BOTTLED UP ANGER

Last week, Ontario Court judge Patricia Wallace struck down a Criminal
Code amendment that says a person accused of violent crimes could not
use extreme drunkenness as a defence, saying it was unconstitutional.
The "drunkenness defence" is back and the firestorm has been
re-ignited. Commentators have begun venting a level of outrage not
seen since 1994, when the Supreme Court upheld this defence and set
off a furious blaze in the media and Parliament.

Now is a good time to remind ourselves that judges, like most people,
don't relish being vilified. When they make decisions that offend the
public, they do so because they believe they are compelled by the law.
We can disagree with that belief, but we must respect judges enough to
look behind the conclusions and to see what there is in the law that
makes them feel compelled.

To understand Judge Wallace's decision, bear in mind a fundamental
principle in criminal justice: We only punish people for acts that
they choose freely to perform. The insane man who is unaware of
reality is not morally culpable if he assaults someone because he
didn't choose to assault that person -- in a sense, his body did it
without his consent. The same is true for sleepwalkers, or epileptics
suffering a seizure.

Now imagine someone who drinks himself into a stupor. Common sense
says such a person would just collapse. But some have claimed -- as
the defendant in the case before Judge Wallace is claiming -- that
instead of collapsing, their bodies remained active, even committing
crimes. If so -- and that's a huge "if" -- then they didn't choose to
do what they did. So they can't be blamed for it.

That is the "drunkenness defence" that the Supreme Court upheld in
1994. In the midst of the public fury that followed that decision, the
federal government passed a law which abolished the defence in cases
of violent crime.

It was obvious this violated a basic principle of criminal justice
protected by the Charter of Rights. It was clearly unconstitutional.
Inevitably, a judge would say so -- and last week, Judge Patricia
Wallace did say so.

So should we panic and return to the hysteria of 1994? Judge Wallace
did not acquit the defendant, Michael Dunn, in her case. She simply
ruled that he could try to defend himself by claiming he was in fact
so drunk he didn't choose to commit the assault which he is charged
with. Mr. Dunn's chances of proving that to have been factually the
case, however, are slim. Scientists say there is little or no evidence
that alcohol can cause a person to be so drunk he doesn't know what he
is doing yet still be physically able to do it. If Mr. Dunn's only
hope is the drunkenness defence, he's in trouble.

So why worry about the law wiping out the drunkenness defence, if that
defence is all but impossible to prove anyway? First, because the law
wipes out intoxication as a defence for all drugs, not just alcohol,
and the scientific evidence is much less clear about the effects of
other drugs.

Second, the principle that people should only be punished for acts
they choose to commit is too precious to let a law stand that says, in
effect, "we don't care if you chose your actions or not." Not only is
it a denial of human freedom and dignity in the abstract, it is in
practice a precedent that would lead to the enactment of other
criminal laws that also contravene this fundamental principle. The law
has to go.

But it is, of course, offensive that someone who was so foolish as to
drink himself into a stupor has a chance, however remote, of simply
walking away from all the consequences of his actions. Does restoring
the drunkenness defence have to mean that?

No. There is another solution. As the late Chief Justice Brian Dickson
noted in several Supreme Court cases, German law allows a person to
use the drunkenness defence, but if he succeeds, he is then found
guilty of being "drunk and dangerous." That's because he chose to
drink himself silly, which made him dangerous to others. That choice
was negligent, and it should be punished.

In this way, the irresponsible drinker whose foolishness leads to
someone else being hurt is punished for what they did choose, but not
what they didn't. That is a bedrock principle of justice, and it
should remain sacrosanct.

This is what should have been done in 1994, but wasn't, when outrage
and rhetoric swept away constructive debate. Now, following Judge
Wallace's courageous decision, let's do what we should have done years
ago.