(This is a guest post by Kieran Correia)
The Supreme Court of Canada (hereafter ‘SCC’) will soon rule on the constitutionality of the self-induced extreme intoxication defence in Canadian criminal law. The case before the SCC concerns two defendants who committed separate but similar offences. The incidents have been widely reported on, partly because of the extreme violence involved and partly because they question received wisdom on intention, voluntariness, and liability.
Broadly, both cases comprise defendants who committed violence against family members under extreme levels of intoxication. In both instances the intoxication was self-induced. The issue has split the courts in Canada. At the lower level, courts in both cases ruled that since Section 33.1 of the Canadian Criminal Code (hereafter ‘the Code’) prohibits self-induced extreme intoxication as a defence in violent offences, the defendants were guilty. The defendants appealed, and one challenged the constitutional validity of Section 33.1 of the Code.
The Ontario Court of Appeals (hereafter ‘ONCA’), whilst hearing the cases jointly in R v Sullivan (hereafter, ‘Sullivan’), struck down the impugned law, and also overturned the convictions (more on that below). The prosecution has lodged an appeal before the SCC.
The SCC’s judgement is highly anticipated because it will decisively settle the matter. It will also have implications for instances of violence directed toward women, where defendants often claim intoxication as a defence. It is unlikely, Canadian analysts have said, that the SCC will overturn the appellate court’s verdict, which is the focus of this post. The verdict moreover draws an interesting contrast to India’s approach to voluntary intoxication, which is also discussed.
R v Sullivan: Facts and verdict
The ONCA heard both cases jointly. One involves Thomas Chan, a nineteen-year-old student. Chan consumed a high dose of magic mushrooms. Whilst under the influence of the mushrooms, he went to his father’s house, one Dr. Chan, who lived with his partner. Neighbours reported Chan exclaiming ‘This is God’s will’ and ‘I am God’ before breaking and entering. He then stabbed Dr Chan and his partner. The latter survived. His father died.
The other case involves David Sullivan who was on a drug to curb his smoking. Sullivan had attempted suicide by ingesting high doses of the drug. After taking up to eighty tablets, he experienced a ‘profound break with reality’. He believed he caught an Archon—a type of supernatural being—in his house. He brought his mother to witness this. However, she tried to assure him there was nothing in the room. Upon hearing this, and under the continued influence of his tablets, he stabbed her multiple times with two kitchen knives, thinking she was an alien. After her screaming that she was his mother, he ceased stabbing her. She survived the assault but died before trial due to unrelated reasons.
In Chan’s case, the ONCA examined the constitutionality of Section 33.1 of the Code. The trial court had found s 33.1 prima facie violative of the Canadian Charter of Rights and Freedoms (‘the Charter’)—the Canadian bill of rights. Section 33.1 (1) states:
It is not a defence to an offence referred to in subsection (3) that the accused, by reason of self-induced intoxication, lacked the general intent or the voluntariness required to commit the offence, where the accused departed markedly from the standard of care as described in subsection (2).
The ONCA developed a three-pronged argument to explain the issues with Section 33.1. The first is that the section violates the voluntariness principle of fundamental justice (‘lacked . . . the voluntariness required to commit the offence’). It is necessary, according to the Charter, that the ‘conduct that constitutes the criminal offence charged’ be voluntary. Since the section prohibits the defence of (self-induced) involuntariness, it is in express violation of this principle.
The second prong is that the section violates the presumption of innocence guaranteed to all defendants. To prove someone guilty, the prosecution must prove all necessary elements of a crime. However, Section 33.1, the ONCA says, infringes on that principle by substituting voluntary intoxication for the intention to commit a crime. This absolves the prosecution of their duty and violates the defendant’s rights under the Charter.
The third prong is that the section breaches the basic mens rea requirement set out in Canadian law: penal negligence. The section fails on three fronts: first, it does not require a link between the intoxication and the act of violence. Secondly, violent behaviour is not an inevitable foreseeable risk of voluntary intoxication, even if that link was required. Thirdly, the ‘marked departure’ element is also not present, even though the section refers to it. This is because voluntary intoxication per se does not constitute a ‘marked departure from the norm.’
The trial court had refused to accept Chan’s argument in its entirety, claiming that the clause was saved by Section 1 of the Charter, which allows for ‘reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.’ The ONCA, however, rejected this justification. It held that to justify a piece of legislation under the Section 1 leeway, the prosecution must demonstrate two things: first, it must establish that the object of the law is sufficiently important to justify overriding a Charter right. And secondly, that the piece of legislation is proportionate. The latter is to be proved by ensuring the measures chosen are ‘rationally connected’, of ‘minimal impairment’, and of ‘overall proportionality’ (p 43).
If even one element is unfulfilled, the legislation would be struck down. The ONCA found that Section 33.1 did not meet the latter three requirements and hence was violative of the Charter.
Thus, the ONCA held that the ‘non–mental disorder automatism’ defence, whereby a person is so extremely intoxicated that she is unable to form ‘even the minimal intent required of a general intent offence’, is now a valid defence. However, since Chan has not (yet) established such a state of mind, his conviction only stands overturned, and a fresh trial ordered; he is not acquitted.
In Sullivan’s case, since the court already established that s 33.1 would have no force and that he displayed non–mental disorder automatism, and thus mounted a successful defence, he would be acquitted on his assault charges.
Indian and English position on intoxication
Indian law, under Section 85 of the Indian Penal Code (hereafter ‘IPC’), specifically allows for the excusatory defence of involuntary intoxication so long as the person intoxicated is ‘incapable of knowing the nature of the act, or that he is doing what is either wrong, or contrary to law’. However, under Section 86, the IPC limits a voluntary intoxication excuse, which states that:
In cases where an act done is not an offence unless done with a particular knowledge or intent, a person who does the act in a state of intoxication shall be liable to be dealt with as if he had the same knowledge as he would have had if he had not been intoxicated, unless the thing which intoxicated him was administered to him without his knowledge or against his will.
Whilst the wording of the section is ambiguous, the Supreme Court in Basdev v State of Pepsu (1957) clarified it. In specific intent offences—murder, robbery, and other offences which have a more purposive intent—the defendant’s drunkenness will be taken as a mitigating factor in determining if they possessed the intent to commit a crime. However, this will only apply when the drunkenness is sufficient to render them ‘incapable of forming the specific intent essential to constitute the crime’ (para 13). In general intent offences—culpable homicide not amounting to murder, assault, grievous hurt, and so on—the excuse would not apply.
To sum up, Indian law, stated expressly in Mirza Ghani Baig v State of Andhra Pradesh, (AP HC, 1996) maintains that ‘voluntary drunkenness is no excuse for commission of a crime’. Considering the mitigating nature of Section 86, voluntary drunkenness does not prevent courts from imputing knowledge to the accused—and that is after crossing the very high threshold of being so drunk as to be unable to form intent. Thus, for example, a defendant’s murder charge under Section 300 may be lowered to culpable homicide not amounting to murder under Section 299 of the IPC. But it would not exonerate him—even though voluntariness and mens rea are vitiated by his intoxication.
This mirrors English law on the issue, which Professors Andrew Ashworth and Jeremy Horder in their Principles of Criminal Law (9th ed) talk about. The absence of mens rea and volitional actus reus is ‘subordinated to considerations of social defence’, the idea being that some sort of deterrent is necessary, lest a clear path to acquittal be found using intoxication. This further justifies partially excepting specific intent crimes—murder, theft, and so on—because defendants can still be convicted under basic intent offences, such as manslaughter; no social defence is thus lost. Relatedly, and slightly confusingly, since ‘recklessness’ offences (similar to basic intent crimes) only require recklessness, courts find recklessness in the act of being intoxicated, which thus satisfies the ingredient.
Moreover, even an automatism defence—such as in Sullivan—is not applicable to defendants in India, because, as Professors Ashworth and Horder explain, courts impute the case to intoxication (the cause) rather than automatism (the effect). This follows the doctrine of prior fault. R v Quick set this principle down in stone: Automatism that follows voluntary intoxication will not exculpate the defendant. (It is notable that the prosecution in Sullivan raised a similar argument. However, the ONCA, referencing a long line of Canadian judgements which rejected this transference of wrong to the intoxication rather than the criminal conduct being charged, discarded this argument.)
Reading Indian law with Sullivan
Indian law has a nuanced position on voluntary intoxication. However, it has no excuse provision for a defendant who, whilst self-intoxicated, experiences so profound a break from reality that he does not voluntarily commit the offence, even in specific intent offences. At most, the intoxication will lower the charge from a specific intent offence to a basic intent offence—for example, from murder to manslaughter.
Against the backdrop of the discussion in Sullivan, this is problematic on three levels: first, the distinction between specific and basic intent crimes has no bearing on extreme intoxication cases. Secondly, extreme intoxication inhibits the voluntariness required to perform an act. A voluntary act is necessary for almost all severe crimes in India, including murder, grievous hurt, and so on. By allowing for a conviction even when the actus reus was not voluntary, this section contravenes an important principle of natural justice. Thirdly, and relatedly, even when accepted in specific intent crimes, the excuse is only mitigating.
Section 86 bases itself on the principle that voluntary intoxication negatives specific and not general intent, the latter of which is held to be so basic as to endure even whilst voluntarily intoxicated. This does not hold up to scrutiny because the law does not hold the same for involuntary intoxication. Further, in extreme cases of automatism, for instance, even general intent offences would be hard to prove. In such cases, the defendant would be unaware of her immediate circumstances. To claim that she still possessed intent, however basic, is suspect. Alternately, the argument that recklessness offences’ ingredient is satisfied through intoxication annihilates the distinction between ‘legal’ recklessness (where the defendant knew of the consequences and ploughed ahead regardless) and the colloquial usage of the term, something Professors Ashworth and Horder talk about as well.
Secondly, a voluntary act is a core requirement of criminal law. In cases of voluntary intoxication of extreme levels, an individual may lose control over their actions. That is, they suffer from volitional incapacity. However, the section disallows even volitionally incapacitated persons from raising the excuse. This contradicts the voluntariness necessity.
Finally, the excuse is a mitigating factor; even after satisfying the high requirements of the section, it does not serve as an exculpating factor. Even though foundational elements of crime—voluntariness and mens rea—are unfulfilled, or are cast doubt on, the defendant does not stand to be acquitted. He will continue to be liable. The law thus negates the defendant’s rights and grants wide latitude to the prosecution in proving their case.
As for the prior fault doctrine which underpins English law, it is manifestly unfair to generalize correlations between intoxication and criminality. As the Sullivan court states, "proving intoxication does not necessarily or even ordinarily prove the intention to commit assaults" (p 34). A case-to-case approach must be followed. Thus, where it was unexpected and unforeseeable—as with Chan and Sullivan—that the intoxicants would have such violent results, it does not follow for courts to impute ‘prior fault’.
Conclusion
R v Sullivan, most legal analysts agree, is a valuable and measured amendment of the law on the intoxication defence. By rejecting this rigid restriction, and positing a carefully considered replacement, the ONCA took a balanced approach to a hot-button issue with potentially deleterious implications for women and children. It thus restores important legal rights to defendants.
The decision has useful learning for Indian legislators and jurists. The Indian law on voluntary intoxication, encapsulated in Section 86 of the IPC, is heavily biased against the defendant. It flies in the face of important principles of natural justice which safeguard defendants against prosecutorial zealotry. It is urgently in need of amending.
Nevertheless, it is imperative to make sure that reforms do not go too far in favour of defendants, since this defence is often taken up by alleged domestic and sexual abusers. This concern takes on added significance in India, where institutions of law are overtly arrayed against women’s interests. Where truly intoxicated to the point of being unaware of one’s surroundings, it would be unfair to charge defendants with either general or specific intent crimes. However, giving carte blanche to an accused would do more harm than good. Following Sullivan’s constricted approach—applied only after the defendant meets a very high threshold—provides a way out of this quagmire.
No comments:
Post a Comment