Voluntary intoxication: Once again a defense for violent offenses

Par Sarah Bachar, McGill University law student et Jeremy van Doorn, avocat

On June 3rd, 2020, the Ontario Court of Appeal declared section 33.1 of the Criminal Code unconstitutional. Section 33.1 was enacted in 1995 and had been in force in Ontario for 25 years, until the recent R. v. Sullivan decision[1]. This decision dealt jointly with two appeals of striking similarity – that of David Sullivan and Thomas Chan. Both Sullivan and Chan were convicted of violence-based offences after ingesting drugs and subsequently entering a state of alleged automatism.

Section 33.1 of the Criminal Code prohibits individuals charged with violence-based offences from using a defence of automatism resulting from self-induced intoxication[2]. Under this provision, defendants cannot use as a defence that they lacked the voluntariness and general intention required by the offence to which they are accused[3]. Furthermore, defendants’ actions that interfere or threaten to interfere with the bodily integrity of another person are deemed, under section 33.1, to “depart markedly from the standard of reasonable care generally recognized in Canadian society,”[4] and therefore may result in their criminal responsibility despite their state of intoxication.

Section 33.1 of the Criminal Code was enacted in reaction to two controversial Supreme Court of Canada decisions that dealt with self-induced intoxication to the point of automatism. In Leary, the Supreme Court determined that voluntary intoxication cannot be raised as a defence for general intent offences[5]. Almost two decades later, in Daviault, an exception to this rule was carved out[6]. The Court in Daviault determined that in cases of extreme intoxication akin to automatism, the defence of self-induced intoxication is available to an accused to challenge the mental element required by the offence to which they are charged[7].

The Court in Daviault determined that the deprivation of the defence of automatism – as outlined in Leary – breached the Canadian Charter of Rights and Freedoms in three key ways. The Court explained that ss.7 and 11(d) of the Charter are breached by a deprivation of the defence of automatism if an accused is convicted of a crime to which there was “reasonable doubt as to the voluntary nature of the act committed by the accused,”[8] as voluntariness is a required element that must be proven by the Crown, and a failure to do so is in violation of the presumption of innocence[9]. Furthermore, the Court found that the Charter was breached due to the improper substitution associated with the Leary rule, arguing that the substitution between the self-intoxication of the accused and the offence committed lacked the necessary link between the “minimal mental element and the prohibited act”[10]. Lastly, the Court found s.7 of the Charter to have been breached, as the rule established in Leary allows for conviction where an accused lacks the requisite mens rea to commit the assault, substituting instead the mens rea of an intention to become intoxicated[11]. This point was further stressed by the Court’s statement that “the consumption of alcohol simply cannot lead inexorably to the conclusion that the accused possessed the requisite mental element to commit a sexual assault” and instead has the effect of “eliminating the mental element required for sexual assault”[12].

Section 33.1 was enacted a year after the Daviault decision, in 1995, and effectively reverses the exception laid out in Daviault for violence-based offences. This has now been reversed in Sullivan, where it was found that section 33.1 of the Criminal Code was unconstitutional and of no force or effect.

In both of the cases heard in the Sullivan appeal, the individuals were convicted of violence-based offences while in an alleged state of automatism. In both cases, the individuals relied upon a defence of non-mental disorder automatism. At first instance, Mr. Chan argued that s.33.1 of the Criminal Code was in breach of sections 7 and 11(d) of the Charter[13]. Mr. Sullivan attempted to overcome the prohibition that section 33.1 presented him by arguing to the trial judge that his intoxication was involuntary[14]. Both defences failed at trial due to section 33.1 of the Criminal Code.

The Chan Appeal

The first issue that the Court examined in the Chan appeal was whether the trial judge was bound by precedent to accept the unconstitutionality of section 33.1, that had been determined by a prior superior Court decision. The Court found the trial judge to not be bound by the previous superior Court decision, and that the trial judge had been correct in “considering the issue anew”[15]. Secondly, the Court considered whether the trial judge was correct in finding section 33.1 to be in prima facie violation of sections 7 and 11(d) of the Charter. The Court answered this in the affirmative, finding section 33.1 to be in breach of the constitutional principles outlined in Daviault[16].

i. The voluntariness breach

The Court found that section 33.1 of the Criminal Code infringed both sections 7 and 11(d) of the Charter. The Court found section 7 of the Charter to be breached due section 33.1’s ability to remove voluntariness from an offence, which the court found to be “contrary to the principle of fundamental justice affirmed in Daviault”[17]. Furthermore, the Court found section 11(d) of the Charter to be breached by section 33.1 due to its ability to allow for conviction despite reasonable doubt regarding the voluntariness of the accused in their commission of the charged offence[18].

ii. The improper substitution breach

The improper substitution of voluntary intoxication for the required element of the charged offence was found to be in contradiction of section 11(d) of the Charter, as was likewise asserted in Daviault. The Court concluded that the substitution of the elements of the charged offence allows for conviction in the face of reasonable doubt as to the substituted elements[19]. The unconstitutional effect of section 33.1 of the Criminal Code, therefore, is that “[i]t purports to permit Mr. Chan to be convicted of manslaughter and aggravated assault without proof of the mental state required by those offences, namely, the intention to commit the assaults”[20].

iii. The mens rea breach

The final Charter breach examined by the Court was the mens rea breach. The Court found section 33.1 to be in breach of section 7 of the Charter due to its ability to “[permit] convictions where the minimum level of constitutional fault is not met”[21].

The Court established that the offenses Chan was convicted of require no more than the minimum level of fault, and that the standard of penal negligence is the appropriate standard from which to evaluate the constitutionality of section 33.1, “which modifies the fault standard for violence-based offences committed while voluntarily intoxicated”[22]. Furthermore, the Court established that the fault imposed by section 33.1 falls short of meeting the penal negligence standard because, “[f]or penal negligence to exist so that criminal liability can be imposed, the relevant risk must be reasonably foreseeable such that it not only falls below standards of ordinary prudence to engage in the risky behaviour but doing so amounts to a marked departure from standards of ordinary prudence”[23] (emphasis in original).

Furthermore, the Court found that section 33.1 doesn’t “require a foreseeability link between voluntary intoxication and the relevant consequence, the act of violence charged,”[24] and that even if such a link was required, the violent offence charged would not necessarily be found to be a foreseeable risk of the accused’s voluntary intoxication, “yet s.33.1 will nonetheless enable conviction”[25].

iv. Section 1 analysis

The Court determined that the trial judge erred in his section 1 assessment of section 33.1 of the Criminal Code, and that the trial judge’s misstatement of the object of section 33.1 tainted “each stage of [the] s.1 analysis”[26].

The Court ultimately concluded that, in the face of their determination of the unconstitutionality of section 33.1, Chan had the right to a new trial[27].

 

The Sullivan Appeal

The first issue considered in the Sullivan appeal was whether or not Mr. Sullivan should be able to challenge the constitutionality of section 33.1 for the first time on appeal. The Court decided that the results of the unconstitutionality of section 33.1 found in the Chan appeal should result in the setting aside of Mr. Sullivan’s violence-based convictions, despite his failure to raise section 33.1’s unconstitutionality at first instance[28]. The Court then considered whether the trial judge had erred by relying on section 33.1, and ultimately found in the affirmative on this issue, given the conclusion of the Chan appeal[29]. The Court allowed Sullivan’s appeal for the violence-based convictions of which he was charged and substituted an acquittal.

Commentary

As a result of the Sullivan decision, self-induced intoxication to the point of automatism can be used as a defence by those accused of a violence-based offence in Ontario. In Quebec, the courts have likewise confirmed the unconstitutionality of section 33.1 of the Criminal Code, in R v. Dow,[30] but have determined that the infringements that the provision imposes on sections 7 and 11(d) of the Charter are justifiable by section 1 of the Charter.

The Sullivan decision is currently being appealed by the Crown. If the Supreme Court decides to hear this case, it will be interesting to see if they address a comment made by justice Lauwers when he states that:

“It is noteworthy that Canada is not alone in enacting such legislation. The United Kingdom, Australia, and the United States have enacted similar laws that go further in their application. For instance, in the United Kingdom, voluntary intoxication is never a defence for general intent offences. Compared to those jurisdictions, Canada’s approach is narrower: the application of s. 33.1 is limited to violent general intent offences.”[31]

The decision in its entirety may be read here

This work was prepared separately from this author’s employment responsibilities at the Public Prosecution Service of Canada. The views, opinions and conclusions expressed herein are personal to this author and should not be construed as those of the Public Prosecution Service of Canada or the Canadian federal Crown. 

[1] R. v. Sullivan, 2020 ONCA 333 [Sullivan].

[2] Criminal Code, RSC 1985, c. C-46, s. 33.1.

[3] Ibid.

[4] Ibid.

[5] Leary v. The Queen, [1978] 1 SCR 29.

[6] R. v. Daviault, [1994] 3 SCR 63 [Daviault].

[7] Ibid at p.103.

[8] Ibid at p.91.

[9] Ibid.

[10]Ibid at p.92.

[11] Ibid at p.90.

[12] Ibid.

[13] Supra note 1 at para 7.

[14] Ibid at para 8.

[15] Ibid at para 40.

[16] Ibid at para 42.

[17] Ibid at para 64.

[18] Ibid.

[19] Ibid at para 77.

[20] Ibid.

[21] Ibid at para 79.

[22] Ibid at para 80.

[23] Ibid at paras 82–83.

[24] Ibid at para 84.

[25] Ibid at para 86.

[26] Ibid at para 96.

[27] Ibid at paras 162-164.

[28] Ibid at para 182.

[29] Ibid at para 183.

[30] Dow c. R., 2010 QCCS 4276, rev’d on other grounds 2014 QCCA 1416.

[31] Supra note 1 at para 248.