Concerns around extreme intoxication defence overblown

Fears about loosening restrictions on the use of extreme intoxication as a defence to criminal charges may be overblown, says Toronto civil litigator Stephany Mandin

In R v. Sullivan, the Court of Appeal for Ontario ruled that s. 33.1 of the Criminal Code – which bans the use of extreme intoxication as a defence in cases of sexual assault and other violent crimes when the inebriation is self-induced – is unconstitutional.

The result prompted outrage from victims’ rights groups, including the Women’s Legal and Education Action Fund, which portrayed the decision as a step back for the equality and dignity rights of women and children – groups disproportionately victimized by intoxicated offenders.

But Mandin, principal of Mandin Law, says the ruling is unlikely to result in a spate of acquittals, since it only impacts on a defendant’s right to advance the argument. To mount a successful defence, an accused person must prove that they were in a state of “automatism” akin to sleep-walking when the offence was committed.

“It’s a very high threshold that requires expert evidence,” Mandin says. “I can understand the uproar, but I think the public perception of the ruling’s implications is overbroad. Understood through the of lens criminal law and the right of a person to be considered innocent until proven guilty, it makes contextual sense.”

“The decision certainly does not stand for the proposition that you can get drunk and commit an assault without fear of any repercussions. Intoxication is not an excuse,” she adds.

In any case, Mandin says there’s a good chance the Supreme Court of Canada will have the final say if it grants the Crown leave to appeal the ruling.

“This is probably not the last we’ve heard of this issue,” she says.

Mandin explains that s. 33.1 can trace its own roots to another decision of the nation’s top court, the landmark 1994 case of R. v. Daviault, in which the Supreme Court recognized extreme intoxication as a defence to the sexual assault of an elderly and partially-paralyzed victim.

In response to public outcry about the case, Parliament enacted the provision, prohibiting the defence’s use when the intoxication was voluntarily self-induced.

But the tragic facts of both cases recently heard by Ontario’s appeal court highlight the limits of the blanket-ban approach taken in s. 33.1, Mandin says.

According to the ruling, David Sullivan – the defendant in the first case – stabbed and seriously injured his mother while in a state of drug-induced psychosis brought on by a suicide attempt in which he consumed a large amount of prescription medication.   

For David Chan, the defendant in the second case, the consequences of his actions while intoxicated were even worse. The high school student killed his father and grievously injured his father’s partner after consuming magic mushrooms with friends.

Each man was convicted of violence-based charges after trial judges ruled s. 33.1 barred them from running the automatism defence. While Sullivan did not challenge the constitutionality of the provision until his appeal, the trial judge in Chan’s case upheld the law – finding it was saved by s. 1 of the Charter, despite violating both sections 7 and 11 (d).

The three-judge appeal court panel agreed that s. 33.1 breached an accused person’s rights under sections 7 and 11 (d), which guarantee life, liberty and security of the person, and the presumption of innocence respectively. However, they parted company with Chan’s trial judge in their s. 1 analysis, finding that the violations were not demonstrably justifiable in a free and democratic society.

In his decision, Appeal Court Justice David Paciocco’s wrote that Parliament could have found other, less intrusive ways to protect against acts of intoxicated violence, including the creation of a stand-alone offence of criminal intoxication. 

Instead, s. 33.1 “enables the conviction of individuals for acts they do not will” among other “profound” deleterious effects, the judge wrote. At the same time, it “achieves little” in terms of deterrence or the encouragement of victims to report intoxicated violence, he added.

“As for recognizing and promoting the equality, security, and dignity of crime victims, it is obvious that those few victims who may see their offenders acquitted without s. 33.1 will be poorly served. They are victims, whether their attacker willed or intended the attack,” Paciocco wrote. “However, to convict an attacker of offences for which they do not bear the moral fault required by the Charter to avoid this outcome, is to replace one injustice for another, and at an intolerable cost to the core principles that animate criminal liability.”

Mandin understands why members of the public – who typically view criminal matters as a struggle between perpetrators and victims of violence – may struggle with the result. However, she explains that a criminal trial is more accurately viewed as revolving around the rights of the accused.  

“The Criminal Code is meant to govern crimes against the state, so even though you have a victim of a crime, that person is not the centerpiece. Instead, it’s the state against the accused,” Mandin says.  “For someone to be convicted there needs to be intent to have committed the act in question, and the appeal court decided that s. 33.1 interfered with that pillar of the criminal justice system.”