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By Joseph A. Neuberger,* Neuberger & Partners LLP
Criminal Defence Lawyers
On June 3, 2020, the Ontario Court of Appeal ruled that section 33.1 of the Criminal Code was unconstitutional for barring self-induced extreme intoxication as a defence in crimes of violence including those that involve bodily harm, death or sexual assault. Public outrage was quickly generated based on misinformation about what this decision means and how it will affect sexual assault cases in the future.
Petitions were launched to demand the verdict be appealed to the Supreme Court of Canada and, for other reasons, this is a case that would benefit from a Supreme Court ruling in order to ensure that all provinces are consistent and in compliance with Charter rights. According to the Ontario Court of Appeal, the law contravened “virtually all the criminal law principles that the law relies upon to protect the morally innocent, including the venerable presumption of innocence.”
The core misinformation behind the public outcry stems from a fallacious notion that this decision would allow men to sexually assault women after consuming drugs or alcohol as a pre-meditated defence strategy. There is no truth to this interpretation of the Court’s decision. Intoxication by alcohol in and of itself is not a defence to sexual assault.
At paragraph 137, Justice Paciocco, speaking about the historic decision in R. v. Daviault, 1994 CanLII 61 (SCC),  3 S.C.R. 63, clarifies:
“As with other defences, if there is no air of reality to the defence [of non-mental disorder automatism] based on the evidence, it should not be considered. It is also a reverse onus defence, and it requires expert evidence. If the defence is not established on the balance of probabilities, it fails. Indeed, it may well have failed for Mr. Daviault had the complainant not died before his retrial. According to evidence that Parliament has accepted, alcohol intoxication is not capable, on its own, of inducing a state of automatism: see Preamble of Bill C-72. Had similar evidence been presented and accepted at Mr. Daviault’s retrial, he would have been convicted. (Citations omitted. Emphasis added.)
Thus, it is clear, that any defence to a sexual assault allegation purely based on alcohol intoxication, on its own, is not a defence to sexual assault. Public faith in the legal system is essential to our democracy and the rule of law. Because law can be very difficult to fully explain, it is unfortunate that misplaced outrage can so quickly be manufactured and then be so difficult to assuage. Nevertheless, Canada’s legal system is something we should be proud of and our legal system becomes stronger when the public is fully informed about the reasoning and logic of important court decisions. The decision in R v Sullivan, is available online for those who wish to read the entire ruling and the analysis is clear and compelling as to why section 33.1 had to be found unconstitutional.
Why is section 33.1 Unconstitutional?
There are some fundamental principles of law that should be explained to put into perspective why this decision is important and necessary.
There are two components necessary for a prosecution to be successful and for someone to be found guilty of a crime. The first is the actus reas – having actually and voluntarily done the physical act in question. The second is mens rea – having an intention or knowledge to commit the act. Both of these elements must be proven to reach a guilty verdict beyond a reasonable doubt. It would be unfair to convict a person who either did not voluntarily commit the act in question or did not have the intention to commit the act.
The issue of voluntariness is an essential element of proving an offence, and the Court found that section 33.1 violates both section 7 and s. 11(d) of the Charter because it allows people to be found guilty and put in jail for something they did involuntarily. The Court states “The principles of fundamental justice require that voluntariness is an element of every criminal offence.”
The legal concept of voluntariness plays a central role in the Court’s decision. By illustration, if a person was forced to commit an act under threat/duress then it is not a voluntary act and they are not criminally and morally responsible. In the case of extreme intoxication the difficult question is whether or not the person reached a state akin to automatism or delirium sufficient enough to prove that they were not capable of control or awareness of their actions, which can include psychosis rendering the person incapable of appreciating the nature and quality of their act or that it was wrong.
What is Automatism?
At paragraph 2: Automatism is “a state of impaired consciousness, rather than unconsciousness, in which an individual, though capable of action, has no voluntary control over that action. R. v. Stone, 1999 CanLII 688 (SCC),  2 S.C.R. 290, at para. 156, per Bastarache J. Involuntariness is therefore the essence of automatism.”
A person, such as the two appellants in the Sullivan decision, who consumed an intoxicant which resulted in an unexpected condition of psychosis and automatism, essentially rendered them to be acting without knowledge of who they were actually harming or being able to appreciate what they were doing – and thus acted by compulsion of the condition. This meant that the acts were not voluntary. In each case, neither individual sought to commit the acts in question and acted without volition. One of the appellants will face retrial to determine if he had indeed reached that state of intoxication.
Drinking and Driving Offences:
The misinformation about this decision, also includes an untenable reference to drinking and driving law. The proposition is put – if a person who is highly intoxicated from alcohol can be convicted of impaired driving, why should a person who sexually assaults someone be acquitted because they were drunk? This proposition is ill conceived as an argument in support of section 33.1 and completely misses the issue of voluntariness necessary for a finding of guilt of any offence.
In drinking and driving cases, intoxication is not only an element of the offence but the gravamen of the offence. This means that “voluntariness” must be linked to the illegal conduct. Mr. Chan and Mr. Sullivan were charged with assaultive behavior not impairment.
Why Consumption of Alcohol Cannot Be Substituted as the Voluntary Act?
Much argument surrounds substituting voluntariness for the prohibited conduct to the decision to drink or take a drug, even a prescription medication:
 The Crown does not dispute the importance of voluntariness. It argues instead that the voluntariness inherent in voluntary intoxication supplies the required voluntariness element for the violence-based charges. With respect, the Crown’s reliance on the voluntariness of intoxication is misplaced. The purpose of the principle of voluntariness is to ensure that individuals are convicted only of conduct they choose. What must be voluntary is the conduct that constitutes the criminal offence charged, in this case, the assaultive acts by Mr. Chan. Without those assaultive acts, his voluntary intoxication would be benign. The converse is not so. It is an offence to engage in assaultive acts, even without voluntary intoxication. Clearly, the prohibited conduct that constitutes the offences Mr. Chan is charged with are the assaults, not the self-induced intoxication, and it is the assaults to which voluntariness must attach to satisfy the Charter.
Section 33.1 was engaged at the point of voluntary consumption of intoxicants, whether alcohol, illicit drugs or prescribed drugs, regardless of the quantity consumed. Thus, section 33.1 is disconnected from the moral blameworthiness of a criminal act. As noted by the Court:
 Second, the trial judge predicated his balancing on the generic proposition that “[t]hose who self-intoxicate and cause injury to others are not blameless.” He did so without apparent recognition of the expansive grasp of the concept of self-induced intoxication, catching as it does, even those who would fall into a state of automatism after choosing to become mildly intoxicated, and perhaps even those who are complying with a prescribed, medically-indicated drug that they know may cause intoxicating effects. The theory of moral fault that he relied upon cannot be sustained. (emphasis added)
Again, it should be understood not only from a Charter based analysis, but from a fairness perspective, a law cannot convict those people who did not intend to commit the offence in question:
 As Daviault recognizes, at p. 91, substituting voluntary intoxication for the required elements of a charged offence violates s. 11(d) because doing so permits conviction where a reasonable doubt remains about the substituted elements of the charged offence. As the trial judge pointed out in this case, that is the unconstitutional effect of s. 33.1 on Mr. Chan. It 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. (emphasis added)
Why Not to Worry About a Tsunami of Acquittals Based on Self-Induced Intoxication:
This is not a simple defence to establish by any stretch of the imagination. It is referred to as an “affirmative defence” because the accused person is required to establish the defence on a balance of probabilities. The accused is required to provide compelling expert evidence that is likely augmented by external facts to support the veracity of the defence.
 This submission also materially understates the effect of the common law after Daviault. As demonstrated, in the few cases where there will be an air of reality to the concern that extreme intoxication has led to automatism and then to violence, the prospects of escaping liability are slim. I have already expressed my view that it is unrealistic to think that s. 33.1 adds any meaningful deterrence augmentation to the Leary rules, as modified in Daviault. Realistically, who would choose to consume intoxicants because they have reasoned that, if all goes wrong, they will have the non-mental disorder automatism defence? However, assuming for the sake of the exercise that s. 33.1 could have some additional deterrent effect, one would think that the unlikelihood of the common law defence succeeding would have a comparable deterrent effect. (emphasis added)
Even if an accused is able to marshal evidence of automatism, the individual may only have available a defence under section 16 of the Criminal Code, which would not result in the individual “walking free” or as some like to colloquially refer to as “beating it on a technicality”:
 Moreover, even in those few cases where the accused might succeed in demonstrating automatism as the result of the voluntary consumption of intoxicants, the accused may not be acquitted. If the accused is unable to establish that the cause of the automatism was not a disease of the mind, which it will be if the automatism is internally caused or there is a continuing danger of further episodes of automatism, the accused will not be acquitted, but found not criminally responsible on account of mental disorder: Stone, at paras. 197-217. The accused would then be subject to a disposition hearing driven by public safety considerations.
As a practical example of how such a defence applies, the Sullivan decision is exceptionally illustrative. This decision was actually a combination of two different cases with similar facts: R v Sullivan and R v Chan. Sullivan had been attempting to commit suicide by ingesting prescription medication which ultimately caused him to go into a psychotic state. He stabbed his mother while unable to recognize who she was. Chan had an unusual reaction to recreational use of “magic mushrooms” and when he attacked his family members he thought he was killing Satan and was on a mission from God.
These two cases clearly show a difference between simply being drunk or impaired by drug, and the qualitative impact of intoxication on the mind of the accused where an extreme reaction occurs. This is in comparison to more common cases where someone becomes excessively drunk and then acts out some sort of internal rage or aggression after losing inhibitions or control and such an accused would not escape liability.
The History of Section 33.1:
The legislation in 33.1 of the Criminal Code that was found to be unconstitutional specifically acknowledges that the target of the legislation includes people who are not engaging in voluntary acts. It was created in response to the Supreme Court decision in Daviault.
In the preamble, Parliament recognizes “scientific evidence that most intoxicants, including alcohol, by themselves, will not cause a person to act involuntarily.” This is in line with both the public’s demand that people be held responsible for their behaviour and the reverse onus on a defendant to prove that they crossed the line into involuntary behaviour.
Despite this recognition, the law goes on to state in subsection 2 that a person is “criminally at fault where the person, while in a state of self-induced intoxication that renders the person unaware of, or incapable of consciously controlling, their behaviour, voluntarily or involuntarily interferes or threatens to interfere with the bodily integrity of another person.” (Emphasis added.)
At the heart of the problem with this law is that, in 1995, Parliament intentionally set out to create a law that would bypass the Supreme Court decision that had just been issued in R. v. Daviault. One of the rejected arguments from the Crown in the current decision was that Daviault only overturned “common law” precedent but that Parliament was able to create more official law that, despite being the same, would somehow give the law more validity.
As Justice Paciocco stated at paragraph 113:
“To override principles that deny accountability, for the purpose of imposing accountability, is not a competing reason for infringing core constitutional values. It is instead a rejection of those values. It cannot be that a preference for other values over constitutionally entrenched values is a pressing and substantial reason for denying constitutional rights.”
This circular argument is connected to Section 1 in the Charter which allows for a law to violate the Charter where the public interest value outweighs the value of the Charter right. It was the intention of Parliament, and of the organizations who consulted with them during the drafting of the legislation, that the government could use the stated goals of the legislation in the preamble to compel and override the Supreme Court’s previous decision.
During one committee hearing regarding the legislation held on June 6, 1995, a law professor repeatedly asserted that the Supreme Court in Daviault was “factually” wrong. Additionally, an advocate from a group called METRAC stated “I have absolutely no faith in the Supreme Court, which allowed the Daviault decision to put us in this position, to then decide on this bill.”
In Sullivan, at paragraph 54 Justice Paciocco addressed this issue saying:
“When Cory J. recognized that it was open to Parliament to legislate in this area, he was accepting that there are ways for Parliament to address extreme intoxication, but he was not suggesting that Parliament could do so in disregard of the constitutional principles described.”
Alternate Options Available To Parliament:
At the time of the crafting of the Bill, there had been other options debated that would have focused on creating a new criminal liability for people who recklessly self-intoxicate to such an extreme state that it would vitiate liability for their subsequent actions. This option may be a lot more effective regarding accountability as it could function as an included offence.
One law professor was opposed to this alternate idea saying “It was going to be something like ‘criminal intoxication’ or ‘criminally negligent intoxication’, but names like that lose what we’re talking about here.” The goal of the legislation was to specifically identify crimes against women and children as a uniquely culpable crime that can’t be vitiated and which will override other Charter rights under Section 1 concerns of public interest.
On this point, Justice Paciocco directly addresses this issue:
 First, I agree with the trial judge that the option of a stand-alone offence of criminal intoxication would achieve the objective of s. 33.1. Making it a crime to commit a prohibited act while drunk is the response Cory J. invited in Daviault, at p. 100, and that was recommended by the Law Reform Commission of Canada: see Recodifying Criminal Law, Report 30, vol. 1 (1986), at pp. 27-28. It is difficult to reject this option as a reasonable alternative given the impressive endorsements it has received.
 But would this new offence be equally effective as s. 33.1? Creating such an offence would arguably be more effective in achieving the Preamble objective of protecting against acts of intoxicated violence, as it would serve to deter voluntary intoxication directly and more broadly than s. 33.1 does. It would do so by making the act of intoxication itself the gravamen of the offence, and its reach would not be confined to those who are in a state of automatism because of self-induced intoxication. Instead, its reach would depend on whether the intoxication was dangerous, as demonstrated by the commission of a violence-based offence.
Justice Paciocco, at paragraph 90, further addressed the importance of the disconnection between the voluntary act of self-intoxication versus the choice to commit a criminal act and suggestions from the Women’s Legal Education and Action Fund (LEAF) that the language of the Bill regarding “standard of reasonable care” could somehow overcome the unconstitutional effect of the law:
“The notion that it is a marked departure from the standards of the norm to become intoxicated, let alone mildly intoxicated, is untethered from social reality, particularly in a nation where the personal use of cannabis has just been legalized.”
 Finally, even if moral fault can be drawn from voluntary intoxication, it is far from self-evident as a normative proposition that such intoxication is irresponsible enough to substitute for the manifestly more culpable mental states provided for in the general intent offences, such as intention or recklessness relating to sexual assault.
It will be up to the Supreme Court of Canada to decide the fate of this decision but also provides the Attorney General of Canada, the opportunity to not only intervene on the appeal but to take this moment to carefully consider, and possibly draft a piece of legislation that will address the issues related to intoxication and violence and still uphold Charter rights.
It should come as no surprise that a law crafted hastily as a knee-jerk reaction and with the intention of reversing a Supreme Court decision would ultimately be found to be in the same violation of constitutional rights.
For the public to have faith both in our legislators and in our criminal justice system it is essential that information is accurately provided and portrayed. Sensationalism can end up causing the very problem it seeks to solve. In this case, the unfortunate outrage and misinformation suggests that this decision may perpetuate underreporting due to a wrongfully held belief that an accused can defend a sexual assault allegation on simple intoxication defence.
Parliament and our courts have made many advancements in sexual assault law, many of which have the sole purpose of protecting complainants. Some of those changes come dangerously close to violating the right to a fair trial and have resulted in other constitutional challenges.
We must be extremely cautious when creating new laws that seek to obtain more convictions over maintaining the integrity of trials and the protection of Charter rights for all participants in the legal system.
The hysteria and rush to protest this particular verdict reached a frenzy within 24 hours of the decision being issued. Clearly this was not enough time for the public, and those rallying the protestors, to have made informed decisions.
The rule of law is not just dependent on public faith in the legal system, it is dependent on an informed public properly understanding the legal decisions of our courts and maintaining laws that are constitutional. While no right is sacrosanct, the barrier to the use of section 1 to override other rights must remain a high bar in a free and democratic society.
*Joseph Neuberger is certified by the Law Society of Ontario as a specialist in Criminal Law and has been in defence practice for over 27 years.
** Diana Davison is a journalist and civil rights advocate who specializes in research on sexual assault law and sterotypes as they relate to balancing the rights of complainants with the rights of the accused.