From Defect to Dangerous: Has the Door Opened for Recognition of an Addiction-Based Defence in Canadian Criminal Law?

Abstract

For purposes of liability assessment, Canadian criminal law proceeds on a simplistic conceptualization of addiction. It presumes that the continued use of drugs or alcohol on the part of an addict is willed and deliberate, without regard to the potential impact of neurobiological vulnerabilities or concomitant mental disorders that impair volition and self-control. Not surprisingly, as a result, there is no accommodation within the law of criminal responsibility for the clinical realities of accused persons with these conditions. Significantly, in its 2011 decision in R v Bouchard-Lebrun, the Supreme Court of Canada signalled a willingness to vary this approach. It suggested that, if there were a risk of future dangerousness on the part of the accused by reason of addiction, resort might be had to the defence of not-criminally-responsible-by-reason-of-mental-disorder (“NCRMD”), and the accused might then be diverted from the correctional system to the forensic psychiatric system. It is perhaps obvious that a treatment-oriented response in a health care setting would benefit individuals seeking to overcome addiction. Moreover, to the extent that substance use and criminality are linked, public safety surely would be enhanced through the supervision of recovering addicts under the terms of Part XX.1 of the Criminal Code. Care must nonetheless be taken. It would be a matter of serious concern if the defence of NCRMD came to be used – unwittingly perhaps – as an alternative pathway for the preventive detention of addict populations.