Section 33.1 of the Criminal Code declared “of no force and effect” in R v Brown
In May 2022, the Supreme Court of Canada (the “SCC” or the “Court”) released two important decisions in R v Brown, 2022 SCC 18 [Brown] and its companion case, R v Sullivan, 2022 SCC 19 [Sullivan]. This article discusses Brown. For more information on Sullivan, refer to the case comment here.
In Brown, Justice Nicholas Kasirer, writing for a unanimous bench, allowed Mr. Matthew Brown’s appeal by setting aside the judgment from the Alberta Court of Appeal (“ABCA”) and finding that the defence of extreme self-induced intoxication akin to automatism (“ESIA”) is available for crimes of general intent.
This article will provide a background to the development of s. 33.1. It will then outline facts of the case, judicial history, issues before the Court, analysis, and holding of the case. Finally, this article considers the aftermath of this decision.
Background Development of S. 33.1
In order to understand the legal issues in Brown, one must consider why and how the defence of ESIA was established.
Before 1994, the SCC applied the rationale from Leary v The Queen,  1 SCR 29 [Leary] to cases of self-induced intoxication. It stated that if an accused committed a crime of general intent while being drunk, then the accused’s choice of becoming drunk substituted for their “choice” of committing the crime. This was the “Leary rule”.
In 1994, the SCC re-considered their approach to general intent crimes caused by self-induced intoxication because of R v Daviault,  3 SCR 63 [Daviault]. In that case, Mr. Daviault drank substantial amount of alcohol and sexually assaulted a female acquaintance. Expert evidence indicated the amount of alcohol Mr. Daviault consumed was enough to cause coma or death in an ordinary person. Thus, Mr. Daviault raised a novel defence, at the time, arguing his extreme self-induced intoxication was akin to automatism and therefore that he should not be found criminally responsible for his actions.
The SCC majority held the Leary rule was unconstitutional because it violated a principle of fundamental justice. Under s. 7 of the Canadian Charter of Rights and Freedoms [Charter], criminal responsibility is reserved only for crimes that are committed voluntarily. Based on the facts and evidence, the Court created a common law defence of ESIA, but cautioned this defence will only be raised and succeed in rare cases. In dissent, Sopinka J, argued that the Leary rule does not violate the voluntariness principle and by extension s. 7 of the Charter.
The Court’s judgment in Daviault caused public outcry. The public wondered ‘how can an individual get so drunk that they sexually assault a woman and get away with it’? Parliament echoed the public’s sentiment and wanted to protect victims of intoxicated violence who are usually women and children. In response, Parliament created s. 33.1 of the Code. This provision stops an accused from raising the defence of ESIA for crimes of general intent where the accused intended to commit the guilty act of the crime.
During a party, Mr. Brown consumed alcohol and magic mushrooms, which contain psilocybin. This substance causes hallucinations. After his consumption, Mr. Brown lost touch with reality. He left the party and broke into two homes nearby. At the first home, he attacked the female occupant causing her serious and permanent injuries. At the second home, he caused property damage before the occupants called the police. Mr. Brown was arrested and charged with (i) break and enter; (ii) aggravated assault; and (iii) mischief of property over $5,000, under the Criminal Code, RSC 1985, c C-46 (the “Code”).
At trial, Mr. Brown pleaded not guilty on all counts, arguing the psilocybin caused him to enter an automatistic state. He raised the defence of ESIA and – supported by expert evidence – claimed that although he was capable of physical movement, he did not have control over any of the actions that formed the basis of the charges. In reply, the Crown invoked s. 33.1 of the Code, which makes the defence of ESIA unavailable for general intent crimes including aggravated assault. Mr. Brown argued s. 33.1 violated his fundamental right to life, liberty, and security of the person under s. 7, and the presumption of innocence under s. 11(d) of the Charter.
The trial judge agreed with Mr. Brown. He found that s. 33.1 violates s. 7 because it allows a conviction in the absence of proof of mens rea, an essential element of the offence; and s. 11(d) because it allows a conviction where reasonable doubt about mens rea exists. These violations could not be justified under s. 1 of the Charter. Thus, s. 33.1 was declared unconstitutional and Mr. Brown was acquitted on all charges.
The Crown appealed. The ABCA reversed the trial judge’s decision and found s. 33.1 was constitutional. Thus, the defence of ESIA was unavailable to Mr. Brown and he was convicted on all counts. Mr. Brown appealed to the SCC.
The Court was asked to answer two questions:
- Whether s. 33.1 of the Code violates ss. 7 and 11(d) of the Charter?
- If yes, are these violations justified under s.1 of the Charter?
The Court begins their analysis by conducting statutory interpretation of s. 33.1. Specifically, s. 33.1(2) of the Code states, “…the person, while in a state of self-induced intoxication that renders the person unaware of, or incapable of consciously controlling, their behavior, voluntarily or involuntarily interferes or threatens to interfere with the bodily integrity of another person”.
Here, the Court focused on Parliament’s intention in using the word “while” in s. 33.1(2). The Court found this word sets conditions of liability in this provision. Specifically, the accused must be intoxicated at the material time and this intoxication must be self-induced. Kasirer J infers Parliament did not intend to criminalize the act of consuming alcohol because that is not a crime in Canada. Rather they desired to impose liability for the charged offences.
In the SCC’s view, s. 33.1 of the Code breaches ss. 7 and 11(d) of the Charter in three ways:
I. Voluntariness Breach
The elements of an offence are: the guilty act (actus reus) and a guilty mind (mens rea). If both the elements are established, then the accused is convicted of the crime. The burden of proof to establish these elements beyond a reasonable doubt is on the Crown. For the guilty act, one element required is voluntariness to commit the act. Usually, it is a low bar to establish since voluntariness can be demonstrated simply by showing that the accused committed the act in question. For example, in an assault case, showing that the accused moved their fist through the air and the fist made contact with another person would be enough. However, certain conditions may negate voluntariness. Imagine, if the accused moved their fist through the air and the fist made contact with another person while sleepwalking. The punch becomes involuntary because although the body is moving, “there is no link between mind and body” (Brown, para 47). This is an automatistic state of mind.
Mr. Brown raised the defence of ESIA because his mind and body were disconnected when committing the conduct of attacking the victim and causing her permanent injuries. Thus, the conduct which is the base for the aggravated assault charge, was involuntary and the Crown cannot prove the actus reus. The Court found that s. 33.1 operates in a manner that imposes liability even where an accused’s conduct was involuntary. The requirement for voluntariness of an act to prove the actus reus of an offence is a principle of fundamental justice under s. 7 of the Charter. Since, s. 33.1 imports criminal responsibility even if voluntariness is missing, it breaches s. 7 of the Charter.
II. Improper Substitution Breach
S. 11(d) of the Charter guarantees the accused’s right to be presumed innocent until proven guilty and the Crown must establish the elements of the offence beyond a reasonable doubt.
Mr. Brown argued that s. 33.1 transfers the voluntariness element from the act of self-induced intoxication to the act of committing the crime. The Court found this to be problematic for two reasons. First, the voluntariness element of one act cannot be transferred to the voluntariness of another act. This is impermissible in Canadian criminal law. Second, this gives the Crown an unfair advantage because they have not proved all elements of the offence beyond a reasonable doubt. The Court was particularly concerned that if this improper substitution is allowed, there may be an increase in wrongful convictions, a longstanding concern about the Canadian criminal justice system.
Hence, the Court found this improper substitution of voluntariness undermines Mr. Brown’s right to be presumed innocent until proven guilty, thereby breaching s. 11(d) of the Charter.
III. Mens Rea Breach
Under s. 7 of the Charter, “it is a principle of fundamental justice that proof of penal negligence, in the form of a marked departure from the standard of a reasonable person, is minimally required for a criminal conviction…” (Brown, para 90). Here, s. 33.1 only requires an intention to become intoxicated to convict the accused. This provision “applies to those who recklessly invite their loss of control” (Brown, para 92). However, it also captures individuals who may experience unexpected involuntary reactions because of the “self-induced” intoxication. For example, a patient who suddenly reacts to pain medication and injures another person in that state of involuntariness would be held liable under s. 33.1.
Therefore, if courts continue to convict individuals under s. 33.1 without proof of mens rea, then s. 33.1 essentially converts crimes with possibility of punishment into absolute liability offences, where only proof of an unlawful act is required to convict. Therefore, s. 33.1 commits a mens rea breach of s. 7 of the Charter.
The Court applied the case of R v Oakes,  1 SCR 103 to determine whether s. 33.1 violations of ss. 7 and 11(d) are justified under s. 1 of the Charter? The Court found the impact of these violations on the principles of fundamental justice are disproportionate to the overarching benefit of this provision for the public. Thus, the Court declared s. 33.1 of the Code unconstitutional and of no force or effect pursuant to s. 52(1) of the Constitution Act, 1982. Further, the Court allowed Mr. Brown’s appeal and acquitted him on both charges.
In Brown, the Court made numerous suggestions on the types of amendments Parliament can make to ensure s. 33.1 is constitutionally compliant. After five weeks of the Brown and Sullivan decisions, Parliament introduced one of the SCC’s suggestions in Bill C-28. Specifically, this bill amended s. 33.1 to capture and hold liable any individual who voluntarily consumes intoxicants in a criminally negligent manner, becomes extremely intoxicated, loses control, and harms others. The bill passed the House of Commons, the Senate, and received Royal Assent. This amendment to s. 33.1 came into effect on June 23, 2022.
While law takes time to evolve, sometimes it evolves quickly in response to closing an important legal gap. Here, Parliament’s speedy response to the SCC decisions indicates their intention to protect victims of violent crimes continues 28 years after Daviault. The Court and Parliament engaged in a dialogue to balance the rights of an accused with the protections for women and children victims in violent crimes.
Whether the constitutionality of the amended s. 33.1 is challenged remains a topic for another day. In the meantime, this article implores the public to carefully understand the implications of SCC decisions and thereby stopping fear mongering from alleged news sources on the issue of ESIA.