Ontario Appeals Court says acute intoxication by alleged assailants is a legitimate defence

Potential for rape defence concerns Island lawyer

MANITOULIN – On June 3, the Court of Appeal for Ontario (CAO) released its 3-0 decision in R. v. Sullivan and R. v. Chan that section 33.1 is to be of no force or effect under s. 52(1) of the Constitution Act, 1982, as contrary to the Charter of Rights and Freedoms. That decision sparked a flurry of outrage and commentary in the media and across social media networks.

In 1994 in R. v. Daviault, the accused was charged with sexual assault of an elderly woman who was an acquaintance of his wife. The accused was a chronic alcoholic who on the night in question had consumed eight beers and a 40 oz bottle of brandy. Experts testified that this amount of consumption can cause death or coma in the ordinary person. The trial judge acquitted the accused on the basis that he had a reasonable doubt whether the accused by virtue of his extreme intoxication possessed the minimal intent necessary to commit the offence of sexual assault. At issue was whether a state of drunkenness so extreme that an accused is in a condition that closely resembles automatism or a disease of the mind constitute a basis for defending a crime which requires not a specific but only a general intent. In the end the acquittal was upheld.

As a result of the public outcry following R. v. Daviault, Parliament introduced Bill C-72 which became section 33.1 of the Criminal Code of Canada. Essentially, section 33.1 of the Code legislated that a person is guilty of a violent offence even if they were so intoxicated that they did not know what they were doing, that they were acting as an automaton, as long as that intoxication was self-induced.

In R. v. Sullivan and R. v. Chan, both men attacked and stabbed loved ones while in the throes of drug-induced psychoses and without any discernible motive. Mr. Chan, who became intoxicated after consuming ‘magic mushrooms,’ killed his father and grievously injured his father’s partner. Mr. Sullivan, who had become intoxicated after consuming a heavy dose of a prescription drug in a suicide attempt, repeatedly stabbed his elderly mother, according to the CAO decision. Both men allege that they were in a state of automatism at the time of the attacks. 

As noted in the decision, the underlying principles of automatism state that “a person who is unable to decide whether to perform an act and is unable to control the performance of that act cannot be said, in any meaningful sense, to have committed the act. Nor can it be appropriate in a criminal justice system in which liability is predicated on personal responsibility to convict persons based on conduct which those persons have no ability to control.”

According to the CAO, section 33.1 contravened “virtually all the criminal law principles that the law relies upon to protect the morally innocent, including the venerable presumption of innocence.”

In its intervenor submission, Women’s Legal Education and Action Fund (LEAF), one of four intervenors heard in the appeal, argued that section 33.1 of the Criminal Code was a “measured attempt” by Parliament to balance the Charter rights of the accused with the Charter rights of women and children, who are most often the victims of intoxicated male violence.

LEAF further argued that the court must “consider all of the rights Parliament was seeking to balance when enacting this provision, particularly the equality and security rights of women and children,” stating that a clear understanding of Parliament’s objectives in enacting the legislation was required in assessing the constitutionality of section 33.1. 

The records of the debates on Bill C-72, argued LEAF, underscore that its objectives include both ensuring the accountability of those who, in a state of self-induced intoxication, cause harm to others, and protecting the security interests and equality rights of women and children who are disproportionately subject to intoxicated violence, particularly sexual and domestic violence. These objectives were solidly grounded in the evidence considered by Parliament and are reflected in its preamble. 

There was considerable evidence about the disproportionate impact of violence on women and children, the role intoxication plays in such violence and the policy reasons why aggressors must be held accountable for intoxicated violence. Section 33.1 is a carefully tailored response to the role of self-induced extreme intoxication in violence against women and children, said LEAF.

According to LEAF, these objectives remain as important today as they were when section 33.1 was enacted. Violence, particularly sexual and domestic violence, remains a gendered problem, and alcohol continues to be linked to violence against women. In 2008 (14 years after Daviault) women were still 10 times more likely than men to be the victims of a police-reported sexual assault. Earlier this year (now 25 years after Daviault) the Supreme Court of Canada recognized both that “eliminating myths, stereotypes, and sexual violence against women is one of the more pressing challenges we face as a society” and that sexual violence against women, particularly Indigenous women, remains “tragically common” and results in “devastating” consequences. The Court recently highlighted the shattering consequences of such offences, noting that they result in high rates of depression, anxiety, sleep disorders, panic and eating disorders, substance dependence, self-harm and suicidal behaviour. Alcohol (and drugs) remain closely linked to violence against women. Between 2007 and 2017, 63 percent of women and girls who were killed died at the hands of an intoxicated aggressor. The World Health Organization has also recently raised concerns about the link between alcohol and sexual violence. The harm caused to women as a result of intoxicated violence is extensive, infringing on rights to security and equality. Holding individuals accountable for violent crimes committed in a state of self-induced intoxication is a pressing and substantial objective, given that a failure to do so excuses such violence and discourages reporting, LEAF argued.

Professor Rosanna Langer, associate professor in the Department of Law and Justice at Laurentian University, was unavailable for an interview but did clarify that, “Intoxication has always been a difficult defence due to the non-systematic assignment of intent associated with various crimes. Authors have noted this problem for decades. There are also trade-offs associated with changing the level of intention required for sexual assault: should it remain a ‘general intent to act,’ such as assault, or require a more (but harder to prove) ‘specific intent’ to commit a specific crime, such as murder? The issue with intoxication, is that, generally speaking, it is, itself, intentional. In Canada, we have therefore substituted the intent to become intoxicated for the intention to commit the crime which followed.”

Automatism is another murky area with an uneven development of case law, Professor Langer said. “Both these defences have been used as legal ‘excuses’ to defend an accused for committing violent acts on women.”

Manitoulin lawyer Stacy Haner with Stacy Haner Legal Services noted that “the legislation enacted in 1995 that made the defence of intoxication unavailable had survived for 25 years in Ontario before being considered by the Court of Appeal. Accused persons had been both successful and unsuccessful in their applications to have the legislation struck down.  Where the accused had not been successful, and therefore could not use the defence, he was likely acquitted anyway or the matter was otherwise resolved. Where the accused had been successful, and could use the defence, the Attorney General might have decided not to appeal because the use of the defence was not a factor in the accused’s acquittal; that is, the accused was either convicted anyway or the case had other issues that led to its demise.”  

Essentially, she said, “It took 25 years for the legislation to get in the way of an accused’s acquittal. From a statistical point of view, looking at the numbers, the legislation did nothing to increase the reporting or conviction rate of sexual assault.” 

What does concern Ms. Haner is that “the conveyed dismay over this decision may send the message that the criminal legal system is less effective now, because of this decision, than it was before and it is this message that may dissuade victims from reporting or police officers from laying charges. The message I would prefer to send to victims considering reporting their sexual assault to police is that the criminal legal system is no less of an option because of this decision. Legal immunity for sexual assault in Canada perpetuates for other important reasons which are worthy of our cries for change.” 

Ms. Haner believes that legal reform is required to make the system more accessible to victims of sexual assault. “Trauma informed police, Crowns, court staff and judges are essential to the improvement of the experience of sexual assault victims who choose to report. The appointment of counsel to victims to give them confidential legal advice, support and advocacy is, in my view, crucial to improving the accessibility of the system to victims of sexual assault, and to the integrity of the system as a whole.”

“Legal squabbles over the availability of defences to perpetrators of crime are not insignificant or meaningless but they are far from being the most effective way to make the system respond better to sexual violence,” she said.  

Ms. Haner added, “It is not a defence to sexual assault that the accused was intoxicated or very intoxicated. The accused must be extremely intoxicated to the point of not being in control of his actions. This is an extremely high threshold and will be rarely met.”  

Still, it is upsetting, she said. “The efficacy of the criminal legal system in holding sexual offenders accountable is notoriously abysmal. The criminal legal system has not been a safe place for women and children to seek justice. The myths and stereotypes that exist in Canadian society at large do not stop at the doors to the police stations or courthouses. If women and children can get past their own shame and admonishment that is brought about by social conditioning, they may face it again and again as they engage those to whom they entrust their narrative.”

“When the court makes a defence available to alleged sexual offenders, that victims’ advocacy groups had successfully lobbied to have barred, it feels like regression.”

A spokeswoman for Ontario Attorney General Doug Downey said the prosecution wanted the top court to hear a challenge to it. In a statement, Jenessa Crognali confirmed that the Crown would be “seeking leave to appeal to the Supreme Court of Canada,” but “it would be inappropriate to comment further as the matters are before the court.”