Overview
Section 33.1 of the Criminal Code (“Code”) states that a person is guilty of a violent offence, even if they were so intoxicated that they did not know what they were doing, so long as that intoxication was self-induced. For 25 years, this provision was active in Canadian law. No longer in Ontario. This month, the Ontario Court of Appeal declared the provision of no force or effect, meaning it is no longer valid in this province. In R v Sullivan, 2020 ONCA 333, the Court of Appeal declared s. 33.1 unconstitutional for violating two sections of the Charter: the right to life, liberty, and security of the person (s. 7), and the right to the presumption of innocence (s. 11(d)).
The Ontario Crown has announced it intends to seek leave to appeal the decision to the Supreme Court of Canada.
What's Changed?
With s. 33.1 struck down, the defence of non-mental disorder automatism is now available to defendants accused of violent crimes committed while in an automatic state as a result of self-induced intoxication.
While there is concern that this ruling will cause perpetrators to use the non-mental disorder automatism defence to evade responsibility for sexual assaults and other violent crimes, the appellate court has stated the defence is difficult to access.1 It requires expert evidence, medical testimony, and the onus is on the accused to prove the defence to a judge or jury on a balance of probabilities. The Court of Appeal noted that application of s. 33.1 is rare, yet the effect on the rights of the accused is dramatic.
Falling short of causing automatism, intoxication, even a high degree of intoxication, is still no defence to any criminal offence.
This judgement took place at the Ontario Court of Appeal, meaning is must be followed by all lower courts in Ontario, and can be “persuasive” in courts of other provinces.
Facts
In R v Sullivan, 2020 ONCA 333, the court decided two appeals jointly. Two accused, Sullivan, and a young man named Chan, were tried and convicted of assault among other charges. Each was in an automatic state due to self-induced intoxication, but could not use that as a defence due to the operation of section 33.1.
The summary of the facts are:
- Chan voluntarily consumed magic mushrooms. After not feeling the effects, he consumed more. He then began to have a bad trip. Thinking his father was the devil, he stabbed him. His father died from his injuries.
- Sullivan attempted suicide by self-inflicted overdose of his prescription medication, Wellbutrin, which he had been taking to attempt to quit smoking. He experienced a psychotic episode and, thinking his mother was an alien, stabbed her.
Sidebar: What is Automatism?
Automatism is defined as “a state of impaired consciousness, rather than unconsciousness, in which an individual, though capable of action, has no voluntary control over that action”: see R v Stone, [1999] 2 SCR 290, at para 156. Involuntariness, as Appeal Justice Paciocco said, “is the essence of automatism.”
People in a state of automatism may have the benefit of a defence when they commit a criminal act. The burden is always on the accused to establish automatism.
The defence of automatism has two branches. The mental disorder defence, codified in s. 16 of the Criminal Code, applies where involuntariness is caused by a “disease of the mind.” If successful, a mental disorder automatism defence will result in a not criminally responsible verdict. A not criminally responsible verdict means a referral to the Ontario review board, detention or extensive community supervision may follow an assessment.
The other branch, known as the common law automatism defence, applies where the involuntariness is not caused by a disease of the mind. The same principles of mental disorder automatism apply. Where a non-mental disorder automatism defence succeeds, the accused is acquitted.
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