Extreme Intoxication Akin to Automatism
In Canadian criminal law, voluntary intoxication is not a defence to criminal charges. However, there is a very narrow exception: the “extreme intoxication akin to automatism” defence, also known as “non-mental disorder automatism.” This defence applies only in rare circumstances where an individual can be found to have lost all voluntary control over their actions.
This article explains the current law regarding the extreme intoxication defence, following recent Supreme Court of Canada decisions and legislative amendments, and what it may mean for individuals facing criminal charges in Alberta.
Table of Contents
What is Extreme Intoxication Akin to Automatism?
Extreme intoxication akin to automatism, or non-mental disorder automatism, is a defence available only in rare and exceptional cases. It applies where a person enters a state akin to automatism, meaning they have lost voluntary control over their actions. It is important to note that this is not the same as being drunk, high, or experiencing a blackout. The impairment must be such that the person’s actions are completely involuntary.
How Did the Law Change in Canada?
Section 33.1 of the Criminal Code prohibited the use of self-induced intoxication as a defence for certain violent offences, including assault and sexual assault.
In May 2022, the Supreme Court of Canada declared section 33.1 unconstitutional. The Court found that a blanket prohibition on the defence can violate the Charter rights of an accused.
In response, Parliament amended section 33.1 to address these constitutional concerns. Under the current law, the Crown must prove, beyond a reasonable doubt, that:
- The accused voluntarily consumed an intoxicating substance;
- The accused departed markedly from the standard of care expected of a reasonable person in the circumstances by consuming the intoxicant in a manner that created a risk of violent loss of control; and,
- The risk that the consumption could cause extreme intoxication and lead to harm was objectively foreseeable.
This sets a very high threshold for the defence to succeed.
When Might This Defence Apply?
The defence is rarely available and generally applies only in cases involving:
- The use of potent intoxicants (such as certain hallucinogens, dissociative drugs, or a combination of substances) that can unpredictably cause a state of automatism;
- Expert evidence (from toxicologists, psychiatrists, or other relevant professionals) establishing that the accused was in a state of automatism, not merely intoxicated or experiencing memory loss;
- Circumstances where the accused’s actions were involuntary due to a state akin to unconsciousness, not simply a blackout or lack of recollection.
The defence cannot be used simply because someone does not remember the events or was highly intoxicated.
Does This Mean You Can Avoid Criminal Responsibility by Getting High?
No. The law continues to hold individuals criminally responsible for their actions while intoxicated in almost all circumstances. The extreme intoxication akin to automatism defence is only available in the rarest cases, where the legal threshold for involuntariness is met and the requirements of section 33.1 are not satisfied by the Crown.
The revised Criminal Code provisions aim to balance the protection of the public, particularly victims of violence, with the constitutional rights of accused individuals who lose control involuntarily.
Why Legal Help Is Critical:
If you or someone you know is charged with an offence, it is critical to seek legal representation.
At Shim Law, our Calgary criminal defence lawyers can review your case, determine whether this or any other defence may be available, and provide effective advocacy on your behalf.
Contact Shim Law:
Charged with a criminal offence in Alberta? We are here to help. Contact Shim Law for a confidential consultation with an experienced criminal defence lawyer.
