This week on Legally Speaking with Michael Mulligan:
Criminal offences require two things, often described with Latin names: actus reus and mens rea. Actus reus is an intentional physical act. Mens rea is a guilty mind.
We don’t wish to convict people for physical acts that were not intentional: crashing your car when you have a heart attack or tripping and falling into someone else would not be criminal offences, even if someone else was injured.
We also don’t want to convict people who don’t intend to do something wrong. If, for example, a checkout clerk at a store fails to scan something in your grocery cart properly and you walk out of the store without having paid for the item, it would not constitute theft.
Being drunk will not ordinarily provide a defence to a criminal offence. When, however, someone is so impaired by alcohol or drugs that they are no longer capable of voluntary actions, it can amount to automatism. Such a state could result in involuntary movements like those that might result from sleepwalking or someone having a seizure.
The Supreme Court of Canada recently considered a case in which a young man consumed alcohol and psilocybin mushrooms which, according to expert evidence that a trial judge accepted, caused hallucinations and ultimately for him to lose voluntary control over his actions. In this state, the man broke into a house and hit a random woman with a broom, injuring her.
The Supreme Court of Canada found section 33.1 of the Criminal Code, which permitted convictions even where there was no actus reus, or mens rea, because of voluntary intoxication, to be unconstitutional.
The Supreme Court of Canada pointed out that section 33.1 made no distinction between legal and illegal drugs. Someone who had an adverse reaction to an anesthetic and, while incapacitated, involuntarily hit someone could have been convicted of assault because of section 33.1.
The court pointed out that it would be constitutionally permissible to create an offence of criminal intoxication, which would be focused on intentionally getting into a state of extreme impairment and then causing harm, rather than attempting to convict people for physical acts they had no control over.
Also, on the show, in a companion decision to the one referred to above, the SCC clarified the concept of Horizontal stare decisis.
The court system is organized as a hierarchy. There is a Provincial Court, a Superior Court, and a Court of Appeal in each province. The Supreme Court of Canada then hears appeals from all the Courts of Appeal. Lower courts are required to follow the decisions of higher courts in the same province.
The Supreme Court of Canada pointed out that judges are also required to follow the decisions of other judges from the same level of court in their province: Horizontal stare decisis.
This requirement promotes consistent, predictable decision-making.
A judge is only permitted to depart from a legal finding of a previous judge of the same court in the circumstances set out in a BC case dating from 1954: Re Hansard Spruce Mills.
Finally, on the show, the BC Court of Appeal, in a 2 – 1 split decision, has found some impugned provisions of the ICBC no-fault scheme to be constitutionally permissible. The provisions prevent injured people from suing in Supreme Court.
The issues in the case involved the jurisdiction of the BC Supreme Court judges and the lack of independence of the Civil Resolution Tribunal, which has been permitted to make decisions concerning disputes with ICBC, even though it’s not independent of government.