On June 3, 2020, the Ontario Court of Appeal released a long-awaited judgment on the issue of the constitutionality of s.33.1 of the Criminal Code. If you listened to the media and some social media accounts, you would likely be thinking that this decision has drastically changed the defences that are now available for some types of offences (i.e. sexual assault). The media has misleadingly called this decision opening up the possibility of intoxication as a defence for offences like sexual assault. So let’s take a further look into this decision and figure out what it actually means.
In response to a Supreme Court of Canada decision in 1994, Parliament enacted section 33.1 of the Criminal Code. That section essentially eliminated the defence of self-induced intoxication to the point that a person unaware or incapable of controlling their actions (i.e. automatism) to offences that involved an assault or any other interference or threat of interference with the bodily integrity of another person. Therefore, section 33.1 was limited to only those cases where an accused suffered such extreme intoxication where the consequences were such that they did not know what they were doing or could not control their actions. The case before the Ontario Court of Appeal released recently dealt with the constitutionality of this section. In striking this section down, the Court of Appeal allowed the possibility of raising this defence, self-induced intoxication so extreme that it leads to automatism. It does not mean that an accused can raise the defence of intoxication and be acquitted of an offence.
The facts of the case before the Ontario Court of Appeal demonstrate the scope of this defence. This is not something that will be raised easily by defence counsel, typically requiring retaining a defence expert.
In Chan, Mr. Chan had consumed magic mushrooms. This was not the first time he had consumed magic mushrooms and on those previous occasions, he had a normal high experience, feeling euphoric. On this occasion, a few hours after consuming the mushrooms his behaviour completely changed. He ran upstairs to his mother’s room, calling his mother and sister “Satan” and “the Devil”, claiming to “see the light”. He ran outside in only a pair of pants despite the below freezing and snowing weather conditions. He fought one of his friends off who was trying to stop him, broke a car window, yelling “This is God’s will” and “I am God”, and broke into his father’s house through the window despite having access to the door. Without any apparent motive or reason, he stabbed his father and stepmother, staring at them as if he did not recognize them. When handcuffed by police, he struggled and was described as having “super-strength.” Mr. Chan also had a mild traumatic brain injury from rugby, which may have contributed to his drug-induced psychosis. He was charged with murder and aggravated assault.
In the Sullivan appeal, Mr. Sullivan had been prescribed Wellbutrin for smoking cessation and was known to cause psychosis as a side effect. Mr. Sullivan consumed 30-80 pills in a suicide attempt at which time he had a profound break from reality. He believed he had captured an Archon in his living room. When he brought his mother to show her, he believed she was an alien and attacked her with two kitchen knives. He stopped after she screamed, “David, I’m your mother”. When police arrived, he was screaming outside incoherently and running erratically.
In both cases, the trial judges convicted the accused. The trial judges agreed that the accused had acted involuntarily but because of the fact that the accused had consumed the drugs voluntarily, section 33.1 barred them from raising this as a defence.
The Ontario Court of Appeal determined that section 33.1 of the Criminal Code infringed section 7 and 11(d) of the Charter. Section 7 reads that everyone has the right to life, liberty and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice. Section 11(d) reads that any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal. The Court concluded that these rights were violated in three separate ways by the section:
· The voluntariness breach: section 33.1 permits a conviction bypassing proving voluntariness. It is a principle of fundamental justice that voluntariness is an element of every criminal offence, that a person can only be convicted of an offence for which he or she chooses to commit.
· The improper substitution breach: sections 33.1 permits a conviction without proof of the requisite elements of the offence. The Court rejected that voluntary intoxication could substitute the required elements of the offence because it would permit a conviction where there may still be a reasonable doubt. Proving voluntary intoxication by the Crown does not necessarily or ordinarily prove the intention to commit a criminal act like assault. Section 33.1 prohibits an acquittal when a court may still have a reasonable doubt about whether the accused intended to commit the criminal act, even if the court found that the accused intended to be come voluntarily intoxicated.
· Mens rea breach: section 33.1 permits convictions where the Crown has not met the minimum level of constitutional fault. In some cases, the Code outlines the minimum fault requirement that the Crown must prove: i.e. the Code may stipulate that a person knowingly committed an act. Where there is no specific “fault” requirement in the Code, the Crown must at least establish that the accused was at a minimum negligent, that the relevant risk (of the criminal offence) must be reasonably foreseeable and amounts to a marked departure from standards of ordinary prudence.
As a result of the above breaches, the Court of Appeal struck down s.33.1, finding that the breaches could not be saved under section 1 of the Charter.
The case itself is complex given the constitutional arguments, so what does this mean for the public and for an accused who voluntarily consumed intoxicating substances and committed a criminal offence? Firstly, the Crown Attorney’s office has confirmed that they will be appealing this decision to the Supreme Court of Canada. So, this may not be the last word if leave to appeal is granted. Until then, this section of the Code has been struck down and no longer applies in Ontario. If a person faces criminal charges and believes that they suffered a psychosis due to self-induced intoxication, this may be a viable defence. This defence will be rarely raised and it is important for an accused to consult an experience lawyer to determine whether this defence applies and how to raise it in their case.
