Self-induced intoxication and criminal responsibility

R. v. Bouchard-Lebrun, 2011 SCC 58 was released today.  A summary and quotation follows.

B brutally assaulted two individuals while he was in a psychotic condition caused by drugs he had taken a few hours earlier.  As a result of these incidents, B was charged with aggravated assault.  The trial judge convicted B on the basis that all the elements of s. 33.1 Cr. C., which provides that self-induced intoxication cannot be a defence to an offence against the bodily integrity of another person, had been proven beyond a reasonable doubt.  B then tried unsuccessfully on appeal to obtain a verdict of not criminally responsible on account of mental disorder under s. 16 Cr. C. 

The Court held that a court must consider the specific principles that govern the insanity defence in order to determine whether s. 16 Cr. C. is applicable.  If that defence does not apply, the court can then consider whether the defence of self-induced intoxication under s. 33.1 Cr. C. is applicable if it is appropriate to do so on the facts of the case.  Intoxication and insanity are two distinct legal concepts.

An accused who wishes to successfully raise the insanity defence must meet the requirements of a two-stage statutory test.  The first stage involves characterizing the mental state of the accused.  The key issue to be decided at trial at this stage is whether the accused was suffering from a mental disorder in the legal sense at the time of the alleged events.  The second stage of the defence provided for in s. 16 Cr. C. concerns the effects of the mental disorder.  At this stage, it must be determined whether, owing to his or her mental condition, the accused was incapable of knowing that the act or omission was wrong.  In the instant case, it is not in dispute that B was incapable of distinguishing right from wrong at the material time.  Therefore, the only issue in this appeal is whether the psychosis resulted from a "mental disorder" within the meaning of s. 16 Cr. C.

Toxic psychosis does not always result from a "mental disorder".  In Stone, Bastarache J. proposed an approach for distinguishing toxic psychoses that result from mental disorders from those that do not.  This approach is structured around two analytical tools, namely the internal cause factor and the continuing danger factor, and certain policy considerations.

The internal cause factor, the first of the analytical tools, involves comparing the accused with a normal person.  The comparison between the accused and a normal person will be objective and may be based on the psychiatric evidence.  The more the psychiatric evidence suggests that a normal person, that is, a person suffering from no disease of the mind, is susceptible to such a state, the more justified the courts will be in finding that the trigger is external.  Such a finding would exclude the condition of the accused from the scope of s. 16 Cr. C.  The reverse also holds true.

In this case, the application of the first factor suggests that the drug-taking is an external cause.  It seems likely that the reaction of a normal person to taking drugs would indeed be to develop toxic psychosis.  This strongly suggests that B was not suffering from a mental disorder at the time he committed the impugned acts.  And the rapid appearance of psychotic symptoms generally indicates that B's delusions can be attributed to an external factor.  In addition, the psychotic symptoms B experienced began to diminish shortly after he took the drugs and continued to do so until disappearing completely.  The Court of Appeal held that the disappearance of the symptoms showed that the symptoms of toxic psychosis coincided with the duration of B's intoxication.  It could thus say that B suffered from no disease of the mind before committing the crimes and once the effects of his drug-taking had passed.  There is no valid reason to depart from this conclusion.

The second analytical tool, the continuing danger factor, is directly related to the need to ensure public safety.  In this case, there is no evidence indicating that B's mental condition is inherently dangerous in any way.  Provided that B abstains from such drugs in the future, which he is capable of doing voluntarily, it would seem that his mental condition poses no threat to public safety.

In this context, B was not suffering from a "mental disorder" for the purposes of s. 16 Cr. C. at the time he committed the assault.  A malfunctioning of the mind that results exclusively from self-induced intoxication cannot be considered a disease of the mind in the legal sense, since it is not a product of the individual's inherent psychological makeup.  This is true even though medical science may tend to consider such conditions to be diseases of the mind.

The foregoing conclusion leads to the question whether s. 33.1 Cr. C. is applicable.  This provision applies where three conditions are met:  (1) the accused was intoxicated at the material time; (2) the intoxication was self-induced; and (3) the accused departed from the standard of reasonable care generally recognized in Canadian society by interfering or threatening to interfere with the bodily integrity of another person.  Where these three things are proved, it is not a defence that the accused lacked the general intent or the voluntariness required to commit the offence.  Section 33.1 Cr. C. therefore applies to any mental condition that is a direct extension of a state of intoxication.  There is no threshold of intoxication beyond which s. 33.1 Cr. C. does not apply to an accused, which means that toxic psychosis can be one of the states of intoxication covered by this provision.  It is so covered in the case at bar.  The Court of Appeal therefore did not err in law in holding that s. 33.1 Cr. C. was applicable rather than s. 16 Cr. C.

Some of the Court's language is useful:

[45]                          According to a traditional fundamental principle of the common law, criminal responsibility can result only from the commission of a voluntary act.  This important principle is based on a recognition that it would be unfair in a democratic society to impose the consequences and stigma of criminal responsibility on an accused who did not voluntarily commit an act that constitutes a criminal offence.

[46]                          For an act to be considered voluntary in the criminal law, it must be the product of the accused person's free will.  As Taschereau J. stated in R. v. King, [1962] S.C.R. 746, "there can be no actus reus unless it is the result of a willing mind at liberty to make a definite choice or decision, or in other words, there must be a willpower to do an act whether the accused knew or not that it was prohibited by law" (p. 749).  This means that no one can be found criminally responsible for an involuntary act (see Dickson J.'s dissenting reasons in Rabey v. The Queen, [1980] 2 S.C.R. 513, which were endorsed on this point in R. v. Parks, [1992] 2 S.C.R. 871).

[47]                          An individual's will is expressed through conscious control exerted by the individual over his or her body (Perka v. The Queen, [1984] 2 S.C.R. 232, at p. 249).  The control may be physical, in which case voluntariness relates to the muscle movements of a person exerting physical control over his or her body.  The exercise of a person's will may also involve moral control over actions the person wants to take, in which case a voluntary act is a carefully thought out act that is performed freely by an individual with at least a minimum level of intelligence (see H. Parent,Responsabilité pénale et troubles mentaux:  Histoire de la folie en droit pénal français, anglais et canadien (1999), at pp. 266‑71).  Will is also a product of reason.

[48]                          The moral dimension of the voluntary act, which this Court recognized in Perka, thus reflects the idea that the criminal law views individuals as autonomous and rational beings.  Indeed, this idea can be seen as the cornerstone of the principles governing the attribution of criminal responsibility (L. Alexander, K. K. Ferzan and S. J. Morse, Crime and Culpability:  A Theory of Criminal Law (2009), at p. 155).  When considered from this perspective, human behaviour will trigger criminal responsibility only if it results from a "true choice" or from the person's "free will".  This principle signals the importance of autonomy and reason in the system of criminal responsibility.  As the Court noted in R. v. Ruzic, 2001 SCC 24, [2001] 1 S.C.R. 687:

                    The treatment of criminal offenders as rational, autonomous and choosing agents is a fundamental organizing principle of our criminal law.  Its importance is reflected not only in the requirement that an act must be voluntary, but also in the condition that a wrongful act must be intentional to ground a conviction. . . . Like voluntariness, the requirement of a guilty mind is rooted in respect for individual autonomy and free will and acknowledges the importance of those values to a free and democratic society.  Criminal liability also depends on the capacity to choose — the ability to reason right from wrong.  [Emphasis added; citation omitted; para. 45.]

[49]                          This essential basis for attributing criminal responsibility thus gives rise to a presumption that each individual can distinguish right from wrong.  The criminal law relies on a presumption that every person is an autonomous and rational being whose acts and omissions can attract liability.  This presumption is not absolute, however:  it can be rebutted by proving that the accused did not at the material time have the level of autonomy or rationality required to attract criminal liability.  Thus, criminal responsibility will not be imposed if the accused gives an excuse for his or her act that is accepted in our society, in which there is "a fundamental conviction that criminal responsibility is appropriate only where the actor is a discerning moral agent, capable of making choices between right and wrong" (R. v. Chaulk, [1990] 3 S.C.R. 1303, at p. 1397).  In Ruzic, the Court recognized the existence of a principle of fundamental justice that "only voluntary conduct — behaviour that is the product of a free will and controlled body, unhindered by external constraints — should attract the penalty and stigma of criminal liability" (para. 47).