TORONTO — A law that bans an accused from using intoxication as a defence in cases of sexual assault and other violent crimes tramples charter rights and is unconstitutional, Ontario’s top court ruled Wednesday. 

In throwing out the provision, the Court of Appeal found its harmful effects were profound, and contrary to the principles of fundamental justice.

“It enables the conviction of individuals for acts they do not will,” the court said.

The ruling comes in a pair of separate cases the court described as “tragic.” In both, men became psychotic on drugs and killed or injured relatives.

In one case, a high school student, Thomas Chan, stabbed and killed his father and badly injured his father’s partner after he and friends had eaten psychedelic mushrooms. Witnesses said he went into a rage, ran into the frigid night yelling about Satan and God’s will, then repeatedly stabbed his father, who pleaded, “Thomas, it’s Daddy. It’s Daddy.”

In the second case, David Sullivan tried to kill himself with an overdose of the prescription stop-smoking drug Wellbutrin, which led to his belief in aliens he called “Archons.” Believing his elderly mother was an alien, he stabbed her in December 2013 as she screamed, “David, I’m your mother.” She survived.

Both men claimed they had no control over what they did — a state called automatism — because of their intoxication.

Usually, someone who successfully mounts an automatism defence will be found not criminally responsible by reason of a mental disorder. However, the defence can also be used in rare cases in which an accused does not claim an underlying mental disease and, if successful, leads to an acquittal.

At trial, the men argued “non-mental disorder automatism” but ran into a roadblock in the form of Section 33.1 of the Criminal Code. The section was enacted in 1995 after a court ruling recognized extreme intoxication could be a defence in sexual assaults, and sparked a public backlash.

The provision specifically outlaws the automatism defence in cases of violence when an accused’s intoxication was self-inflicted.

Chan’s trial judge agreed the law violated the charter but found the infringement justified. The judge convicted him despite finding him to be a “good kid who got super high and did horrific things while experiencing a drug-induced psychosis.”

For his part, Sullivan argued his intoxication resulted from a suicide attempt and was therefore involuntary. The judge convicted him anyway.

In its decision, the Appeal Court found the law violated the charter. Among other things, the higher court said the provision violated a bedrock principle that an accused must voluntarily break the law to be convicted. Deciding to get intoxicated doesn’t meet the threshold, the court said.

“What must be voluntary is the conduct that constitutes the criminal offence charged,” the court said.

Nor could the breaches be justified in a free or democratic society, the court concluded. The legislation failed, the Appeal Court said, because it was unlikely someone could know beforehand that, if they got drunk, they would lapse into a state of automatism and involuntarily commit violence.

“If not entirely illusory, its contribution to deterrence is negligible,” the court said.

The court did recognize that victims of such violence are victims, regardless of whether their attacker meant to hurt them or not.

“However, to convict an attacker of offences for which they do not bear the moral fault required by the charter to avoid this outcome is to replace one injustice for another and at an intolerable cost to the core principles that animate criminal liability,” the Appeal Court said.

Chan was ordered to stand trial again. Sullivan was acquitted.

The Women’s Legal Education and Defence Fund, which intervened in the appeal, did not immediately return a request for comment.

This report by The Canadian Press was first published on June 3, 2020.

Colin Perkel, The Canadian Press

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