Unifying Incapacity-Based Defences in Criminal Law

We're pleased to be welcoming Professor Sandrine Ampleman-Tremblay (University of Alberta, Faculty of Law) for a lecture on the possibility of unifying incapacity-based defences in criminal law.

This will be a hybrid event, hosted on Thursday, October 1st at 12:00PM-1:00PM MST both in-person in the Law Centre (room 113) and online via Zoom.

To register for in-person attendance, please click the red button on the right-hand side of the page, or follow this link: Unifying Incapacity-Based Defences in Criminal Law | October 1 @ 12:00-1:00 PM MST | Eventbrite

To register for online attendance, please follow this link: Unifying Incapacity-Based Defences in Criminal Law | October 1 @ 12:00-1:00 PM MST | Zoom

Abstract: Automatism, self-induced extreme intoxication, NCRMD, and incapacity in the context of objective fault offences are among the most complex defences in Canadian criminal law. Their complexity stems from the convoluted relationship between the legal and scientific understandings of the concepts underlying these defences, as well as from the proliferation of distinct doctrines addressing a common principle: an accused who lacked the requisite capacity at the time of the offence should usually not incur criminal liability. Canadian case law adopts a source-based approach to incapacity. It requires courts to identify the key "source" of an accused’s incapacity and, on that basis, determine which defence applies. This approach overlooks the scientific phenomenon of co-morbidity, in which multiple conditions may simultaneously contribute to an individual’s incapacity, and, even if the absence of co-morbidity, often departs from scientific understandings of the condition behind the incapacity. The single-source approach also risks treating accused persons differently based on whether their incapacity is characterized as having a physical, mental, or substance-related source; distinctions that may have little bearing on whether the accused possessed the capacity required for criminal liability at the time of the offence.

This lecture reviews Canadian incapacity defences to identify their shared characteristics and argues that, in light of their similarities, they could be understood through a unified framework. It then proposes three alternative routes through which Canadian law could move toward a single incapacity defence.