A summary of public consultation on reform of the Criminal Code of Canada as related to a defense of self-induced intoxication resulting in automatism

Abstract

The changes to Canadian law around the Daviault case took place within a broader process of ongoing reform of the Criminal Code of Canada. Because of the concurrence of these two events, there exist several documents printed by the federal government that describe in plain language the implications of the Daviault decision and discuss the relative merits of different legislative options relating to this issue. This paper attempts to summarize the nature of this discussion. Information is provided at the end to help the interested reader acquire these documents. Criminal Code reform and the provisions of the The Criminal Code of Canada, first enacted in 1892, consists of three parts: the General Part, Criminal Offenses, and Procedures. The General Part of the Criminal Code provides the basic definitions and principles that are applied to the rest of the text of the Code and to other federal statutes. The necessary elements of criminal liability are outlined here, as are the purpose and the application of all defenses that can be raised by the accused. Many parts of the Criminal Code have been revised continuously since 1892 to reflect legislative changes and changes in interpretation that have arisen through case law, but the entire text had never been reviewed and brought up to date. Several studies of the General Part of the Criminal Code have concluded that it no longer reflects the values and concerns of contemporary Canadian society and that reform is overdue (Law Reform Commission of Canada, 1987; Canadian Bar Association, 1992; Thacker, 1993). Very importantly, the influence of the Canadian Charter of Rights and Freedoms, enacted in 1982, is not yet reflected in the General Part of the Criminal Code. In 1993 the federal government took an important step in this process. Following a report of the Parliamentary subcommittee on recodification of the General Part of the Criminal Code, on June 28, 1993, the Minister of Justice released a White Paper (a proposed Act of Parliament released for committee and general discussion) that outlined a proposed new General Part of the Criminal Code. The provisions in the were defined for the most part by case law and interpretation of the Charter. In defining what constitutes the elements of an offense, section 12.1, paragraph 2 of the reads No person commits an offence unless that person commits the act, or makes the omission, voluntarily. Section 35 defines the nature and availability of the defense of self-induced intoxication: 35. (1) Self-induced intoxication does not form the basis of a defence to, or negate criminal responsibility for, an offence, unless (a) the description of the offences specifies, or the law otherwise provides, that there be a motive, purpose or intention in addition to the basic intention to commit the act or omission specified in the description of the offence; and (b) either (i) the self-induced intoxication negates a motive, purpose or intention, other than the basic intention, referred to in paragraph (a), whether or not it also negates that basic intention, or (ii) the self-induced intoxication results in a mistaken belief as to a circumstance, whether or not the circumstance is specified in the description of the offence, which mistaken belief would form the basis of a defence to, or negate criminal responsibility for, the offence. (2) Notwithstanding anything in this section, self-induced intoxication does not form the basis of a defence to, or negate criminal responsibility for, an offence, where (a) this Act or any other Act of Parliament so provides; (b) intoxication is an element of the offence; or (c) the person became intoxicated in order to be fortified to commit the offence. (3) Nothing in this section shall be construed as affecting the operation of section 16 or 16.1. Section 16.1 defines the defense of automatism and how it would be used: 16. …