Self-induced intoxication defences in sexual assault cases: the case of R. v. McKaw

Among the various defenses in criminal law are the non-insane automatism defenses. The court in R. v. Rabey explains automatism as:

Involuntary behaviour, the state of a person who, though capable of action is not conscious of what he is doing. It means an unconscious involuntary act where the mind does not go with what is being done […] It is a state of consciousness where the persons is capable of action but has not voluntary control over the action.

The defence of automatism as described above involves a consideration of the provisions of s. 16 of the Criminal Code which read as follows:

16 (1) No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.

(2) Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection (1), until the contrary is proved on the balance of probabilities.

(3) The burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal responsibility is on the party that raises the issue.

There are a variety of non-insane automatism defenses, but the some of the most memorable are the defenses of Advanced Intoxication and Extreme Intoxication.

The current state of the law is such that an accused person can negate the mens rea element of the offence as well as the necessary voluntariness element by merely establishing that his state of intoxication might have impaired his foresight of consequences.  All the accused must do is raise an “air of reality” to such a claim, at which point the onus shifts to the Crown to prove beyond a reasonable doubt that the accused – despite his claim of intoxication – did indeed have the requisite foresight to satisfy the mens rea of the offence.  This doctrine was set out by the Supreme Court of Canada in R. v. Daley.

The “advanced intoxication” argument is available in specific intent offences, such as Break and Enter with Intent to Commit and Indictable Offence or Murder.  The defence is not required to prove the quantity or quality of intoxicants consumed, or to call expert evidence (see R. v. Lemieux, 2009 QCCA 2109).

The Supreme Court in Daley also speaks of “extreme intoxication”, which rises to the level of automatism and negatives either the actus reus or the mens rea of even a general intent offence.   The accused must establish this on a balance of probabilities. This defence is more extreme and more difficult to prove; it does, however, apply to general intent offences as well as specific intent offences.

Of note, s. 33.1 of the Code, until very recently in Ontario, disallowed the use of this defence for violent offences if the offence alleged involves a crime “against the bodily integrity” of any person. This was the subject of litigation in R. v. McCaw.

The argument for the defence of self-induced extreme intoxication is well documented by Spies J. in the case starting in 16^th century England.

More recently, in 1977, the Supreme Court of Canada in R. v. Leary, held that drunkenness was not available as a defence to negate the mens rea for a general intent offence. The Court held that the defendant, by becoming voluntarily intoxicated, committed the mens rea for a general intent offence. Accordingly, under the Leary approach, the recklessness of becoming drunk was deemed to be sufficient to supply the fault element for the commission of the particular general intent offence.

In 1994, This changed with the Supreme Court of Canada’s decision in R. v. Daviault, which dealt with a case where the defendant was acquitted on account of his extreme intoxication by alcohol; akin to automatism, at the time of the sexual assault. The majority determined that a strict application of the common law rule in Leary did not withstand constitutional scrutiny and that it violated ss. 7 and 11(d) of the Charter.

In response to this, Parliament passed a Bill enacting s. 33.1 of the Criminal Code –

33.1 (1) It is not a defence to an offence referred to in subsection (3) that the accused, by reason of self-induced intoxication, lacked the general intent or the voluntariness required to commit the offence, where the accused departed markedly from the standard of care as described in subsection (2).

(2) For the purposes of this section, a person departs markedly from the standard of reasonable care generally recognized in Canadian society and is thereby 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.

(3) This section applies in respect of an offence under this Act or any other Act of Parliament that includes as an element an assault or any other interference or threat of interference by a person with the bodily integrity of another person.

The effect of this Bill was to remove this defence in cases of general intent offences involving an assault or any other interference with the bodily integrity of another person.

In McCaw, Mr. Eric Neubauer (counsel for the defendant, Mr. Cameron McCaw) argued that the effect of s. 33.1 was to allow a conviction in circumstances where a court may have a reasonable doubt as to an essential element of the offence, or as to voluntariness, or both. He submitted that the provision infringes both s. 7 and s. 11(d) of the Charter and cannot be saved by s. 1 of the Charter.

Through an analysis of previous cases and constitutional case law, Spies J. concluded that not only was s. 33.1 invalid as it infringes both s. 7 and s. 11(d) of the Charter and cannot be saved by s. 1 of the Charter, but also, it was already declared invalid by Wallace J in R. v. Dunn, [1999] O.J. No. 5452 (S.C.). Spies J. delves into a lengthy and deep analysis of stare decis and judicial comity (which is not explored in this article) before concluding that she is bound by Wallace J.’s finding.

In reaching this conclusion, Spies J. cites Smith J. in R. v. Sarmales, where the very same issue was decided. Smith J. clearly held that: “the Crown is bound by a declaration made by a Superior Court judge, with inherent jurisdiction, that a section of the Criminal Code is unconstitutional, is of no force and effect, and is effectively removed from the statue books”. He continued to state that once such a declaration is made the “offending section ceases to exist and is of no force and effect. This ruling is binding on the Crown and can only be altered on appeal”.

At paragraphs 76 and 77, Spies J. makes the bold finding that Superior Court judgements are binding (not just persuasive) on other Superior Court judges:

[76] In my view, the weight of these four authorities supports the position taken by the applicant. If a judge of this Court finds that a provision of a statue is unconstitutional, by virtue of s. 52 of the Constitution Act and Ferguson, that provision is invalid for all future cases – it is “off the books.” Coming to this conclusion does not require a consideration of judicial comity. In my view, the question of judicial comity has no relevance to the issue before me.

[77] Accordingly, it follows that if a judge of this Court has already declared s. 33.1 of the Criminal Code as unconstitutional then s. 33.1 has effectively been removed from the Criminal Code and I am bound by that decision. If the applicant’s interpretation of Dunn is correct, then by virtue of that decision, as of its release in 1999, s. 33.1 of the Criminal Code was of no force and effect in the province of Ontario, and that remains the case unless and until that decision is overturned, or I suppose my decision to find that I am bound by Dunn is overturned by a higher court.

Following this, Spies J. turns to the alternative and asks whether s. 33.1 of the Criminal Code be declared invalid and of no force and effect, pursuant to s. 52(1) of the Constitution Act (regardless of the finding in Dunn and the question of whether it is binding or persuasive).

In response, the Crown submits that the objectives of s. 33.1 are society’s concern for protecting vulnerable persons, particularly women and children, from violent intoxicated offenders and holding perpetrators of intoxicated violence accountable for their actions. In contrast, Mr. Neubauer submits that s. 33.1, properly interpreted, has a very narrow objective, which it seeks to achieve at too great a cost.

Spies J. considers these two viewpoints at paras 118 and 121:

[118] In my view, a determination of this issue largely depends on what the purpose of s. 33.1 of the Criminal Code was when it was enacted. As already stated, the cases that have upheld s. 33.1 have found that the purpose of the section is generally as stated in the Preamble, which essentially is to protect vulnerable persons from violence committed by intoxicated offenders and ensure they are held personally responsible for their actions. It is difficult to argue with the constitutionality of the provision if it was truly passed in order to protect the rights of women and children to security of the person and to address the alleged “close association between violence and intoxication” and the argument “that self-induced intoxication may be used socially and legally to excuse violence, particularly violence against women and children”.

[…] [121] The cases that have found s. 33.1 unconstitutional have found that its true objective was the reversal of Daviault and the elimination of a defence of self-induced extreme intoxication akin to automatism.

She concludes stating, at para 129:

[129] In this regard I agree with the observations of Justice Wallace in Dunn at paras. 30-22 that the Preamble overstates the objective of the provision. I agree, as she found and as found by Vertes J. in Brenton at para. 102 that the real purpose of the enactment of s. 33.1 of the Criminal Code was to remove the narrow defence allowed in Daviault. That defence would only apply in rare cases and be successful in even fewer cases. As made clear by the studies reviewed by Justice Cory, it would not have any real impact on cases involving violence against women and children.

Following this s. 1 analysis she reaffirms that s. 33.1 should be declared invalid in Ontario further to s. 52 because it offends ss. 7 and 11(d) of the Charter and is not saved by operation of s. 1 of the Charter.

The McCaw decision was a resounding victory for the supremacy of the Charter in our law and its role in protecting the rights of Canadians.  There is no question that the protection of the public is a valid legislative purpose.  But, as decided by Spies J., a law passed with the implicit goal of removing a legally and logically justifiable defence, is not.

At the heart of the McCaw decision is the principle that a person is not morally culpable for doing something unknowingly or unintentionally.  It may be cold comfort to the victim of a violent crime that their assailant was not morally culpable due to extreme intoxication, but it is an essential consideration for our society in how we deal with such perpetrators.

The disconnect between the moral culpability of knowingly getting drunk versus knowingly committing sexual assault is too great:  we cannot and should not conflate the two.  It is unjust and does not serve our society to denounce or punish these two behaviours equally.  Yet this was the practical effect of s. 33.1 for a very small number of accused persons.  Nor is it just to discount the actual involuntariness of a criminal act simply because the involuntariness arose from consumption of drugs or alcohol, as opposed to some other internal or external force.

Furthermore, it is not a realistic deterrent to allow extreme self-inebriation to satisfy the mental element of whatever violent offence the accused may unknowingly commit while intoxicated.  We would not and could not expect Canadians (especially those with substance-abuse issues) to abstain from consuming alcohol or drugs – even in excess – with the threat that every time they get very drunk or stoned, they have in fact proactively satisfied half of the essential element of some serious but unforeseeable violent crime.

The justice in McCaw decision is, of course, that it only allows for the availability of the extreme intoxication defence.  It does not suggest that an accused can or should be allowed to retroactively excuse true offences with a contrived claim of extreme intoxication.  It is a defence that will be utilized sparingly and that will absolve accused persons of criminal liability in only the rarest of circumstances.  But, if a judge or jury finds that a person truly committed a violent act only as a virtual automaton – without the requisite intent or apparent ability to control their behaviour – they will not be held liable on par with a person who acted with full knowledge and appreciation for what they were doing.  This is just as it should be.