In criminal law, a key assessment is whether there are any legal defences available for the type of offence charged. For example, the offence of simple assault is made out any time someone violates the physical integrity of another, without their consent. However, one of the legal defences available to a charge of assault is the defence of property. Let’s say someone comes onto your private property; you ask them to leave, they refuse, so you put your hand on that person’s elbow and march them off your property. Although you have violated that person’s physical integrity by touching their elbow without their consent, you only did so to protect your own property, and as the physical contact involved the least use force possible under the circumstances, the defence of property would be available. If a court agrees that the defence of property is made out, you cannot be convicted of the assault.
To be convicted of a criminal offence, it is not enough that the person committed the physical act (called the actus reus), they had to have wanted that outcome as well (called the mens rea). Some defences relate to mens rea, like the defence of automatism. Automatism means “automatic” – acting without control. For example, if someone was sleepwalking while they committed a crime (it’s happened!) they could argue the defence of automatism, and if successful, they would be acquitted.
But what about situations where the “automatic state” was brought about through the use of drugs or alcohol? Until recently, the law stated that the defence of automatism due to drugs or alcohol could not be available to people who ingested the substances themselves and committed physical crimes. Someone who was drugged against their will, had a psychotic break, and committed a physical crime would be able to rely on the defence of automatism, but someone who self-ingested drugs could not use the defence. The thinking was that these people made the decision to get high or drunk and so they should be held accountable for that decision, and whatever flows from that decision.
That type of thinking no longer makes sense in today’s world. It ignores the fact that addiction is a health issue, and that a person struggling with addiction does not have “choice” the same way sober people do. It also ignores the fact that even a tiny amount of an illicit drug can provoke a psychotic break given that everyone reacts differently (due to a number of factors). That is, not everyone who drinks or ingests drugs does so with the explicit intention of getting impaired beyond control. Mr. Chan and Mr. Sullivan certainly did not have that intention. They are the two accused whose criminal cases thankfully prompted the Ontario Court of Appeal to declare that section 33.1 of the Criminal Code no longer applies in Ontario.
Mr. Sullivan had over-consumed prescription medication in an attempt to take his own life. The suicide attempt failed, but the medication left him in a state of extreme psychosis. During this psychotic break, he believed he had captured an alien but ended up stabbing what was actually his own mother.
Mr. Chan had consumed a small amount of “magic mushrooms,” had an extremely bad reaction to the drug, and, in a psychotic state, ended up killing his father and severely injuring his father’s partner.
At first instance trial, both were found guilty, as section 33.1 prevented them from arguing the defence of automatism, given that the automatic state was “self-induced.” Both Mr. Chan and Mr. Sullivan appealed the inability to raise this defence, and the Ontario Court of Appeal heard both cases together and struck down section 33.1 of the Criminal Code.
The relationship between addiction and crime is important and should not be ignored or downplayed. Absent an addiction, drugs or alcohol may still produce unintended, automatic states. If you or someone you know has been charged with an offence where drugs or alcohol were involved, please do not hesitate to contact the team at DeMelo Law.
