June 27, 2018
Doyon, Bouchard, Mainville
Appeal from a judgment of the Court of Quebec acquitting the respondent on a charge of failure to comply with a demand made under s. 254 of the Criminal Code (R.S.C. 1985, c. C-46) (Cr. C.). Allowed, with dissenting reasons.
The trial judge allowed the respondent’s defence of non-mental disorder automatism resulting from her advanced state of self-induced intoxication on a charge of failure to comply with a demand made by a peace officer to provide a breath sample under s. 254 (3)(a)(i) of the Cr. C., thereby committing the indictable offence set out in ss. 254 (5) and 255 (1) of the Cr. C.
The defence of non-mental disorder automatism impugns the voluntary nature of an offence (a component of the actus reus) rather than its deliberate nature (a component of the mens rea). In this case, the expert assessment submitted in support of the automatism defence focussed on the respondent’s judgment and her ability to understand the consequences of her refusal to comply with a demand to provide a breath sample. Moreover, contrary to the approach used by the expert and endorsed by the judge, true cases of automatism are extremely rare, including cases of extreme intoxication akin to automatism. With respect to the offence of refusing to comply with a demand to provide a breath sample — to the extent that the defence of voluntary intoxication leading to non-mental disorder automatism is available in such cases, which it is not — it is the accused’s capacity to refuse to comply with the demand that is at issue, not her ability to assess what is at stake and the consequences of a refusal. The refusal must be the result of an involuntary act, not a reckless one. The trial judgment obscured this important distinction by accepting an expert assessment that confuses the voluntary nature of the offence with its deliberate nature. That is an error of law.
In addition, because the defence of voluntary intoxication is not available with respect to the offence of refusing to provide a breath sample for the purpose of a breathalyzer test, voluntary intoxication akin to non-mental disorder automatism is also unavailable for this offence, because to allow such a defence would be contrary to the very object of the
offence at issue, which is an integral part of a statutory scheme specifically aimed at punishing those who drive motor vehicles following voluntary intoxication.
Because the exclusion of this defence results from statutory interpretation, s. 33.1 Cr. C. is not relevant. That provision proscribes the defence of voluntary intoxication with respect to certain offences, but it cannot be used to extend the defence it proscribes to a fundamentally incompatible offence. Nor is s. 1 of the Canadian Charter of Rights and Freedoms (R.S.C. 1985, App. II, No. 44, Schedule B, Part I) relevant to the analysis because the exclusion of this defence in impaired-driving related offences does not infringe an accused’s constitutional rights.
*Summary by SOQUIJ
Unofficial English Translation: Http://citoyens.soquij.qc.ca
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