R. v. Sullivan: The End of s. 33.1 in Ontario

A Criminal Code provision that has been on the books for 25 years is unconstitutional.

The Ontario Court of Appeal this week released a monumental decision, declaring that s. 33.1 of the Criminal Code of Canada is unconstitutional and therefore of no force or effect.  That case is R. v. Sullivan, 2020 ONCA 333.

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.

According to the Ontario Court of Appeal, that law contravened “virtually all the criminal law principles that the law relies upon to protect the morally innocent, including the venerable presumption of innocence”.

After 25 years, it is no longer in effect in this province.

The general question has long been an issue in Canadian law: to what extent should we hold persons criminally responsible when they committed a crime due to self-intoxication?

A timeline:

1978:   Leary v. The Queen, [1978] 1 S.C.R. 29

The Supreme Court of Canada prohibited accused persons from raising self-induced intoxication in cases of general intent.  While some offences require a more complex level of intentionality, for many offences, the court will presume a person intends the direct consequences of their actions.

For example, if I pull back and punch another person in the face, the court can presume that I intended to touch him without his consent.  That is all that is required to prove that I had the mental element to commit the assault.

So, while a person could say they got themselves too drunk to form the specific intent to kill somebody, for example, they could not claim they got themselves too drunk to form the general intent to hit that person.

1994:   R. v. Daviault, [1994] 3 S.C.R. 63

The Supreme Court created an exception to that rule.  For persons who were not merely drunk, but extremely intoxicated, the defence would be made available.   If a person was so intoxicated that they were absent awareness – akin to an “automaton” – they would then lack the necessary fault to be found criminally guilty.

If a person is so intoxicated their actions are involuntary, or if they are so intoxicated they are incapable of having the requisite mental element to know what they are physically doing, they cannot be guilty.

These are fundamental Charter-protected principles.  Daviault essentially says that these principles hold true even if accused got to that level of intoxication through his own voluntary consumption.

1995:   Section 33.1

The public did not like the implications of Daviault.  So Parliament acted.  They imposed a law which stood on the books for 25 years, until this week.

That law essentially undid Daviault for any offence of violence.

The law states:

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.

In plain terms: if a person causes their own intoxication and commits a violent offence, they cannot claim that they were too intoxicated to be found guilty of even general intent offences such as assault and sexual assault.  Even if they are intoxicated to the point of automotonism.  Even if their acts were involuntary and even if they lacked the mental state with respect to the violent offence.

The facts in both the Chan and Sullivan cases are tragic. They do not require and intimate understanding because the effect of this Court of Appeal decision is to strike down s. 33.1 for all future cases.  That is to say, this decision does not only affect future cases with a similar factual underpinning: the Code section is now null and void for all purposes in Ontario.

That said, the most basic facts are this:

• Chan voluntarily consumed magic mushrooms. He had a very bad trip.  He believed he was a deity.  He believed his father was a devil, and he stabbed him.  His father succumbed to his injures.
• Sullivan over-consumed prescription medication in an attempt to take his own life. The suicide attempt failed, but the medication left him in a state of extreme psychosis.  He believed he had captured an alien and in the throes of this psychotic episode, he stabbed his mother who was in the home with him at the time.

The men were both found guilty of violent offences because s. 33.1 precluded an argument that they were automatons at the time, due to their self-intoxication.

The Ontario Court of Appeal declared that s. 33.1 violated 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)).  A law is stricken if it violates the Charter and cannot be “saved” under s. 1 of the Charter.  Essentially, no Charter right is sacrosanct and so if the government can justify why a law is necessary even if steps on the toes of a Charter right, the law remains valid.

The prima facie breaches of sections 7 and 11(d) are set out under three categories: “the voluntariness breach”, the “improper substitution breach”, and the “mens rea breach”.

1.‘The Voluntariness Breach’

33.1 violates both s. 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 puts it plainly: “The principles of fundamental justice require that voluntariness is an element of every criminal offence. It is therefore contrary to the principle of fundamental justice … to remove the voluntariness element from an offence.”

The Crown tried to argue that the required voluntariness still exists in the voluntary consumption of an intoxicating substance.  The court flatly rejects this argument.  The existing law is clear that voluntariness must attach to the offence charged.  Not some other action.  Unless drinking alcohol is an offence, that voluntary act cannot be the voluntary act on which a conviction rests.

If the act is not voluntary, the very actus reus is not satisfied.

The law violates s. 7 because a person can be imprisoned for an action they did not do voluntarily.  Similarly, the law violates s. 11(d) because it allows a person to be found guilty even when judge or jury has reasonable doubt about whether or not the act was voluntary.

2.“The Improper Substitution Breach”

33.1 breaches s. 11(d) of the Charter because it allows a person to be found guilty of an offence for which the essential elements are not proven.

This is an interesting and important point that strikes on an idea that permeates the logic behind this entire decision.

Every offence requires proof of the actus reus and the mens rea.  Each offence has specific elements to prove both the act and the mental element.  Essentially, s. 33.1 allows a person to be found guilty of an offence (e.g. manslaughter or sexual assault) even when neither the actus reus nor the mens rea of those offences have been proven.

The government attempted to replace the actus reus and mens rea requirements of violent offences with proof of an “act” and “mental state” of a benign, non-criminal action: consuming alcohol or ingesting drugs.

3.“The Mens Rea Breach”

33.1 breaches s. 7 of the Charter because people can be imprisoned for an act even when they did not have the lowest level of legal fault that exists in criminal law.

The lowest level of criminal fault that exists in our law is penal negligence.  That level of fault does not require intentionality.  In other words, there are offences for which a person does not need to desire and intend the outcome of their actions in order to be held criminally responsible.  If your intentional behaviour is so poor that it departs markedly from what a person would normally do, you can be held criminally responsible for the consequences of your behaviour, even if you did not personally see that outcome was coming.

For example, think of dangerous driving causing death: you do not need to intend to kill a person or even strike them with your car to be guilty of that offence.  You do not even need to personally realize that outcome was likely to ensue.  But because your purposeful action of driving like a maniac so substantially deviates from what a reasonable person would do, that satisfies the mens rea component of the offence.  A reasonable person would have realized that driving that way could hurt somebody, and you were way off that mark of normalcy.  You are guilty based on the objective foreseeability of the consequences of your actions.

But the fault level 33.1 imposes does not meet even that minimal level of fault.

Firstly, it creates scenarios where a person can be found guilty without any link to foreseeability.  To be found guilty as Chan and Sullivan were, you only need to (a) become intoxicated by your own consumption, (b) interfere with the bodily integrity of another person.  Nowhere in the behaviour for which you can be found guilty of manslaughter does the law require any level of subjective or objective foresight of the consequences.  No link at all is required between the voluntary act of consumption and the involuntary act of violence.  No matter how unintentional and unforeseeable the violence was, a person can be found guilty of a violent offence for doing something legal and non-violent (e.g. consuming alcohol).

Secondly, even if there was some link (which there is not), the horrible violence that results from automatism cannot be said to be a foreseeable consequence of self-intoxication.  Nobody can reasonably suggest that a reasonable person would foresee that consuming alcohol or mushrooms or too much prescription medication is likely to lead to the involuntary murder of a parent.  In fact, it is patently unlikely.

Thirdly, the law requires a purposeful act be a marked departure from the standard of care if the mens rea is to be satisfied on an objective standard.  That is: if we are going to find somebody guilty for something they did not personally intend or even foresee, the (ostensibly non-criminal) behaviour they did knowingly engage in must be a “marked departure” from the reasonable standard.  Getting very intoxicated in one’s own home, for example, likely does not reach that standard.  But note that S. 33.1 does not even require a person purposefully get so intoxicated that they reach a level of automatism.  The section captures people who meant to get a little intoxicated, but then experience abnormal effects.  (Like Mr. Chan).  Nevermind a person who did not intend to get intoxicated at all like Mr. Sullivan.  Plainly put, wanting to get a little high off mushrooms, or a little tipsy from alcohol, cannot conceivably be considered a “marked departure” from reasonable behaviour.

Finally, the court points out that the moral fault with even an intention to become extremely intoxicated is not normatively equivalent to the moral blameworthiness of manslaughter or sexual assault.  And clearly, it is the purposeful act of self-intoxication that is being judged so harshly.

Parliament uses language to internally define the act of violence itself as a ‘marked departure’.  But this misses the point.  The assault itself may be fairly considered a ‘marked departure’ from reasonable behaviour.  But doing something that is a marked departure from the norm cannot ground an offence on its own.  As the court states “moral fault cannot come from consequence alone”.  The action which departs markedly from the standard of care must be the act knowingly undertaken … in this case, that would to be self-intoxication.  Consuming the intoxicant is the act that would need to “markedly depart” for the mens rea to be made out (which it does not).  Because that is the act that was purposefully done.   Then the consequent actus reus can be linked to the purposeful act.  The assault itself is not the act that is judged for “marked departure” because that act was not purposeful or foreseeable.  If the actus reus for the violent assault was, by definition, sufficient to satisfy the mens rea, that would be an absolute liability offence. Which would most certainly violate s. 7.

Section 33.1 prima facie violates the Charter.  That was the easy part.

The law holds that even if a law violates some Charter right or rights, it can – in some circumstances – be justified by the Crown and upheld despite the violation(s).

The Oakes Test requires the Crown to establish:

1. A Pressing and Substantial Purpose for the measure
2. Proportionality between the law imposed and the objective sought.

(a)       Properly Defining Parliament’s Purpose

The overriding problem the Court of Appeal found (which is where it departs from some previous lower-court decisions which upheld s. 33.1) is in how the purpose of the legislation is defined.

Most basically put, the Crown overstates the purpose of the legislation.  They – as Parliament does in the preamble to the legislation – define the purpose too broadly.

Parliament and the Crown hold out the purposes to be:

• “Accountability”: To hold self-intoxicated assailants accountable for their actions, and;
• “Protection”: To protect victims from self-intoxicated assailants.

But the targets of s. 33.1 are not actually that broad.  Intoxicated assailants include offenders who loosen their inhibitions or scruples and then hurt people.  S. 33.1 does not address those because they need no addressing: no leeway was given to those offenders as it was, prior to the legislation.  The legislation addresses specifically people who are not merely intoxicated, but automatons.

And so, the Ontario Court of Appeal properly defines the actual objectives as:

• “Accountability”: To hold assailants SELF-INTOXICATED TO THE POINT OF AUTOMATISM accountable for their actions, and;
• “Protection”: To protect victims from assailants SELF-INTOXICATED TO THE POINT OF AUTOMATISM.

It is appropriate for the Court to re-define the true purpose and not take Parliament’s stated purpose at face value.  Because it is critical to applying the Oakes test.  The infringed Charter right must be measured against the purpose of the infringing law.  Nothing more general; nothing more laudable or urgent.  Parliament’s misstatement of their purpose skews the importance of the ill that needs addressing.  As the court puts it: “if the objective is stated too broadly, its importance may be exaggerated, and the entire s. 1 analysis compromised”

To illustrate: the rights of accused such as Mr. Chan and Mr. Sullivan may pale in comparison to the bogeyman Parliament presents: the person who has a few drinks and then has free reign to rape and kill.  The real test needs to be the rights of the Chans and Sullivans in our society versus the goal truly being addressed: to hold self-intoxicated automatons accountable and protect victims from self-intoxicated automatons.

(b)       “Pressing and Substantial”

So there are two legislative purposes: “protection” and “accountability”.  One is pressing and substantial, but the other is not.

i. The “protection purpose” is pressing and substantial.

It is fair enough that Parliament wants to protect victims from those specific acts of violence.   Despite its infrequency, the level of damage addressed qualifies the need to protect potential victims as pressing and substantial.

ii. The “accountability purpose” is NOT pressing and substantial.

The reason the measure is prima facie unconstitutional is that seeks to hold people accountable when core Charter principles hold those people should not be accountable.

Parliament is not presenting a ‘competing’ value to the Charter value.  It is outright rejecting the Charter value.  It is circular logic for Parliament to say it must, regrettably, infringe on the Charter principle that people can only be held accountable if mens rea and actus reus are proven … it must, because it is very important to Parliament that people be held accountable despite mens rea and actus reus not being proven.

As the court states: “A purpose cannot at once be unconstitutional and a pressing and substantial reason for overriding constitutional rights”

(c)        Proportionality

For a law to be proportionate to the objective sought, it must have a rational connection, it must minimally impair, and the benefits of the law must be overall proportionate to its harmful effects.

The “accountability purpose” was already dismissed as inappropriate, as the purpose is itself to undermine Charter rights.

The “protective purpose” is here dismissed as have no rational connection to the law being imposed.

The idea behind protection can only be “deterrence”.  But the court is not at all convinced that a person would ever actually be deterred from having a drink on the minute off-chance that it would lead him or her to automatons and then further lead him or her to violence.

Drinking lowers inhibitions.  In the vast majority of cases, violence arising from that is no defence.  If that does not deter people from drinking, why would we expect a bar on the defence associated with the much less common automaton level of intoxication to affect the behaviour for a prospective drinker or drug user?

The court goes on to also find that s. 33.1 is not minimally impairing.  It was not tailored to minimally impair Charter rights and the objectives could have been equally addressed by other means, including just leaving the law as it was.

In sum, the court finds that s. 33.1 lacks overall proportionality.  This should be the obvious conclusion based on the court’s reasoning up to this point.  In the court’s view, there are no real valid benefits to the law based on its stated objectives.  The harm of the law, however, is massive.  As the court states:

“Put simply, the deleterious effects of s. 33.1 include the contravention of virtually all the criminal law principles that the law relies upon to protect the morally innocent, including the venerable presumption of innocence.”

The court summarized the reasoning behind its decision as succinctly as one could hope for, stating quite correctly:

“With very little true gain, Parliament has attempted to cast aside the bedrock of moral fault.”