time to court cases.

“I don’t want people to think that if the perpetrator has used any substances that they can get away with this violent behaviour, that they can get away with sexual assault,” says Lisa Faye, executive director of the St. John’s Status of Women Council. “I really would like to see the communication around this to be really clear that drunkenness is not now — it never has been — a defence for violence including sexual assault. And I want survivors to know if they feel ready to report, they should report, no matter what substances the perpetrator has used.”

R. V. BROWN

The decision in question in the case of R. v. Brown, held that Sect. 33.1 was unconstitutional.

Sect. 33.1 of the Criminal Code states that “it is not a defence … that the accused, by reason of self-induced intoxication, lacked the general intent or the voluntariness required to commit the offence, where the accused departed markedly from the standard of care.”

In a telephone interview, Mark Gruchy, a lawyer with Newfoundland and Labrador Legal Aid Commission’s special defence unit, said what the judges were applying their decision to was not simply alcohol consumption, but a “very strange, rare, unusual, severe and profound form of impairment.”

“I think where people get confused, is there’s a huge difference between an emotionally out-of-control, angry, aggressive drunk, or substance consuming person, and someone who is so far gone on a hallucinogen or interacting drugs, that they have no orientation to reality,” Gruchy said.

It’s analogous in concept to someone being found not criminally responsible for an offence because they were experiencing a schizophrenic episode.

While the defence will be a difficult one to use and will likely only apply in rare circumstances, Faye worries if the law isn’t written in a way that makes it abundantly clear, it could lead to more time in court.

“Which leads to further trauma for survivors of violence,” she said. “I just think about these folks who had to be in these cases, these survivors, just having to sit through this kind of a court case and have to be retraumatized.”

‘STRIKING DOWN THE LAW AS IT STOOD’

The whole decision revolves around the fundamental principle of intent.

“When we are saying that a person has been responsible for … a criminal offence, we are saying they have committed an immoral act. To commit a truly immoral act at the level necessary to be a crime, the person has to have the requisite level of mental competency to be able to make a moral choice,” Gruchy said. “If intent didn’t matter, we could send young children to jail for committing crimes.”

Sect. 33.1 has been struck down by many courts over the years.

“All that we’ve seen is confirmation of something as opposed to something totally new,” Gruchy said.

Of particular note as well, was that the courts said they were “striking down the law as it stood.”

“They said it was possible to regulate this area of activity with more precise language, essentially,” Gruchy said. “So, in other words, it seems like if you made it a crime, for instance, to voluntarily consume a substance that could produce the state of affairs, that might be sufficient.

“And finally, it isn’t really talking about the vast, vast, vast, vast majority of substance-driven violence that occurs, which does not involve what amounts to a severe psychotic break.”

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2022-05-28T07:00:00.0000000Z

2022-05-28T07:00:00.0000000Z

https://saltwire.pressreader.com/article/281560884418881

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