Supreme Court decision puts onus on Parliament to draft new extreme intoxication defence law

The ball is in Parliament’s court to come up with a constitutional law on extreme intoxication as a defence to serious criminal charges after the Supreme Court of Canada struck down the existing bar on its use in cases of self-induced inebriation, says Toronto civil litigator Stephany Mandin.

In R v. Brown, a unanimous nine-judge panel of the nation’s top court acknowledged Parliament’s “laudable” intent in passing s. 33.1 of the Criminal Code – which makes the extreme intoxication defence unavailable to those who committed violent offences after voluntarily consuming intoxicants – but concluded that the provision is unconstitutional.

“The Supreme Court’s decision essentially invites Parliament to go back to the drawing board,” says Mandin, principal of Mandin Law. “It will be interesting to see how quickly they will respond and what that will entail, because it’s going to be an issue that’s closely watched by many people, including women’s and victims’ rights groups.”

In his judgment, Justice Nicholas Kasirer found that s.33.1 breached both s. 7 of the Charter, by allowing a conviction without proof of the mens rea element of an offence; and s. 11 (d), which protects the rights of accused persons to be presumed innocent until proven guilty, by improperly substituting proof of self-induced intoxication for proof of the offence itself.

“The violations of the rights of the accused in respect of the principles of fundamental justice and the presumption of innocence occasioned by s. 33.1 are grave. Notwithstanding Parliament’s laudable purpose, s. 33.1 is not saved by s. 1 of the Charter,” Justice Kasirer wrote. “The legitimate goals of protecting the victims of these crimes and holding the extremely self-intoxicated accountable, compelling as they are, do not justify these infringements of the Charter that so fundamentally upset the tenets of the criminal law. With s. 33.1, Parliament has created a meaningful risk of conviction and punishment of an extremely intoxicated person who, while perhaps blameworthy in some respect, is innocent of the offence as charged according to the requirements of the Constitution.”

In his analysis, Justice Kasirer found that the violations could not be justified under s. 1 of the Charter, pointing to alternative courses of legislative action that would be less harmful to the rights of the accused.   

“Options have been advanced that would trench less on the rights of the accused, including a stand-alone offence of criminal intoxication. Alternatively, a path to liability for the underlying violent offence might be based on a criminal negligence standard that would allow the trier of fact to consider whether a loss of control and bodily harm were both reasonably foreseeable at the time of intoxication. This latter option could allow an accused to be convicted for the underlying violent act and not simply negligent or dangerous intoxication while achieving the minimum objective fault standard required by the Constitution,” he wrote.

According to Mandin, history could repeat itself if Parliament takes up the challenge set by the Supreme Court in Brown, since the roots of s. 33.1 itself can be found in another decision of the nation’s top court – the landmark 1994 case of R. v. Daviault that first recognized extreme intoxication as a defence to the sexual assault of an elderly and partially-paralyzed victim.

The legislation prohibiting the defence’s use when the intoxication was voluntarily self-induced followed soon after, drafted in response to the public outcry about the case.

The most recent judgment restored the acquittal of Matthew Brown, a Calgary man who attacked a stranger in her own home while in a psychotic state brought on by the consumption of magic mushrooms at a house party.

Brown was cleared at trial after the judge declared s.33.1 unconstitutional and allowed Brown to adduce expert evidence confirming he had no control over his actions at the time of the assault. However, Alberta’s Court of Appeal substituted a conviction after confirming the validity of the law that banned Brown’s use of the extreme intoxication defence.  

In R v. Sullivan, a companion case heard by the Supreme Court, Justice Kasirer also upheld rulings by Ontario’s Court of Appeal, which had gone in the opposite direction to its Albertan counterpart to conclude that s.33.1 was unconstitutional.

As a result, the decision affirmed the acquittal of David Sullivan on charges of aggravated assault for stabbing his mother while in a state of drug-induced psychosis brought on by a failed suicide attempt.

The Supreme Court also confirmed the Ontario appeal court’s order of a new trial for David Chan, a high school student who killed his father and grievously injured his father’s partner after consuming magic mushrooms with friends.

When they were released two years ago, the Ontario decisions in Sullivan and Chan met with fierce resistance from a number of groups, including the Women’s Legal and Education Action Fund (LEAF), which portrayed them as a step back for the equality and dignity rights of women and children – groups disproportionately victimized by intoxicated offenders.

And while she understands the concerns of those upset by the verdict, Mandin says it remains unlikely that the Supreme Court’s decision will result in a spate of fresh acquittals, since it only opens the way for defendants to advance the argument. In order to succeed in court, defendants will still have to convince a judge or jury that they were in a state of “automatism” akin to sleep-walking when the offence was committed.

“These are exceptionally rare cases, and the threshold for proving automatism is extremely high,” Mandin says. “It’s misleading to call it a drunkenness defence.”

Indeed, Justice Kasirer’s ruling drove home the message by distinguishing  a clear distinction between drunkenness and automatism

“It thus bears emphasizing that Mr. Brown was not simply drunk or high. To be plain: it is the law in Canada that intoxication short of automatism is not a defence to the kind of violent crime at issue here. The outcome of the constitutional questions in these appeals has no impact on the rule that intoxication short of automatism is not a defence to violent crimes of general intent in this country,” he wrote.

In a statement, Kat Owens, the project director at LEAF – an intervenor in the cases before the Supreme Court – hailed this portion of the judgment.

“Drunkenness has never been, and is not now, a defence to sexual assault,” she said. “We are pleased to see the Supreme Court clearly and specifically spell that out.” 

Still, Owens urged governments at all levels to boost their funding for alternative justice responses to sexual violence and ensure that justice system participants are properly trained on the limited application of the decision.

“Regardless of today’s ruling, we know that the criminal justice system too often fails and retraumatizes survivors of sexual violence,” she added. “We need to improve existing responses to sexual violence, while exploring alternative responses and working to prevent gender-based violence.”