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Lawrie McFarlane: Court verdict on extreme intoxication fails common-sense test

If an intoxicated man can summon the will and physical ­self-mastery to break into a woman's bedroom, overpower and rape her, can we really say he doesn't know what he's doing?
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Supreme Court Justice Nicholas Kasirer wrote in the decision that a ­person's decision to become ­intoxicated does not mean they intended to ­commit a violent offence, but Lawrie McFarlane asks: If an intoxicated man can summon the will and physical ­self-mastery to break into a woman's bedroom, overpower and rape her, can we really say he doesn't know what he's doing? ADRIAN WYLD, THE CANADIAN PRESS

The Supreme Court of Canada has ruled, unanimously, that extreme intoxication is a valid legal defence in the case of violent crimes like rape and murder.

The case revolved around a 1995 Act of Parliament that prohibited the extreme intoxication defence. The statute was prompted, in part, by a series of not-guilty verdicts that shocked the nation, such as the acquittal of a drunk man who raped a woman in her wheelchair.

There had also been demands by ­women’s groups who believed they were entitled to protection from such assaults.

Apparently, the court found this latter an unenlightened view, pointing out that the law’s “impact on the principles of fundamental justice is disproportionate to its overarching public benefits. It should therefore be declared unconstitutional and of no force or effect.”

Or, as Justice Nicholas Kasirer opined, writing for the court, “a person’s decision to become intoxicated does not mean they intended to commit a violent offence.”

Let’s take this one step at a time.

First, it’s difficult to determine what the court thinks intent actually means. The justices appear to think that if some causal factor — in this case drunkenness — supervenes, then intent goes out the window. Yet a variety of causal factors underlie human behaviour, some of which may be difficult to wrestle with.

Kleptomania and pedophilia, for ­example, may lie beyond the ability of given individuals to control. Yet we don’t let that indisputable fact get in the way of convicting them.

There certainly are some actions that someone under the influence of alcohol or drugs may be unable to control — falling down, slurring words or vomiting. But if an intoxicated man can ­summon the will and physical self-mastery to break into a woman’s bedroom, ­overpower and rape her, can we really say he doesn’t know what he’s doing? That he didn’t intend it?

Well yes, that is exactly what Kasirer is saying, and so said all nine justices of the court.

This fails the test of common sense, and more so, commonly understood usage around such terms as “intent,” ­“deliberate” and “choice.”

I know of no theory of action, a field I spent 10 years studying, that sustains such abuse of language, and certainly none that should command the unanimous adherence of nine highly trained jurists.

Again, we expect our justice system to sustain the fundamental ­requirements of a well-functioning society, first among them self-restraint and respect for ­others. But those principles go out the window here.

When a court can find no overarching public benefit in locking up an inebriated murderer, we’re entitled to ask by what standard the public benefit is measured.

Lastly, the fact that the opinion was unanimous, while the matter at stake is clearly contentious and capable of more than one judgment, is deeply troubling.

In parliamentary affairs, a three-line whip is issued to members of the ­governing party when an unpopular decision is to be taken and dissent is not permitted.

It feels very much as if that happened here. That nine judges voted in lockstep on such a controversial issue looks more like politics than law.

jalmcfarlane@shaw.ca