The Defence of Extreme Intoxication, Simplified. The Case of Sullivan

The Ontario Court of Appeal recently struck down a law that prohibited an extreme self-intoxication defence for certain criminal offences.

The decision appears to be terribly misunderstood by the public and even the media.  It is something of a complex topic, but much less so if one reads beyond the headlines and attempts to understand the substance of the judgment and the reasoning behind it.

What was the decision?

  • People who are so intoxicated that they do not know what they are doing are not guilty because they do not know they are doing anything wrong.
  • There was an exception:
    • people who got themselves intoxicated and then committed violent crimes could be found guilty even if they didn’t know what they were doing when they did it.
  • Now, the Courts say: no.
  • Those exceptions are not constitutional … nobody can be guilty if they don’t know what they’re doing.

So, is intoxication a defence for sexual assault now?

  • It never was.  It never will be.
  • The level of intoxication you need to be for this defence to apply is so, so, so extremely rare. It is not about being drunk or “blacking out”: it is more like being a zombie. You would need a scientist to come to court to convince the judge you were at this state of mind.
  • Most likely the government will have a different scientist saying “no, he wasn’t!”.
  • There’s evidence that alcohol alone can’t even physically possibly get you to that level of intoxication where you could commit a crime and not know it.
  • In other words, it is likely that this defence will – in practice – never apply to alcohol cases.
  • It would be so extremely rare for somebody being able to commission a sexual assault while in a state that far-gone.
  • Rare, like: it may not happen a single time in Canada in your lifetime.
consent intoxication defence sexual assault sullivan chan

Why did the Court strike down the law?

Very, very basically …

  1. Because if you did not consciously do anything wrong, it would be unconstitutional to put you in jail for it.
  2. We obviously want to protect victims of crime from violence …. But the law didn’t actually protect anybody!
  3. The crimes are committed unknowingly and unintentionally!   he law can’t “discourage” people from doing things they don’t have the capacity to realize they’re doing.
  4. If the law could actually prevent the crimes, that would be one thing.  But it doesn’t.  It serves no purpose.

Those are the bare-bones basics.

Now, let’s look a little more closely at what the decision actually was …


This article will attempt to explain the recent decision in R. v. Sullivan, 2020 ONCA 333 in the plainest language possible.

It does not capture the nuance of the decision.  It does not engage with every issue or every argument.  It oversimplifies in some parts.   The quotations used are meant to illuminate, not directly quote the decision or the arguments.

For a more fulsome summary, please see this corollary article:

Or better yet, read the actual decision.  It is excellently written and is much more accessible than you may think.  It can be found here.

Sullivan extreme intoxication defence sexual assault

Some basics

The Ontario Court of Appeal recently struck down a law that was unconstitutional.

Parliament makes the laws.  Those laws remain in effect unless they violate the highest law: the Constitution.  Which includes the Charter of Rights and Freedoms.   Courts decide whether a law in constitutional or not.  It is what protects us from the government of the day doing whatever they want.

To be guilty of a criminal offence in Canada, two things need to be proven:

(1) you did the act, and

(2) you had the mental element necessary for the act to be blameworthy.

For #2, the “mental element”, it is different for different offences.  But some level of moral fault is required: we do not punish people who do not even realize they are doing the bad thing.  (Not that they need to know the thing is bad … but that they are doing the thing at all)

Remember these two elements of a crime: “the act” and “the mental element”.

Intoxication as a Defence

It is not and has never been a defence to say “I was drunk when I committed an assault or sexual assault”.  To commit those crimes, you basically only have to know that you are touching the person without their consent (or maybe even just be negligent about whether your actions will lead to them being touched).

Being drunk to the point that your judgment was impaired, or your inhibitions lost is not ever a defence.  Not before this latest change, and not now.

However, it can be a different story if you are so intoxicated that you don’t even know what you are doing, or your physical actions are involuntary.  This is called being an “automaton”.  Think about it like sleepwalking, or have an extreme psychotic episode. The person does not know what they are doing.

It is extremely rare to be in that sort of state.  This is not a common defence.  This is not merely saying “I was too drunk to remember committing the crime”.  This is something much more rare.  It has to do with not understanding what was happening in reality at the time.

And that is what is important to understand.  Because if at the time you are not acting voluntarily, we would not say you are committing the act.  If at the time you do not have the mental capacity to understand what you are doing, we would not say “you should have acted lawfully” and hold you morally blameworthy.

That was the law as it stood in 1994.  The Supreme Court of Canada decided that if you are that divorced from reality, we cannot say you are legally guilty and should go to jail for the thing you did.  Which makes sense: you did not realize what you were doing.

Section 33.1 of the Criminal Code

That law essentially never changed.  The Charter of Rights and Freedoms does not allow the government to find people guilty and put them in jail unless they committed a crime with those two elements: “the act” and “the mental element”.

Therefore, you are not guilty if the crime was committed while you were an automaton.  

EXCEPT in 1995 Parliament passed a law that created a discreet exception to that principle.  Section 33.1 of the Criminal Code.  The exception is: even automatons are guilty of their crimes if:

(i)         They were intoxicated at the time of the offence

  • The intoxication was self-induced.
  • The crime committed was violent (interfered with somebody’s bodily integrity or threatened to do so.)

So, the critical question is: what makes those exceptions so special?  Anything?  It was already decided in 1994 that the Charter does not allow us to put people in jail for things they did while automatons.  Is there something different about the automatons listed in s. 33.1 that makes putting them in jail constitutional?

The answer this week from the Ontario Court of Appeal is … no.

Those sorts of automatons are not so different that we can find them guilty but not other automatons.  There is no good reason for s. 33.1 to single out those specific automatons.

The Examples of Mr. Chan and Mr. Sullivan

Two events provide good examples of the sorts of cases that s. 33.1 unfairly targets.

They are the examples that brought the question “is s. 33.1 actually constitutional?” to the Court of Appeal this year.

Both examples are tragic.

Mr. Chan:

Mr. Chan took magic mushrooms recreationally.  Unfortunately (maybe because of an underlying head injury), he went into a state of psychosis.  He thought he was god.  He thought people around him were the devil.  In that state of absolute non-reality, he stabbed a person he thought was a “devil”, who happened to be somebody he loved: his own father.  The father died.

Mr. Sullivan:

Mr. Sullivan was not even trying to get high at all.  He was trying to overdose on prescription medication to take his own life.  The suicide attempt failed, but the overdose caused him to go into a state of psychosis.  He thought he captured an alien in his home and in that state of psychosis, stabbed his own mother who was in the home.

Now without s. 33.1, both men could try to prove they were automatons.  They could try to convince a judge or jury that they were acting involuntarily and without the guilty “mental element”.

They might have succeeded, they might have failed.   It is very difficult to prove you were an automaton.  You can’t just say so.  You have to call a legal expert.  You have to prove it.  You have to convince a judge.

But they weren’t even allowed to try.  Why?  Because of Section 33.1.  Because their psychosis happened to be caused by self-intoxication.

The Ontario Court of Appeal decided that is not constitutional.  If there is no voluntary “act” and no requisite “mental element”, the government cannot punish you for the commission of a criminal offence.  At least not under Section 33.1 as it is written.

Why s. 33.1 Breaches the Charter of Rights and Freedoms

Let’s discuss why it breaches the Charter.  Briefly.

As we discussed, automatons, generally, cannot constitutionally be found guilty because:

#1: their actions are not voluntary (remember: like sleepwalking), so they did not “commit” the act.

#2: they don’t realize what they are doing, so don’t have the mental element that makes them blameworthy.

So to put them in jail would be unconstitutional. 

But what about Self-Intoxicated people?  Some may say “but it is different for people who got themselves to that state by drinking or taking drugs … that is why s. 33.1 is fair”.

The government tried to argue that.  The court disagreed.

The government tried to say (and these are not actual “quotes”):

“Fine, maybe Mr. Chan and Mr. Sullivan did not voluntarily or knowingly stab their parents … but they did voluntary and knowingly ingest drugs.  And that is where you get the voluntary act and mental element that the Charter requires.”

The court said, no:

“#1:     You can’t turn ‘guilty of drinking (or taking drugs)’ into ‘guilty of stabbing’”

“#2:     The voluntary act must be the act that is illegal.  You can’t say voluntarily drinking is the same as voluntarily stabbing”.

“#3:     The mental element must also attach to the crime.  Okay, fine, sometimes you don’t have to intend the harm you create to be guilty … sometimes we say ‘you should have foreseen was going to happen’ based on your dumb voluntary decision.  But no reasonable person would foresee that taking mushrooms or drinking would lead to becoming an automaton and then stabbing a loved one.  Because it basically never does.”

The Charter protects the rights to liberty (s. 7) and the presumption of innocence (s. 11(d)).  Section 33.1 offends both.

Essentially, for all the reasons automatons generally cannot be put in jail for things they did, neither can these “special automatons” that 33.1 tries to single out.  The Charter prohibits it.

OK, so s. 33.1 breaches the Charter.  That was the easy part.

Believe it or not, basically everybody agreed since 1995 that s. 33.1 violated the Charter.  The question was:  is it a justifiable law even though it violates the Charter?

Isn’t Protecting Victims and Holding People Accountable Important?

Section 1 of the Charter allows the government to pass laws that breach our Rights and Freedoms… if they can justify it.

Think of it as “The Section 1 Override”.

Lower courts could not agree whether s. 33.1 – breaching our Charter rights as it does – is nonetheless justifiable.  Some said yes, some said no.

Now the Court of Appeal has settled it:  Section 33.1 cannot be justified.  There is no good reason to breach our Rights and Freedoms, so Section 33.1 cannot stand.

The test for the “Section 1 Override” basically asks this:

  • What is the purpose of the law Parliament passed?
  • Is that purpose important?
  • Does the law they chose to pass fix the problem in our society?
  • And if it does, is it proportionate to the harm the law causes to our rights?

Section 33.1 has two purposes:

#1:  To protect victims from violent acts committed by self-intoxicated automatons.

#2:  To hold self-intoxicated automatons accountable for the violence that they cause

Neither purpose justifies the law.  Let’s look at each in turn.

#1:       “Protection”

The Court of Appeal agrees that this is a laudable goal.  It is an important goal.

The problem, though, is that the law (s. 33.1) does nothing to achieve its goal.

Theoretically, the idea is that victims can be protected if we can pass a law that prevents the crime from being committed in the first place.

Most criminal laws achieve this to some degree:  if you steal, we will put you in jail … do not steal.  And many people, scared of jail, won’t steal.   If you assault or sexually assault somebody, we will put you in jail.  And many people scared of jail won’t assault or sexually assault anyone.

But that doesn’t work here.  What effect is s. 33.1 to stop people from being hurt?  None, because the act of violence cannot be deterred: it is involuntary and unintended.

And realistically, section 33.1 was not stopping anybody in the world from drinking or taking drugs.

Don’t forget, s. 33.1 does not only prohibit the defence for people who purposely got extremely intoxicated.  It captured people like Mr. Sullivan who did not want to get intoxicated at all.

Self-intoxicated automatism is so rare.  As it is, 99.9% of violence caused by intoxication carries with it no legal protection.  That does not stop people from becoming intoxicated.  The prospect that the s. 33.1 prohibition on the automatism defence was stopping anybody from using drugs or alcohol is so remote … it certainly does not justify an unconstitutional law.

For anybody who disagrees and feels that s. 33.1 imposed a significant deterrent that is now missing:  I presume you have not been drinking or taking any recreational drugs since 1995, for fear that your ensuing automatism and crime spree would have no viable legal defence.  And that now the lid is off, you are free to imbibe without concern for your legal prospects.

#2:        “Accountability”

The Court of Appeal dismisses this one pretty easily.  Parliament’s stated purpose of “accountability” is essentially to undermine the Charter right itself.  That is not a legitimate purpose.

To explain:  Section 1 balances two things: The Charter breach vs. Parliament’s competing interest.

What is s. 33.1’s Charter breach? 

That it holds Canadians criminally accountable even when they did not voluntarily commit the act or have the mental state.  That violates the Charter.

            What is Parliament’s Competing Interest?

That it really wants to hold those people accountable regardless.  Come, on please can it hold those people accountable?

The purpose, that is, is to hold accountable people that the Charter specifically maintains are not accountable.

The Court of Appeal properly points out … this is not a competing interest.  It is a desire to do something that directly contradicts the Charter.  The Charter is the highest law in the land and it takes precedence.


The practical effects of this Court of Appeal decision on the lives of Canadians is extremely small.  The defence it once again allows is very difficult to prove and almost never applies.

Nobody is going to use the existence of this defence to commit crimes.  It is hard to imagine a person being able to purposely get themselves to that level of intoxication even if they tried.  And if they did get to that level, they are not capable of then carrying out intentional actions.  That is the point.

It is tempting to want to take action when something tragic happens like that which happened with Mr. Sullivan, Mr. Chan and their families.  But every law must serve a useful purpose.  No useful purpose is served by imprisoning a person who did not do anything that is morally blameworthy.   It may somehow on some level make us feel safer without actually making us safer.

Let us close with the words of Justice Paciocco of the Court of Appeal himself:

“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

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