• Lewis Waring

Self-induced intoxication and automatism - blawger

In R v Stone (“Stone”), automatism is defined as “a state of impaired consciousness, rather than unconsciousness, in which an individual though capable of action, has no voluntary control over that action”. The defence of automatism can be used to negate a crime as long as the accused can prove having been in a state of automatism. Automatism is then broken down into two types: mental disorder, and non-mental disorder.


Automatism for self-induced intoxication originally rejected


The case of R v Chan (“Chan”) deals with the issue of drug-induced psychosis that led Chan to attack and kill a loved one. In Chan, the accused had consumed “magic mushrooms”; a drug containing psilocybin, which intoxicated him. Chan had used magic mushrooms in the past and had never experienced any harmful effects. On this particular evening, Chan’s engagement with magic mushrooms led him to feelings of paranoia and what he later claimed to be a state of automatism. Chan went over to his father’s house and stabbed him, which led to his father’s death. Chan subsequently stabbed his father’s partner, causing her to sustain serious injuries.


Section 33.1 of the Criminal Code (“the Code”) has the power to remove non-mental disorder as a defence in cases where the accused has induced themselves into a state of automatism by voluntary intoxication. Chan argued that section 33.1 of the Code was unconstitutional, which the judge held prima facie to be true. However, the unconstitutionality of section 33.1 of the Code was denied on the grounds that it could be justifiably limited under section 1 of the Canadian Charter of Rights and Freedoms (“the Charter”). This meant that Chan could not use the defence of non-mental disorder automatism. Chan subsequently tried to argue the mental disorder defence,but this was rejected by the judge as well.


A failure to consider automatism at trial


There were five main issues on appeal in Chan, namely:

  1. Did the trial judge err in not accepting the unconstitutionality of section 33. 1 of the Code based on precedent?

  2. Was the trial judge’s decision in finding section 33.1 to be prima facie a violation of the Charter correct?

  3. If it is found that section 33.1 is prima facie violation of the Charter, can it be justified under section 1 of the Charter?

  4. If section 33.1 cannot be saved under section 1, should Chan be acquitted?

  5. Should the trial judge have accepted Chan’s mental disorder defence?

The Court of Appeal for Ontario (“the ONCA”) analyzed these five issues, respectively, as follows:

  1. On appeal, the ONCA concluded that the trial judge was not bound by precedent (specifically in Dunn) and was correct in their judgement. Chan’s argument attempted to hold principles contrary to the principles of stare decisis to come into play, however this was quickly struck down.

  2. The ONCA also found the trial judge to be correct in their finding that section 33.1 was prima facie in violation of the Charter. The ONCA used the Deviault decision and the wording of section 33.1 of the Code to justify his reasoning. The ONCA in Chan stated that section 33.1 of the Code infringed sections 7 and 11(d) of the Charter because it allowed for conviction without proof of voluntariness. The ONCA followed this by stating that the Code thereby infringed on the presumption of innocence because one could be convicted without proof of the elements of the offence. Lastly, the judge pointed out that selection 33.1 of the Code infringed on section 7 of the Charter by “permitting convictions where the minimum level of constitutional fault is not met”.

  3. On appeal, the ONCA decided that the trial judge erred in his conclusions. One of the reasons for this was in the trial judge’s statement of the objective of section 33.1 was too broad. This is significant to the analysis because, based on the purposes he ascribed to section 33.1, his section 1 analysis was corrupted. The ONCA also could not justify the infringement under section 1 based on his application of R v Oakes. Overall, the ONCA in Chan concluded that section 33.1 is not a justifiable limit on rights given under the Charter and is of no force or effect pursuant to section 51(2) of the Constitution Act.

  4. The judge decided that, because Chan did not have the chance to use the non-mental disorder automatism defence, he should be granted a new trial. Chan requested an acquittal, but the judge did not agree. There was no evidence that the trial judge found that could prove that Chan had not acted voluntarily. In fact, the trial judge found that, despite the psychosis that resulted from his intoxication, Chan was capable of differentiating between right and wrong. Based on this finding, the judge decided that this was not a case of non-mental disorder automatism. Chan continued to use Daviault to argue that non-mental disorder automatism describes his situation because his mental state was similar to insanity or mental disorder despite having been caused by his extreme intoxication. Once again, the judge on appeal did not accept this argument because he found the situation in Daviault unanalogous to that faced by Chan.

  5. Overall, the ONCA decided that, since the trial judge did not consider the fact that Chan may have reached a stage of automatism, a new trial should be ordered.

A rare but complex defence


The idea of the defence of automatism is a controversial one, especially when it comes to non-mental disorder automatism in particular. There were two cases that came about around the same time, one of them being Chan; the other being R v Sullivan (“Sullivan”), a case in which a man tried to overdose on prescription medication to commit suicide and committed a crime and consequently attempted to use automatism as a defense. The controversial issue that came up in both Chan and Sullivan was the idea of relying on the defense of automatism when one becomes intoxicated. Until these cases, the idea that you could rely on the defense of automatism if the intoxication was self-induced was largely unchallenged. It is rare that an intoxication defense would be permitted. However, the mere possibility of the defence of automatism being available could have negative effects, for example, weakening the protection of women from sexual violence.


On the other hand, the use of the defense of automatism is not widely employed and therefore the idea of flooding the courts with cases such as Chan is not a huge concern. I think the already complicated idea of automatism is even more convoluted than it appears to be at face value. Chan deals with self-induced intoxication. I do not think that self-induced intoxication to the point of automatism should be enough on its own to merit an acquittal.


However, where it gets more complicated is when we think of issues like addiction and brain injury. Addiction is becoming more widely accepted as a mental disorder, but would addiction be accepted by the courts as a way to negate the claim that an accused’s intoxication was self-induced? Another issue is brain injury. Although the brain is constantly being studied, there is still much we do not know about how it works. If someone suffers from a blow to the head, epilepsy, or even sleepwalking, it can become quite unclear whether automatism can be applied. Thus, the idea of automatism is far more complicated than it appears to be in its application in Chan. I think that although cases like Chan may draw most of society to conclude that a person should not be able to use the defense of automatism, it is nonetheless important that Chan was addressed by the Court so that the legal world could be opened up to more discussion on this complex defence.

Check out the Robson Crim MLJ
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