One of the first things you learn in criminal law is that the law should only punish conduct that is voluntary. In other words, something someone was trying to do. You also learn pretty early that each offence has an actus reus (the action) and mens rea (intent) element.

S. 33.1 of the Criminal Code provided 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. Right away you can see that that appears to be at odds with the concept that only conduct that is voluntary ought to be punished. If you are so intoxicated that you don’t know what you are doing then under s. 33.1 you could still be punished. 

The Ontario Court of Appeal in R. v. Sullivan and R. v. Chan has found s. 33.1 unconstitutional because it breaches s. 7 and 11(d). The Court’s analysis is lengthy and nuanced. In broad strokes, s. 33.1 violates s. 7 because a person can be imprisoned for an action they did not do voluntarily and violates s. 11(d) because it allows a person to be found guilty even when judge or jury has reasonable doubt about whether or not the act was voluntary.

In considering this decision it is important not to lose sight of the facts and the situations to which s. 33.1 applied. Certainly much discussion had occurred over the impact of this decision on sexual assault cases. 

Mr. Chan voluntarily consumed magic mushrooms. He had a very bad trip. He believed he was a deity. He believed his father was a devil, and he stabbed him. His father succumbed to his injures.

Mr. Sullivan over-consumed prescription medication in an attempt to take his own life. The suicide attempt failed, but the medication left him in a state of extreme psychosis. He believed he had captured an alien and in the throes of this psychotic episode, he stabbed his mother who was in the home with him at the time.

S. 33.1 did not apply to someone who had too many drinks at the bar, had their inhibitions lowered and then committed an offence. That person remains guilty of the offence they committed. This would appear to address concerns about the ruling in this case and it’s impact on sexual assault prosecutions. S. 33.1 applied specifically to people who are not merely intoxicated, but automatons. 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.”

It is the rare case where someone is intoxicated to the point that their conduct is no longer voluntary. 

It seems reasonable to expect that this case may make its way to the Supreme Court of Canada. 

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