Drunkeness Defense in Sexual Assault Cases

I'm.... speechless.

So could someone drink a skinful, get in a car, get pulled over and then claim there weren't guilty of DUI because they were too drunk to be criminally responsible? I'd *love* to be a fly on the wall if that went to court, just to see the lawyers' heads explode :)

... So could someone drink a skinful, get in a car, get pulled over and then claim there weren't guilty of DUI because they were too drunk to be criminally responsible? I'd *love* to be a fly on the wall if that went to court, just to see the lawyers' heads explode :)

ha ha ... joking aside, as near as I can figure out, it's true that in general, anyone is perfectly free to try this argument, including in a case of simple drunk driving. (I am not a lawyer, though, so, as usual, I stand to be corrected).

Perhaps not the wisest choice of "defenses", though. Since drunk driving is illegal in and of itself, someone making the claim that they were too drunk to be responsible might find that they would not so much be submitting a defense ... as they would be making a flat-out confession of guilt. But the constitutional point is that the accused is free to try this argument, or most any other argument - no matter how crazy, or how unlikely it may be to actually sway the court.

The exception, however, is any case:

In such cases, the accused is not free to try the drunkenness argument - according to the post-1995 Criminal Code, that is. It is this exception that is the point of the multiple findings of unconstitutionality as mentioned in the news article cited in my OP.

I can't condone the offence, but have to agree defensive strategy used has many possibilities.

It's a complicated issue. Blaming your actions on drunkenness sounds like a bad thing without context, but based on the case it could be completely true and valid.

If a man and a woman are both drunk and have what they both believe to be consensual sex and then the woman wakes up, freaks out, and charges the guy with sexual assault, the law does little to protect the man. Women are assumed to not be able to give consent when intoxicated. My question is, why are men able to give consent when intoxicated? Or is consent not necessary for men to have sex?

Being drunk is not an excuse. It's an escape.

I don't think that any judge ever intended to absolve drunken people of their criminal actions; the only real question is whether it's considered an acceptable defense for violent crimes, and whether one's constitutionally-protected right to legal defense should include the right to argue for an acquittal on the grounds of non-insane automatism, when charged with a violent crime.

To be convicted of a crime in Canada, the prosecution must prove both actus rea (evil act) and mens rea (evil intent). In cases of automatism, the defense claims that there could be no mens rea, since the accused was unaware of their actions, and therefore, a conviction would be inappropriate.

The automatism defense has been used successfully, most notably in R. v. Parks (1992), where the defendent claimed to have been sleepwalking when he got up in the middle of the night, got dressed, drove to his parents' house, and stabbed his stepmother and father, killing her and putting him in the hospital with serious injuries. He was acquitted by the jury, who accepted evidence from his psychiatrist that he was unaware of his actions when he attacked his parents. Therefore, he lacked the mens rea required for a conviction, and the acquittal was upheld on appeal.

The case of R. v. Daviault, as mentioned above, permitted the accused's lawyer to argue for an automatism defense, and a new trial was ordered (I'm having trouble finding out if he was tried again, or if the Crown elected not to re-try the case). Parliament responded with Bill C-72 in 1995, which included the text that is now cited in S 33.1(3) of the Criminal Code of Canada.

Subsequently, the case of R. v. Stone (1999) differentiated automatism into two types - insane automatism (where a pre-existing mental disorder leads to automatism) and non-insane automatism (where it is induced by an external source, such as a blow to the head, hypoglycemia, or in cases like these, voluntary intoxication). The difference is important; a successful defense on the grounds of insane automatism, leads to a verdict of NCRMD (Not Criminally Responsible on account of Mental Disorder), in which case the defendant is referred to a psychiatric review board for evaluation and treatment. In cases of non-insane automatism, the verdict is not guilty, meaning the defendant is free to go.

So, the issue is not whether drunks should not be held responsible for violent crimes. The only real question is whether the presiding justice (and in applicable cases, the jury) can legally consider the possibility of non-insane automatism due to excessive alcohol consumption. As the law stands now, they're not supposed to even consider it for cases involving violence, even though it's an accepted defense for non-violent crimes. The judge/jury certainly doesn't have to accept these arguments when making their ruling, but the defendant should have the constitutional right to use this as a defense if they so choose.

As the writer mentions, even when the justice accepts that the preclusion is unconstitutional, they still tend to reject the argument, and most people who challenge it on constitutional grounds - even successfully - still get convicted of their crimes. They can try to claim a lack of mens rea, in hopes that the judge agrees - but in the vast majority of cases, they're still held responsible for their actions.

Isn't there an important distinction to be made between different forms of non-insane automatism though?

A blow to the head and hypoglycemia (accidents or medical concerns) vary tremendously from, as you noted, *voluntary* excessive alcohol consumption. It seems to me that also responsibility lies in the choice to drink or not drink. You decided to drink, and therefore tacitly accepted responsibility for your own behaviour that resulted from that choice.

Just a thought, and I wonder if that's reflected in any cases.