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.