Is self-induced intoxication a defence to a crime?

It depends. Section 33.1 of the Criminal Code bars the use of self-induced extreme intoxication as a defence to crimes. However, the key phrase here is extreme. Extreme intoxication is a state where the conscious mind and the part of the mind that control your actions are dissociated. Reaching this state of extreme intoxication is very likely one that involves not just alcohol but other mind-altering drugs as well.

In 2022, the Supreme Court of Canada published two decisions: R v Brown, and R v Sullivan, where it struck down the old version of section 33.1 as invalid. This old version of section 33.1 banned the defence of extreme intoxication for certain offences (those with an element of assault, bodily harm, or the threat of bodily harm) Responding quickly to this, Parliament amended section 33.1 using the Supreme Court’s suggestions to now bar the extreme intoxication defence under the following circumstances:

  • Besides the mental element of the offence (mens rea, the “guilty mind”), all the other elements of the offence have been met, and
  • When consuming the substance that intoxicated, the accused did it in such a way that they were criminally negligent.
    • This was the key change that Parliament enacted in response to the recent Supreme Court decisions. Now, when determining if a defence of extreme intoxication can be used, courts must look at the behaviour of the accused before he or she was extremely intoxicated and ask whether they consumed the drug in a way that markedly departed from the standard of care of a reasonable person. When doing this analysis, the court will also factor in any action by the accused to mitigate risks that could occur when consuming the drug.

What is automatism?

Automatism is the mental state when a person’s conscious mind is dissociated from the part of their mind that controls their actions. There are two kinds of automatism: mental disorder automatism, and non-mental disorder automatism. For crimes that were committed in a state of mental disorder automatism, courts almost always grant a verdict of not criminally responsible (NCR). On the other hand, cases of non-mental disorder automatism result in acquittals. The difference between a verdict of NCR and an acquittal is that an acquittal is a solid judgement of “not guilty” while an NCR verdict is neither “not guilty” nor “guilty”. Further, an NCR verdict can also mean spending extended time in a psychiatric hospital, with very limited freedoms and time outside the institution. An example of automatism resulting not from mental disorders is when a diabetes patient takes too much insulin, becomes hypoglycaemic, and as a result, his brain malfunctions due to imbalanced chemistry. Another example of non-mental disorder automatism is when someone’s actions are affected immediately after a blow to the head. When determining if there is a case of non-mental disorder automatism, courts will consider:

  • Whether this was a single incident.
  • Whether the automatism was triggered by an external event.
    • For example, brain malfunctions due to taking insulin would be an external trigger, while brain malfunctions due to a diabetes patient’s natural hyperglycaemia would be an internal event and not allow for a non-mental illness automatism defence.
  • Whether the trigger is unlikely to reoccur.
  • Whether the event could have dissociated the conscious mind and the mind controlling the actions in a normal person.

Parliament, in section 33.1 of the Criminal Code, treats extreme intoxication as akin to automatism. However, in section 33.1, states of extreme intoxication do not automatically result in acquittals as in the case of taking too much insulin or being hit in the head since section 33.1 requires that we look into the behaviour of the accused while consuming the intoxicating substance. In that sense, extreme intoxication does not necessarily result in avoiding all criminal responsibility.

Proving automatism is challenging. The Supreme Court noted in Brown, that “Claims of extreme intoxication must, of course, be assessed with reference to the facts and expert evidence adduced at the trial”. This sort of expert evidence requires finding scientists and physicians who know about the effects of various drugs and understand the physiology and underlying conditions, of the accused.

Can I get away with a crime if I was drunk?

Probably not. Every crime has two key elements: the actus reus (the bad act) and the mens rea (guilty mind). Different levels of intoxication can impact the mens rea of an offence. Canadian law recognizes three levels of intoxication: mild intoxication, advanced intoxication, and extreme intoxication.

  • Mild intoxication is when an individual’s inhibitions and socially acceptable behaviours are relaxed. Mild intoxication is never a defence for a crime in Canadian law.
  • Advanced intoxication is when a person is intoxicated in such a way that they lack the foresight into the consequences of their actions. Advanced intoxication can only be used as a defence for offences with specific intent.
    • A specific intent offence is one where there is an ulterior purpose, that is, the crime was intentionally committed to reach a specific outcome. Examples of specific intent offences are murder, where there is the ulterior purpose of bringing about the death of another person.
    • On the other hand, general intent offences do not have an ulterior purpose beyond the criminal act itself. These offences do not give way to an advanced intoxication defence.
  • Extreme intoxication is intoxication that is akin to automatism. The validity of an extreme intoxication defence is governed by section 33.1 of the Criminal Code.

Keeping this in mind, involuntary intoxication may be a defence to some crimes. Accidentally (involuntarily) drinking a spiked drink and being mildly intoxicated does not negate the mens rea of a crime. On the other hand, unknowingly having a drink spiked with scopolamine could trigger a section 33.1 defence (of course, also factoring in other circumstances and your behaviour while drinking). In that sense, involuntary intoxication could be a defence in specific circumstances where intoxication defences are allowed (in cases of advanced and extreme intoxication).

Can extreme intoxication be used as a defence to DUI?

Probably not. While any offence can use the defence of extreme intoxication, intoxication itself is an element of DUI offences. Since the proposed defence is an element of the offence itself, it is very likely that an extreme intoxication defence would not stand.

Lakin Afolabi LPC blog material is screened for authenticity as of the date of posting and accurately reflects the law to the best of our knowledge. Because the nature of the legal landscape is ever-changing we do not guarantee the future accuracy or completeness of this blog material past the date of posting. This material is not a replacement for advice received from our team of legal professionals. Any action you take upon the information on this website is strictly at your own risk.