R v Sullivan, 2020 ONCA 333

Overview

Section 33.1 of the Code legislated that a person is guilty of a violent offence even if they were so intoxicated that they did not know what they were doing, so long as that intoxication was self-induced. For 25 years this provision was active in Canadian Law. No longer in Ontario. It has been declared of no force or effect by the Ontario Court of Appeal, meaning it is no longer active in this province.

The Ontario Crown has announced it intends to appeal the decision to the Supreme Court.

What’s Changed?

With s. 33.1 struck down, the defence of non-mental disorder automatism is now open to be used by defendants accused of violent crimes committed while in an automatic state as a result of self-induced intoxication.

While there is concern that this ruling will cause perpetrators to use the non-mental disorder automatism defence to evade responsibility for sexual assaults and other violent crimes, this defence is very difficult to access. It requires expert evidence, medical testimony, and the onus is on the accused to prove the defence to a judge or jury on a balance of probabilities. It is very rarely advanced and even more rarely successful, despite the large amount of attention it gets in the press and in law schools.

Falling short of this standard, intoxication, even a high degree of intoxication, is still absolutely no defence to any criminal offence.

This judgement took place at the Ontario Court of Appeal, meaning is must be followed by all lower courts in Ontario, and can be “persuasive” in courts of other provinces.

Facts

R v Sullivan is in fact two cases heard jointly. Two accused, Sullivan and a young man named Chan were tried and convicted of assault among other charges. Each was in an automatic state due to self-induced intoxication, but could not use that as a defence due to the operation of section 33.1.

The summary of the facts are:

• Chan voluntarily consumed magic mushrooms. After not feeling the effects, he consumed more. He then began to have a bad trip. Thinking his father was the devil, he stabbed him. His father died from his injuries.
• Sullivan attempted suicide by self-inflicted overdose of his prescription medication, Wellbutrin, which he had been taking to attempt to quit smoking. He experienced a psychotic episode and, thinking his mother was an alien, stabbed her.

Sidebar: What is Automatism?

Automatism is defined as “a state of impaired consciousness, rather than unconsciousness, in which an individual, though capable of action, has no voluntary control over that action”: see R v Stone, [1999] 2 SCR 290 at para 156. Involuntariness, as Appeal Justice Paciocco says, “is the essence of automatism.”

People in a state of automatism may have the benefit of a defence when they commit a criminal act. The burden is always on the accused to establish automatism.

The defence of automatism has two branches. The mental disorder defence, codified in s. 16 of the Criminal Code, applies where involuntariness is caused by a “disease of the mind.” If successful, a mental disorder automatism defence will result in a not criminally responsible verdict. A not criminally responsible verdict means a referral to the Ontario review board, detention or extensive community supervision may follow an asessment.

The other branch, known as the common law automatism defence, applies where the involuntariness is not caused by a disease of the mind. The same principles of mental disorder automatism apply. Where a non-mental disorder automatism defence succeeds, the accused is acquitted.

Legal Analysis Part 1: The Charter Violations

Section 33.1 was declared unconstitutional for violating two sections of the Charter: the right to life, liberty and security of the person (s. 7), and the right to the presumption of innocence (s. 11(d)).

The court found that s. 7 and 11(d) breaches occurred under three categories: the “voluntariness breach,” the “improper substitution breach” and the “mens rea breach.”

The Voluntariness Breach

Section 33.1 violates sections 7 and 11(d) of the Charter because it allows people to be convicted and imprisoned for something they did involuntarily. The principles of fundamental justice require that voluntariness is an element of every criminal offence. To remove the voluntariness element from an offence is therefore contrary to fundamental justice.

The counterargument that the Crown advanced was that the required voluntariness still exists in the voluntary consumption of an intoxicating substance. The court rejects this, stating that the voluntariness must attach to the offence charged, not some other action.

The Improper Substitution Breach

The improper substitution breach refers to the fact that s. 33.1 allows a person to be found guilty of an offence for which the essential elements are not proven. This violates s. 11(d) of the Charter.

In Criminal Law, every offence requires proof of the actus reus and the mens rea, the physical and mental element of the illegal act, respectively. These elements are specific to each offence.

Section 33.1 runs afoul of this rule because it replaces the burden to prove the actus reus and mens rea requirements of violent offences with proof off another action: which is the consumption of intoxicating substances.

The Mens Rea Breach

Section 33.1 breaches s. 7 of the Charter because people can be imprisoned for an act even when they do not not have the minimum mens rea that reflects the nature of the crime.

There are various levels of criminal fault in the law. A person does not always need to desire and intend the outcome of their actions to be held criminally responsible. There are lots of offences, known as general intent offences, where someone can be held criminally responsible for their behaviour where their behaviour is so poor that it rises to the level of penal negligence, the minimal level of criminal fault.

Penal negligence occurs where a person’s intentional behaviour is so poor that it departs markedly from what a person would normally do. A simple example is dangerous driving causing death. For example, someone who drives recklessly by going 50km above the speed limit not intending to kill someone. Because driving that fast substantially deviates from the level of care expected of a reasonable person, that satisfies the mens rea component of the offence should death result from this action. The guilt comes from the fact that someone’s death was an objectively foreseeable consequence of going 100 km/h in a 50 km/h speed zone.

Section 33.1 imposes a fault level that does not even meet the minimal level of penal negligence. It creates a scenario where a person can be found guilty without any link to foreseeability. To be found guilty, the prosecution only needs to prove you (a) became intoxicated by voluntarily consuming a substance and (b) interfered with the bodily integrity of another person. The law does not require any level of subjective or objective foresight of the consequences. There is no link between the voluntary act of consumption and the involuntary act of violence.

Second, even if section 33.1 required a link, the violent behaviour is not an inevitable foreseeable risk of voluntary intoxication. Nonetheless, s. 33.1 will enable a conviction. Chan is a perfect example of this point. A reasonable person in Mr. Chan’s position could not have foreseen that consuming mushrooms may lead to a knife attack on his father and step-mother.

Third, the element of penal negligence that is normative – that the negligent conduct is a marked departure from the standards of a reasonable person – is missing. The voluntary intoxication required by s. 33.1 does not require an accused person to intend to become intoxicated to the point of automatism, or even to become extremely intoxicated. It is enough to meet the fault requirements of s. 33.1 that a person takes a substance intending to become even a little bit intoxicated. Anyone who intends to get a little bit high from mushrooms, or a little bit tipsy from alcohol, does not rise to the level of a “marked departure” from reasonable behaviour.

Lastly, even if we can ascribe moral fault to voluntary intoxication, it is not irresponsible enough to substitute the more culpable mental states required for manslaughter or sexual assault.

Legal Analysis Part 2: Section 1 Justification

Even if a Charter violation is found, the government still has a chance to “save” the law under section 1 by setting out a valid justification for the violation. This requires demonstrating (1) that the law was enacted for a “pressing and substantial purpose” and (2) that the law imposed is proportional to the objective being sought.

The Ontario Court of Appeal defines two objectives for the law, the “accountability” purpose and the “protection” purpose:

• “Accountability”: To hold assailants self-intoxicated to the point of automatism accountable for their actions.
• “Protection”: To protect victims from assailants self-intoxicated to the point of automatism.

The court found that the second purpose is “pressing and substantial” but the former is not. The reason for this is a complex bit of legal reasoning where they state that trying to hold people accountable in direct conflict with core Charter principles is not a valid purpose. In this case, Parliament’s stated objective is to hold people accountable despite the mens rea and actus reus of an offence not being proven.

Put this way, the court’s conclusion is that the purpose of the law is to deliberately undermine Charter rights.

The court then moves on to the “protective” purpose, which is still valid. However, it is dismissed as having no rational connection to the law being imposed.

A law must have a deterrent effect to have any protective power. However, the court reasoned that a person would never actually be deterred from having a drink on the off-chance that they later would enter in an autonomous state and lead them to violence.

It’s well known that, tragically, violence often follows a decision to get drunk, since drinking lowers inhibitions and leads to behaviour that one might not otherwise engage in when in total sober control.  In the vast majority of cases, the decision to drink is absolutely no defence to the violence that arises. This does not deter people from drinking, so it is irrational to think that barring the defence associated with more extreme, automaton level of intoxication will affect people’s behaviour.

The court also finds that the law is not minimally impairing on Charter rights. Its objectives could have been achieved by a number of other means, including doing nothing and leaving the law as it was.