Poles Apart – a regressive step?

In a previous blog on 1/2/22 ‘”But she wasn’t resisting”….reversing the presumption of Innocence’, I highlighted the approach taken to consent in New South Wales in rape cases. It is interesting to see a difference of approach, with a stark contrast being adopted in Canada – it being determined in recent Appeals that ‘non-mental disorder automatism’ (otherwise extreme intoxication by drink or drugs) is a legitimate defence against charges relating to violent crimes. However intoxication which is short of automation is not a defence.

On 13 May the Supreme Court of Canada ruled self-induced extreme intoxication can be a defence, which overturns a law passed by Parliament in 1995 (supported by women’s advocacy groups). The court said to prohibit such a defence was unconstitutional and violates the country’s Charter of Rights and Freedoms – resulting in 2 acquittals last week with a retrial ordered in a third case.

Supreme Court, Justice Nicholas Kasirer said: ‘Its impact on the principles of fundamental justice is disproportionate to its overarching public benefits. It should therefore be declared unconstitutional and of no force or effect.’

Until now, the Canadian courts have been split on the issue, while women’s advocacy groups have argued the law is needed to protect women and children. Indeed the issue was considered by the Standing Committee on Justice and Human Rights in 2002 when it was resolved the Criminal Code should not be amended outside of a comprehensive review, and it should be left to the courts to determine to ensure a principled and consistent approach to any such defence. Indeed a consultation paper was previously released in 1993 but the amendment to the White Paper at the time was not pursued. It was said sane automatism has been established in very few cases, and was a rare and unusual event, and given a decision of the Supreme Court in 1999 (R v Stone – the issue to be determined on the balance of probability) there was no pressing need for codification.

Written by Jagdeep Hayre, BLM (Jagdeep.Hayre@blmlaw.com)

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