R v Sullivan: SCC will hear constitutional challenge on the prohibition of the extreme intoxication defence
In December, the Supreme Court of Canada (“SCC” or “The Court”) granted the Crown leave to appeal the Ontario Court of Appeal’s (“ONCA”) ruling in R v Sullivan, 2020 ONCA 333 [Sullivan]. In this jointly-heard case, the ONCA ruled that s. 33.1 of the Criminal Code, RSC, 1985 c C-46 [the Code]—which prohibits self-induced intoxication to the point of automatism to be used as a defence in the commission of an assault or other violent offence—is unconstitutional under ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms [the Charter] and cannot be saved under s. 1. The two accused, Thomas Chan and David Sullivan, were both under the influence of drugs to the point that they fell into a psychotic episode when they grievously injured and, in Mr. Chan’s case, killed members of their family.
The SCC’s ruling in Sullivan will undoubtedly have significant effects on the status of the intoxication defence in Canadian criminal law for offences such as murder and assault.
Mr. Chan, a high school student at the time of the offence, was in his mother’s basement with friends when he took a dose of magic mushrooms, a psychedelic drug. Mr. Chan had previously used the drug, and on this occasion, did not feel high after his first dose, and subsequently consumed an additional one. Shortly after taking the additional dose, Mr. Chan became delirious and incoherent and subsequently broke into his father’s house, where he fatally stabbed his father and grievously injured his father’s partner. He had always had a positive relationship with his father. Mr. Chan was ultimately charged with murder, attempted murder, and aggravated assault (R v Chan, 2018 ONSC 7158, para 3 [Chan I]).
Mr. Sullivan had been prescribed a drug called Wellbutrin to help him quit smoking. The drug was known to cause psychosis as a side effect, which Mr. Sullivan had been experiencing leading up to the offence. In December 2013, Mr. Sullivan attempted to take his own life by taking 30–80 tablets of the drug, but he fell into a psychotic episode, culminating in stabbing, but not killing, his mother. He was charged with aggravated assault and assault with a weapon (R v Sullivan,  OJ No 6847, para 2 [Sullivan ONSC]).
At trial, both Mr. Chan and Mr. Sullivan claimed they were in an automatistic state at the time of their offences. The SCC has defined “automatism” as “a state of impaired consciousness…in which an individual, though capable of action, has no voluntary control over that action” (R v Stone,  2 SCR 290, para 156). The defence of automatism is broken into two separate branches: mental disorder automatism and non-mental disorder automatism, with the former captured under s. 16 of the Code, and the latter in the common law.
At their respective trials, both accused argued the defence of non-mental disorder automatism. However, pursuant to s. 33.1(1) of the Code, they were barred from relying on the defence as they were voluntarily intoxicated and committed violent, general intent offences. Section 33.1(2) provides:
… 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.
Mr. Chan argued that s. 33.1 of the Code violated ss. 7 and 11(d) of the Charter (R v Chan, 2018 ONSC 3849 [Chan II]). The trial judge found that insofar as the provision “substitutes the intent to become voluntarily intoxicated for the general intent to commit an assault and the voluntariness of committing the actus reus of an assault” (Chan II, para 72), it violated not only the presumption of innocence as protected under s. 11(d), but also Mr. Chan’s liberty interests protected under s. 7 and was not in accordance with the principles of fundamental justice. However, the trial judge found that these infringements were justified under s. 1 of the Charter, particularly on the grounds that the provision was minimally impairing and proportionally balanced between its salutary and deleterious effects. Mr. Chan was convicted of manslaughter and aggravated assault.
Mr. Sullivan did not raise the constitutional argument at his trial. However, he did argue that s. 33.1 did not apply to his case since his intoxication was involuntary as he had attempted to take his own life (Sullivan, para 172). The trial judge rejected this position on the basis that Mr. Sullivan had a poor memory and was inconsistent in his testimony and ultimately determined that the accused’s overdose of the drug was voluntary (Sullivan ONSC, para 83). Mr. Sullivan was convicted of aggravated assault and assault with a weapon.
Both Mr. Chan and Mr. Sullivan appealed their convictions, which were jointly heard by the ONCA. The common challenge to their appeals rested on the constitutional validity of s. 33.1 and whether the provision “deprived them of access to the non-mental disorder automatism defence” (Sullivan, para 10). While Mr. Sullivan only raised the constitutional question relating to his case on appeal, the Crown conceded that should Mr. Chan’s constitutional challenge be successful, the ruling ought to be applied to Mr. Sullivan’s case as well (Sullivan, para 10).
The ONCA’s majority decision, written by Justice Paciocco, agreed with the trial judge’s finding that s. 33.1 of the Code is a prima facie violation of ss. 7 and 11(d) of the Charter. In his analysis, Justice Paciocco moved through the three Charter breaches of the prohibition on the intoxication defence as identified by the SCC in R v Daviault,  3 SCR 63: the voluntariness breach, the improper substitution breach, and the mens rea breach. These breaches, or principles, as Justice Paciocco noted, “identify what is constitutionally required before a criminal conviction is permitted” (Sullivan, para 61). The majority found that all three of these breaches are contained within s. 33.1 of the Code as the provision (1) removes the voluntariness element from the offences to which it applies; (2) substitutes voluntary intoxication for the requisite elements of the charged offence; and (3) allows for the conviction of individuals who do not possess the necessary moral fault for an offence (Sullivan, paras 64–94).
In his s. 1 analysis, Justice Paciocco found that the Crown had failed to establish that s. 33.1 is proportional to its overall objectives. Interestingly, he reasoned that the provision contained a pressing and substantial purpose insofar as it seeks to protect vulnerable groups, such as women and children, from violence incited by intoxication (Sullivan, para 118). He took issue, however, with the Crown’s proposed purpose of imposing criminal accountability on individuals who voluntarily become intoxicated. Justice Paciocco exposed a critical flaw in this proposed purpose as it simultaneously advocates for accountability of a crime while also criminalizing actions for which accountability cannot be made out. Justice Paciocco stated: “To override principles that deny accountability, for the purpose of imposing accountability, is not a competing reason for infringing core constitutional values. It is instead a rejection of those values” (Sullivan, para 113).
At the proportionality stage of the analysis, Justice Paciocco stressed that the deleterious effects of s. 33.1 were “profound” (Sullivan, para 151). The majority appeared particularly concerned with the provision’s potential to affect those who do not intend to become extremely intoxicated. As Justice Paciocco elucidated, in addition to “enabl[ing] the conviction of individuals for acts they do not will,” s. 33.1 “employs a definition of self-induced intoxication that catches anyone who has consumed an intoxicant, including with restraint or perhaps even for medically-indicated purposes” (Sullivan, para 151).
Ultimately, the majority concluded that s. 33.1 could not be saved under s. 1 of the Charter and declared the provision to be of no force and effect pursuant to s. 52(1) of the Constitution Act, 1982. Mr. Chan and Mr. Sullivan’s convictions were set aside, and a new trial was ordered for Mr. Chan, while Mr. Sullivan was acquitted of his assault charges (Sullivan, paras 162, 188).
Justice Lauwers agreed with the majority in the result but took a different approach to both the ss. 7 and 1 analyses. In particular, he applied the s. 7 analysis articulated by the SCC in Canada (Attorney General) v Bedford, 2013 SCC 72 and Carter v Canada (Attorney General), 2015 SCC 5 to determine that s. 33.1 is overbroad in its lack of “connection between the law’s two objectives, protective and penal, and the law’s effects on [Mr. Chan and Mr. Sullivan]” (Sullivan, para 274). Additionally, he held that the provision is arbitrary since “it punishes those who did not foresee that self-intoxication would lead to acts of violence” (Sullivan, para 216). This same approach guided Justice Lauwers in his s. 1 analysis, in which he held that s. 33.1 is not minimally impairing as it does not carve out an exception for those in situations such as Mr. Chan’s or Mr. Sullivan’s who do not intend their intoxication to lead to such violent consequences (Sullivan, para 275).
The ONCA’s ruling in Sullivan has been a popular topic of public interest and debate in recent months. Following the decision’s release in June, social media became abuzz with commentary and reactions not only from the Ontario bar, but also the media and advocacy groups. Headlines and tweets, claiming the ruling would now allow for intoxication to be used as a defence for sexual assault, soon began to spread. A petition was quickly organized by a member of provincial parliament calling for the Crown to appeal the ruling on this basis, without clear consideration of the fact that neither Mr. Sullivan’s nor Mr. Chan’s case involved sexual assault offences, or the legal complexities surrounding intoxication-induced automatism. Many members of the online legal community attempted to correct some of the misinformation, explaining that the ruling would primarily affect a small number of very rare cases. Nevertheless, whichever way the Court ultimately leans, the SCC would do well to clarify, in plain language, the effect of the intoxication defence on charges of sexual assault.
Beyond the greater public interest concerns in the case, the SCC’s ruling in Sullivan will certainly be noteworthy, as it is the Court’s first opportunity to engage with the constitutionality of s. 33.1 since its addition to the Code in 1995. Declaring a law of no force and effect is a drastic power of the judiciary, and it is yielded with great caution and restraint. However, where an entire panel of an appellate court has deemed a provision to be in violation of the Charter—albeit using different approaches, something the Court will also need to consider in its ruling—and unjustifiable under s. 1, it would be surprising to see a majority of the SCC rule in the opposite direction.
Regardless of whether the SCC upholds or overturns the ONCA’s decision, the Court ought to refrain from re-writing the law from the bench. It should also aim, however, to provide a balanced approach in its reasoning that considers the competing concerns at play in intoxication-related cases, particularly with respect to the safety interests of women and children. Section 33.1, as noted by Justice Paciocco, was created in response to the public’s dismay of the SCC’s decision in Daviault, which, following the ruling, would have allowed the defence of extreme intoxication to apply in charges of sexual assault (Sullivan, para 50). The Court would do well to provide greater consideration to the protective purpose of s. 33.1, and how an alternative provision could continue to or better protect vulnerable groups from intoxication-induced violence.
Similarly, legal scholars have noted that reconsideration of the intoxication defence may create an opportunity for more nuanced attention to the situations in which cases such as Mr. Sullivan’s and Mr. Chan’s arise. Florence Ashley suggests that any exclusions to the intoxication defence should focus on alcohol-induced intoxication since alcohol has been shown to rarely lead to automatism or other psychotic effects and is often the substance of choice for perpetrators of sexual assault. Under this approach, the defence of intoxication would only arise in rare circumstances where drug use leads to devastating and unwilled consequences and where the mental elements for such offences are virtually impossible to establish.
The law surrounding voluntary intoxication is evidently highly complex, requiring nuanced analysis and reasoning from the bench and clear guidance and language from the legislature. Sullivan will certainly be an important case to watch in 2021.