By: Lisa Silver
PDF Version: Does the Criminal Law Have the Capacity to Respond to the Intoxicated Automaton?
Case Commented On: R v Brown, 220 ABQB 166
I am at the point in my 1L criminal law class where we start talking about capacity issues, namely whether a person by virtue of mental disorder, automatism and/or intoxication has the capacity to commit a criminal offence. This is a complex and controversial area of the law. In discussing these issues, we criss-cross across the lines between legal, medical and policy concerns. We wade through case law stretching back decades that sometimes fundamentally change the common law and at other times hold strictly to it. Although each capacity issue involves detailed legal tests, when these issues arise together, the legal directions become overly complex and downright confusing. This “perfect storm” of capacity issues arise in the recent decision of R v Brown, 220 ABQB 166, challenging our legal conception of capacity and leaving us wondering whether the criminal law has the capacity to adequately respond.