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Top court in Canada just proved it's total incompetence and the need to abolish it.


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nothing guarantees you will get off

you still have to prove to a jury your case of "extreme intoxication"

that's gonna be a very long shot in most cases

the court has simply said that the government is not allowed to rule it out as a defence

no matter how faint the hope of winning in court

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Posted (edited)

What is to prevent someone who wants to commit a serious crime from deliberately getting very intoxicated and then committing the crime with the view of using that as a defense?  This just adds another possible loophole for a criminal to escape justice for his crime.

The fact is the number of NCR (not criminally responsible) rulings is growing in Canada.  This new ruling by the SCC will undoubtedly increase the number of NCR rulings.

The difficult decisions in the growing numbers of NCR cases | Healthing.ca

(1) LIST: Canada’s prominent not criminally responsible (NCR) cases | Globalnews.ca

One peculiar statistic is there are over ten times as many people per thousand of population in Quebec who get off on the NCR ruling than in B.C.  Quebec judges seem to have a much more lenient view and acceptance of the NCR verdict than the rest of Canada for some reason.

Edited by blackbird
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46 minutes ago, blackbird said:

What is to prevent someone who wants to commit a serious crime from deliberately getting very intoxicated and then committing the crime with the view of using that as a defense?

the jury doesn't accept their argument and finds them guilty therein

same as any other trial

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5 hours ago, Dougie93 said:

the jury doesn't accept their argument and finds them guilty therein

same as any other trial

The Supreme Court just ruled it can be a legitimate defense.  So some will get off because of the ruling.

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20 minutes ago, blackbird said:

The Supreme Court just ruled it can be a legitimate defense.  So some will get off because of the ruling.

Only a very few in the most extreme cases by the sounds of it.  It certainly doesn't sound like a slippery slope.

Quote

 

The court’s majority confirmed that intoxication is not a defence to crimes of general intent, such as assault or sexual assault, but found the Charter required an exception in cases where accused is so intoxicated, they enter a state of automatism in which they are incapable of forming criminal intent.

https://www.canadianlawyermag.com/practice-areas/criminal/law-prohibiting-defence-of-extreme-intoxication-akin-to-automatism-unconstitutional-scc-rules/366624#:~:text=The court's majority confirmed that,incapable of forming criminal intent.

 

 

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Posted (edited)
5 hours ago, eyeball said:

Only a very few in the most extreme cases by the sounds of it.  It certainly doesn't sound like a slippery slope.

 

Many may agree with you, but also many would disagree.  It seems to boil down to whether one is a liberal or left-leaning or a conservative-leaning.  Liberal-left people seem more willing to accommodate people accused of crimes if the accused's lawyer can make a strong enough argument that the accused was mentally ill at the time of the crime.  This is similar to the Supreme Court ruling of intoxication or the accused's lawyer claiming the accused was acting as an automon and didn't know what he was doing. 

Conservative-leaning people often don't accept that argument because they believe someone who commits a serious crime should be held accountable regardless of his state of mind at the time.  Often the question of state-of-mind of an accused is very difficult to prove or discern because it is an abstract thing that has come and gone by the time the person is apprehended and tried.  The problem with giving legitimacy to these things as a defence is they ignore the rights of the victim and their family who have a right to see justice.  Letting the accused off may also put society at greater risk as well as sending the message the accused is getting off or getting off lightly. 

Letting criminals off on NCR or intoxication as a defence is also seen as the liberal soft-on-crime approach which it is.  We have seen convicted murderers sent to aboriginal healing centres which led to a huge outcry from the public and opposition party.  We have also periodically seen criminals let out on parole who went on to murder other people.  In addition we periodically hear the police warning about a dangerous potential rapist who has been released in the community.  These releases were all made by our courts and criminal justice system.  In Victoria right now, groups of young people have been going into downtown, some with knives or bear spray, and creating mayhem and then being arrested.  But as soon as they have been arrested, they have been released shortly after.   

There are countless cases of repeat offenders in cities in B.C. who have been arrested for crimes of various sorts and they have been released shortly after their arrest.  Some dozens of times and even cases of individuals who have been charged hundreds of times and they spent little or no time in jail.  

Not criminally responsible a slippery designation: DiManno | The Star

Edited by blackbird
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8 hours ago, blackbird said:

The Supreme Court just ruled it can be a legitimate defense.  So some will get off because of the ruling.

which was the case in Canada before this law was enacted in the 1990s

so this is nothing new, this is just going back to the way it used to be

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This an example of a real difficult problem. And we know very well that here in this country we can deal with those in one of two ways: 1) pretend it doesn't exist until at all possible and then some more 2) convince ourselves that if we could pretend that it doesn't exist for long enough, it would fix itself, anyhow.

The problem is difficult indeed. Possibly (not an expert) some of deep drinking cases can result in genuinely untended near-unconscious aggressive behavior. I can attest to the not conscious part but here's the problem: only post, after and some, maybe long time after the fact, and not at the time of it. To know that behavior was a) unintended and b) not conscious nothing short of a mind reading at the time of the act would give an objective, confident grounds for a decision. No, just can't get into another individual's mind.

Note, not characteristic does not equal unconscious by long or any measure! This is the whole reason many of us drink in the first place, and it is, the act of intoxicating is entirely conscious and deliberate.

The objective decision comes down to this point: is there something in the mind of the accused that keeps telling "let's kick him, and more and don't leave yet some more". That would be conscious, however uncharacteristic and distorted, and we convict such criminal acts. Or it, the brain is completely blank at the time of the act. No you can't decide that based on accounts of witnesses or future recollections, not with any objectivity. Only a neuroscientist with a full probe could tell some probabilities far from "beyond reasonable doubt".

And this leaves us with a choice: to convict some fraction of genuinely unintended drunken assaults as criminal; or to let another fraction of criminal assault go with no responsibility, literally ("not criminally responsible"). And if we go the second route, we can be assured that every high-level drunken assault, driving, etc case would attempt to invoke this defense. Now it's allowed and invited why not, can't go wrong.

So how do we go about it? Basically, we're trying to convince ourselves that with a real difficult problem in our hands, we can dress some folks into fancy robes and then pretend that they would know something we don't. Here, it doesn't exist anymore.

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1 hour ago, Dougie93 said:

this is just going back to the way it used to be

Congrats to us, high five! So in the 90-s (that would be some three decades back) we had a problem of high fraction of drunken assault cases (guessing, quite a few of high level ones) going "not responsible" route. There were some media stories (guessing) public discontent and the need to do something.

Next, some generations of obscenely paid politicians (see another discussion) spends considerable (taxpayer funded) time to come with great new Law to fix the problem. Great.

Next, some generations of ... you get it, spend considerable ... you get it, to check constitutionality of the Great New.. with the result, some decades on of overturning. Hurray. Great. Three decades some generations and uncounted public millions on, we are back.. where exactly?

High five, Canada! Yes we can!

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3 minutes ago, myata said:

Congrats to us, high five! So in the 90-s (that would be some three decades back) we had a problem of high fraction of drunken assault cases (guessing, quite a few of high level ones) going "not responsible" route. There were some media stories (guessing) public discontent and the need to do something.

Next, some generations of obscenely paid politicians (see another discussion) spends considerable (taxpayer funded) time to come with great new Law to fix the problem. Great.

Next, some generations of ... you get it, spend considerable ... you get it, to check constitutionality of the Great New.. with the result, some decades on of overturning. Hurray. Great. Three decades some generations and uncounted public millions on, we are back.. where exactly?

High five, Canada! Yes we can!

the court is simply saying that the law cannot be written in a way which rules out a defence preemptively

the government cannot be the jury, it is the jury who decides if your defence is valid or not, by trial

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54 minutes ago, Dougie93 said:

the court is simply saying that the law cannot be written in a way which rules out a defence preemptively

I understand that. And yet here we are: decades gone; public money spent and the result, none. Outrageously paid MPs read and voted for a statement that cannot be supported, outrageously paid lawyers read and approved, outrageously paid bureaucracy stamped and sent into the world and we signed the bill tips included. I have only one question: how do we know that this is the best we can have? Who told us no, you can't do any better?

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17 hours ago, Dougie93 said:

you still have to prove to a jury your case of "extreme intoxication"

No jury can decide on the automata defense with any reasonable objectivity. It is not physically possible to inspect the alleged culprit's mind at the time of the act. This would be a guesswork show or attorney performance show that probably caused the idea of the change in the first place.

Edited by myata
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3 minutes ago, myata said:

I understand that. And yet here we are: decades gone; public money spent and the result, none. Outrageously paid MPs read and voted for a statement that cannot be supported, outrageously paid lawyers read and approved, outrageously paid bureaucracy stamped and sent into the world and we signed the bill tips included. I have only one question: how do we know that this is the best we can have? Who told us no, you can't do any better?

cynicism is really of no utility

far be it from me to defend the governance in Canada, Canada is a basket case at this point

but being outraged serves no purpose

Canada is what it is, it's not going to change

so what do you want ?

revolution ?

how far are you prepared to go to do better ?

overthrow the Confederation ?

end Canada and make new countries out of the wreckage ?

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2 minutes ago, myata said:

No jury can decide on the automata defense with any reasonable objectivity. It is not physically possible to inspect the alleged culprit's mind at the time of the act. This would be a guesswork show or lawyer performance show that probably caused the idea of the change in the first place.

that's the nature of all trials

the court is simply saying that the Crown cannot assume the role of jury

if you don't trust Canadians to be jurors, that is a separate issue

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1 hour ago, Dougie93 said:

that's the nature of all trials

Not at all. Some matters can be settled in some or most cases with reasonable expectation of objectivity. Is the victim still alive, an example.

This is not one of those cases. Here we have the problem of objectivity in principle. And the bureaucracy decided to play infinite soccer with it, kicking from this court to that and back again and why not it's being paid generously for each kick. And you are dismissing it to the general, undefined background. Note that neither offers meaningful and effective answers. Good luck to us, in this century. Nobody promised the dinosaurs evolution.

Edited by myata
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1 hour ago, myata said:

No jury can decide on the automata defense with any reasonable objectivity. It is not physically possible to inspect the alleged culprit's mind at the time of the act. This would be a guesswork show or attorney performance show that probably caused the idea of the change in the first place.

Exactly!  It is not physically possible to inspect the alleged culprit's mind.  It would be guesswork.  Nobody in a robe or fancy suit could objectively tell the court what caused the crime.  It seems Canada in it's quest to look like it is righteously upholding a constitution or Chart Right for an accused criminal, even murderer, must give an appearance it is bending over backwards.  It thinks it can play god in effect.  The whole idea is absurd.  They should not be focused on a Charter Right because once an accused commits a crime there should be no Charter Right to protect them from accountability for their heinous crime.  The accused should be judged for the harm they did and not for their decision to become intoxicated and then excused for the crime.  That should be the rule and there should be no deviation, otherwise there is no justice.  When one commits a crime, they should be charged and punished for the crime.  Period.

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Well now of course all of this would fully apply as any court will happily rule to pot and any other imaginable ways of intoxication that weren't a problem or weren't even invented back in the 90s. On autopilot for the second century, we're bound to arrive somewhere. That much is assured.

Edited by myata
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On 5/14/2022 at 5:08 PM, blackbird said:

What is to prevent someone who wants to commit a serious crime from deliberately getting very intoxicated and then committing the crime with the view of using that as a defense?  This just adds another possible loophole for a criminal to escape justice for his crime.

The Supreme Court isn't trying to defend intoxication and has not ruled out subsequent legislation to deal with what you're talking about, going so far as to suggest and recommend the federal and provincial governments table other (better) legislation.  

The key issue here is one of intent.  The Court confirmed that it was unconstitutional to deprive someone of the right to defend themselves against accusations of criminal intent when they are so tripped they aren't even in control of themselves.  This isn't just getting drunk, this is black-out auto-pilot cracked out messed.  That doesn't mean they can't be held responsible and the Court explained that "drunkenness is never a defence for certain crimes, including manslaughter, assault and sexual assault, a clarification Owens said was valuable "given the many ways in which we see the criminal justice system fails survivors of sexual violence."

https://www.ctvnews.ca/canada/law-barring-use-of-extreme-intoxication-as-criminal-defence-unconstitutional-scc-1.5901881

They have also explained that if you get high on mushrooms or meth or get black-out drunk, a reasonable person should foresee consequences and offenders can be held accountable for their actions in this regard.  They just have the right to defend themselves against claims that they intended to commit a violent offense.  

 

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6 hours ago, Moonbox said:

The key issue here is one of intent

This is actually an interesting topic and maybe a discussion here is one of the few remaining sensible options given that supposedly competent (and outrageously paid for that) institutions yet again proved themselves patently inept in addressing the problem.

Let's try to separate issues and possibly find at least some common ground:

1. Is an act of "extreme intoxication" intentional? (in many common cases at least). If so does it presume responsibility for subsequent behavior?

Note that if not we're in a legal limbo. They did not intend it when decided to drink then the intent may have changed but we cannot get a mind reading at that moment so it's down to the guessing game, was there intent or not. Parading experts doesn't change a bit in the fact that without a mind reading it's not possible to decide on intent with any confidence and even with one it could be a big question.

2. Is the condition objectively verifiable, with reasonable means and at some point after the act? If not then we are back at the same issue as three decades back. Someone claims it; it cannot be verified objectively; then it has to be a lottery or a guessing game. Again, dressing in fancy clothing and parading experts doesn't change anything.

3. I absolutely fail to see the difference between drunken "automata" behavior and mushroom, drugs etc caused one. If criminal intent cannot be linked to the decision to intoxicate this distinction isn't clear at all. What are the reasons to make it? Or are we generally in the phase where anyone sitting high enough can say anything with no need for factual or even common sense checks?

It appears to me that with that broader interpretation of intent justice system will be going into a dead end trajectory. To know current intent in someone's mind with any certainty is not possible today, and nobody can tell when and if it would be possible. To perform expert show or woodoo dance wouldn't change anything in essence, only the appearance. That is the essence of the problem and the society itself has to understand it and come with a meaningful resolution rather then ship it off to endless bureaucratic dance and expect something good from it. If indeed there's a possibility of crime that can be committed in a non-conscious state, without understanding how to identify it, and what to do with it any formal process becomes pointless and useless.

Edited by myata
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8 hours ago, Moonbox said:

The Supreme Court isn't trying to defend intoxication and has not ruled out subsequent legislation to deal with what you're talking about, going so far as to suggest and recommend the federal and provincial governments table other (better) legislation.  

The key issue here is one of intent.  The Court confirmed that it was unconstitutional to deprive someone of the right to defend themselves against accusations of criminal intent when they are so tripped they aren't even in control of themselves.  This isn't just getting drunk, this is black-out auto-pilot cracked out messed.  That doesn't mean they can't be held responsible and the Court explained that "drunkenness is never a defence for certain crimes, including manslaughter, assault and sexual assault, a clarification Owens said was valuable "given the many ways in which we see the criminal justice system fails survivors of sexual violence."

https://www.ctvnews.ca/canada/law-barring-use-of-extreme-intoxication-as-criminal-defence-unconstitutional-scc-1.5901881

They have also explained that if you get high on mushrooms or meth or get black-out drunk, a reasonable person should foresee consequences and offenders can be held accountable for their actions in this regard.  They just have the right to defend themselves against claims that they intended to commit a violent offense.  

 

I have to disagree.  Criminals should be punished for the crime they commit, without reference to intoxication.  It is just another liberal left way of being soft on crime.  Seriously I don't believe any intoxicated criminal has any "special rights" if it is proven he committed the crime.  Fed up with the lenient justice system that lets criminals go free and fed up with the liberal left that voted these clowns in.

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13 hours ago, blackbird said:

It is just another liberal left way of being soft on crime.

It goes way beyond crime, more generally, detachment of the act from responsibility or indeed, accountability. The act has no relation to the outcome unless there's that vague notion of "intent" that cannot be defined with any objectivity, let alone proven reliably. And then, as a result you get what?

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Posted (edited)
On 5/19/2022 at 5:48 AM, myata said:

It goes way beyond crime, more generally, detachment of the act from responsibility or indeed, accountability. The act has no relation to the outcome unless there's that vague notion of "intent" that cannot be defined with any objectivity, let alone proven reliably. And then, as a result you get what?

The concept of "intent" in the court trial proceedings is a gold mine for lawyers and creates a vast avenue for ongoing argument, discussion, and debate in every case.  Without the concept of "intent", the court proceedings would probably be a lot faster and less hours spent in court cases for lawyers.  Thus the potential for less money being earned.  The more defences that are available, the more time and money required to pursue them.

Edited by blackbird
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2 hours ago, blackbird said:

The concept of "intent" in the court trial proceedings is a gold mine for lawyers and creates a vast avenue for ongoing argument, discussion, and debate in every case. 

Makes sense. Some thousands years back there were people called druids who performed strange rituals and claimed to be able to control weather and even future. With something like "intent" that cannot be defined, let alone determined objectively the field is wide open for all kinds of rituals.

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