What I am saying, essentially, is that by limiting itself to the definition of extreme intoxication akin to automatism, section 33.1 of the Criminal Code leaves out the most serious and, more importantly, the most frequent manifestations of extreme intoxication—namely, all psychotic states that do not diminish the individual's consciousness. It is certain that section 33.1, as currently worded, leaves out all such states.
I will read you a passage from the Brown decision. Justice Kasirer is of the following opinion:
...it is notable that extreme intoxication akin to automatism is an exigent defence requiring the accused to show that their consciousness was so impaired as to deprive them of all willed control over their actions. This is not...the same as suffering a psychotic episode where physical voluntariness remains intact.
Section 33.1 is essentially limited to this type of extreme intoxication. However, in the majority of extreme intoxication cases—95% of such cases—people have taken drugs, and these are situations where there is no diminished consciousness or state of automatism. For example, if a person takes cocaine, develops delusions of persecution and then kills someone else, that is not a case of automatism. It has nothing to do with it. So section 33.1 would not apply to this person. In that case, the person could plead extreme intoxication at the threshold of insanity and they would be released, plain and simple.
Section 33.1 is limited to only one facet of extreme intoxication, which is what the Supreme Court stated in Brown, because it was a question of delirium. This is the rarest manifestation of extreme intoxication. We're talking about cases where the intoxication causes a state of automatism and the person becomes like a robot. This is extremely rare. The Association des médecins psychiatres du Québec and the Canadian Psychiatric Association will tell you that in 95% to 98% of cases of extreme intoxication, a person develops delusions or hallucinations as a result of drug use. Yet this type of manifestation is not covered in any way by section 33.1.
Under section 33.1, the prohibition on pleading extreme intoxication as a defence applies only in cases where, “intoxication...renders a person unaware of, or incapable of consciously controlling, their behaviour.” This leaves out the most serious and, more importantly, the most common manifestations associated with voluntary intoxication—that is, psychotic episodes where the person's consciousness is not diminished or obliterated. Since a person in a psychotic state is generally not in a position to know that their act is wrong, their conviction violates principles of fundamental justice as much as that of a person who commits the same act in a state of automatism.
It is certain that this will be challenged in court and that section 33.1, whose current wording limits extreme intoxication to a defence of automatism, will be declared unconstitutional. I'm not going to say anything else; that's the reality.