The Defence of Self-Induced Automatism: A ‘Get Out Of Jail Free Card’?
Three cases, one question: should the defence of sane-automatism be available to defendants being accused of serious crimes such as assault and rape? On the 12th of May 2022, the Supreme Court of Canada unanimously issued a chilling decision allowing such a defence- resulting in one re-trial and two acquittals. In R v Brown, a case concerning a man that voluntarily ingested magic mushrooms containing the illegal drug psilocybin, resulting in him “losing his grip on reality”, breaking into a nearby home, and violently attacking a woman inside - has overruled the Canadian Criminal Code s33.1, established in 1995, which denies the defence of seld induced automatism. The case has received a lot of attention in the media as well as within the legal academic sphere: both debating whether society has accepted such behaviour as morally justifiable and not worthy of retribution?
Surprisingly, the nine justices presiding over the cases seemed to have reached a consensus suggesting that this behaviour is indeed permissible. Writing for the Supreme Court, Justice Nicholas Kasirer declares that when an individual is in “a state of impaired consciousness”, their actions would be blameless because the law has taken someone's intention to become intoxicated as an intent to commit a serious crime, and because a person may be convicted without having to prove that the offence was voluntary and that the defendant had the mens rea to commit the offence. Suggesting that the case violates the ideas of personal responsibility- which is a principle of fundamental justice.
Lawrie McFarlane, however, fails to see eye to eye with Justice Nicholas and instead argues that the case simply fails the test of “common sense”. She suggests that if a man can summon the “self-mastery to break into a woman's bedroom”, can we really say that he does not know what he was doing? She provides an insightful argument suggesting that justice's way of measuring the public benefit of not imprisoning an inebriated attacker/murderer is warped. Such a view does indeed seem to be attractive as she uses terms such as “intent” “deliberate” and “choice”, which places a certain degree of blameworthiness on the defendant that has voluntarily consumed a substance to make them reach the state of automatism.
The case has also received a lot of attention from women activist groups- suggesting that this would not deter, but instead, encourage people to reach a state of automatism and commit acts of sexual violence. However, blame is more accurately placed on the media’s interpretation of the case that has caused misunderstanding. The use of words like “self-induced extreme intoxication” has resulted in an understanding that does not accurately represent the law as it stands. Justice Nicohlas was explicit in stating that the threshold to satisfy “sane autonomism”- is not enough to be highly/extremely intoxicated, but where you are in a state where you might be capable of action, but have no voluntary control over them. As a result, it is suggested that while the arguments presented by women activist groups are not unfounded, it is not the judgement, but rather the misconstrued way in which the media has interpreted the law that has resulted in some people finding the law troublesome.
Some news outlets went far enough to suggest that people who commit the most hideous crimes such as murder or rape - will not be found guilty of anything. Such claims are simply deceptive. This is because lawyers and academics alike have a far greater understanding of the extraordinarily high threshold that needs to be achieved for the defence to be available. As a result, the blame can be more accurately placed on the media, who have incorrectly portrayed the defence to be so easily available that the law, instead of condemning, facilitates the worst crimes against the person.
Whether the Canadian parliament will interfere with the decision, is yet to be seen. However, what is clear today is that the defence of sane-automatism is not a defence that is readily available for people that commit crimes in an intoxicated state. It is only available where a defendant might satisfy the narrow test of proving that they were in that state of impaired consciousness. As a result, while women activist groups are right to be concerned- it is only the availability of the defence in practice that will shed light on whether the new defence of ‘sane-automatism’ is really a get out of jail free card.