R v Brown: Think Before You Get High - Tobey Xiang
Intoxication as a defence occupies a unique status in criminal law. While normal levels of intoxication induced by alcohol alone have been proven to be insufficient to place a person in a state of automatism, extreme intoxication caused by alcohol in addition to other psychoactive substances can render a person in such a state. Extremely intoxicated individuals can commit violent offences without being conscious and voluntary in their conduct. This raises the doubt of whether elements normally necessary for convictions are present. This essay examines R v Brown, a recent Supreme Court case on this topic.
R v Brown is a case involving extreme intoxication. The accused, Mr. Brown, consumed illicit magic mushrooms at a party in addition to alcohol. The ingestion of the drug combined with the consumption of alcohol rendered him in a state of intoxication akin to automatism, where he completely lost control of his behaviour. While intoxicated, he committed and was charged with breaking and entering, mischief to property, and aggravated assault. At the time, s.33.1 of the Criminal Code denied—with regard to certain general intent offences—the defence of intoxication akin to automatism. This defence would have otherwise negated the element of voluntariness and mens rea to result in an acquittal. The provision effectively allowed convictions of general intent offences such as assault, as long as the accused was self-intoxicated.
Legislative History of s.33.1
As the center of the issue in Brown, s.33.1 was initially brought into the Criminal Code after two seminal cases involving intoxication. The first one was Leary v The Queen, a pre-Charter case involving sexual assault where a majority of the Supreme Court established the Leary rule which rejected self-induced intoxication as a defence for general intent offences. The Leary rule was subsequently overturned by the same court in a 1994 decision, R v Daviault, where it was determined that the Leary rule breached s.7 and s.11(d) of the Charter. In Daviault, it was held that an accused charged with a general intent offence such as sexual assault should be able to raise the defence of intoxication if such intoxication was so extreme at the time of the offence as to amount to automatism, where the necessary mental element for conviction was absent.
The Daviault decision was not well received by the public on the ground that it failed to consider the gender aspect of intoxicated violence. It was under public criticism that Parliament introduced s.33.1 of the Criminal Code, stating:
33.1 (1) It is not a defence to an offence referred to in subsection (3) that the accused, by reason of self-induced intoxication, lacked the general intent or the voluntariness required to commit the offence, where the accused departed markedly from the standard of care as described in subsection (2).
(2) For the purposes of this section, a person departs markedly from the standard of reasonable care generally recognized in Canadian society and is thereby criminally at fault where the person, while in a state of self-induced intoxication that renders the person unaware of, or incapable of consciously controlling, their behaviour, voluntarily or involuntarily interferes or threatens to interfere with the bodily integrity of another person [emphasis added].
(3) This section applies in respect of an offence under this Act or any other Act of Parliament that includes as an element an assault or any other interference or threat of interference by a person with the bodily integrity of another person.
SCC Decision in Brown
At the Supreme Court, Mr. Brown raised the issue of whether s.33.1 of the Criminal Code violated his s.7 and s.11(d) Charter rights. The court found that the language of s.33.1 was constructed in a way that would allow an accused to be convicted of general intent offences without the necessary mens rea and voluntariness and was therefore in breach of s.7 of the Charter. It was also found that s.33.1 allowed the improper substitution of self-induced intoxication for proof of the essential elements of an offence and therefore violated the presumption of innocence under s.11(d) of the Charter. Writing for a unanimous Supreme Court, Kasirer J pointed out that self-induced intoxication under s.33.1 was in no way connected to any fault element, and as the use of the word “while” in subsection 2 suggests, self-intoxication serves as a condition for criminal liability instead. s.33.1 also failed in the s.1 justification analysis, resulting in the acquittal of Mr. Brown.
Analysis and Criticisms
Section 33.1 of the Criminal Code was criticized in Brown in a manner similar to how the Leary rule was criticized in Daviault. In many respects, s.33.1 was essentially a codified version of the Leary rule, seemingly in rebellion against the ruling in Daviault. Parliament’s response to Brown in 2022, however, showed deference to the Court.
Shortly after the Brown decision, Parliament swiftly amended the language of s.33.1 in an effort to comply with the Charter. It adopted one of the options suggested by the Supreme Court during its minimally impairing analysis in the s.1 justification stage. The court described an option that introduces a fault element connecting to the act of self-intoxicating where the risk of harm to others is objectively foreseeable by a reasonable person, thereby giving rise to mens rea in the degree of negligence. Such mens rea is then relied upon to convict an accused for their subsequent conduct captured by the designated general intent offences. The amended provision now requires that before a court convicts an accused of a designated general intent offence committed while in a state of automatism as a result of self-intoxication, it must consider, inter alia, the objective foreseeability of the risk of harm to others as well as any risk avoidance measures taken by the accused before they intoxicated themselves.
The legislative option offered in Brown provided a channel to the finding of a constitutionally required degree of men rea. Compared to the original s.33.1, it strives to reflect the blameworthiness of convicted individuals based on a tangible fault element. Essentially it affords a heightened level of constitutional protection to accused individuals while avoiding the level of furor and erosion of public confidence seen in response to Daviault. But this does not confer the notion that the option endorsed in Brown was perfect without drawbacks.
First, the legislative option can be criticized on the basis that the extent to which it reflects blameworthiness is still quite limited. Although the approach taken was to infuse a fault element into the equation of criminal conviction, the fault element only relates to the action of self-intoxication, as opposed to that of the designated offence of which the accused is to be convicted. Also, since negligence, unlike recklessness or knowledge, is a much milder form of fault element compared to what’s required for most of the designated general intent offences and that self-intoxication is not even a crime in the first place, it follows that the labelling and punishment of convicted individuals can still be disproportionate to the severity of their fault.
Second, the issue of drug addiction was never meaningfully engaged by the Supreme Court in its analysis. Ultimately, there is a difference in the blameworthiness between an accused who dangerously consumes intoxicating substances of his own volition and someone who consumes the same substances at the peril and disease of drug addiction. To the extent that the suggested legislative option—which has now become law—imposes the standard of a reasonable person regardless of drug addiction status, it refuses to afford addicted individuals any reasonable amount of sympathy and any recognition of their decreased level of blameworthiness. In addition, convictions are also unlikely to be an appropriate solution to deter the consumption of illicit substances if the reason for consumption is addiction. Moreover, drug addiction in Canada has a significant Indigenous aspect. It has been reported that Indigenous people suffer disproportionately from drug addiction due to the generational pain and trauma caused by the legacy of colonization. While being already overrepresentedin the criminal justice system, Indigenous individuals could face the risk of being subject to further systemic discrimination under the objective standard. This further discrimination would run contrary to the national aim of Truth and Reconciliation.
Self-induced intoxication is a complex area of criminal law. It constantly grapples with conflicts between different interests and the way it works can be artificial at times. The Supreme Court in Brown has provided further guidance and ideas on how to balance the interests while remaining cognizant of constitutional principles. However, further reform is still required to ensure that the labelling and punishment of convicted individuals proportionately reflect the degree of fault. In addition, the issue of drug addiction, especially among the Indigenous community, will also need to be taken into consideration in the process of further reform.
 R v Brown, 2022 SCC 18 at para 61, [Brown].  Ibid, at paras 15-18.  Ibid, at para 19.  Criminal Code, RSC 1985, c C-46, s 33.1, as amended by An Act to amend the Criminal Code (self-induced intoxication), SC 1995, c 32, s 1  Brown, supra note 1 at para 79.  Leary v The Queen,  1 SCR 29 at para 20, 74 DLR (3d) 103 [Leary].  R v Daviault,  3 SCR 63 at para 44, 118 DLR (4th) 469 [Daviault].  Ibid at paras 64-65.  Lewis Waring, “The Daviault Defence - Nikolai von Schilling” (30 July 2021), online (blog): Robson Crim Legal Blog <www.robsoncrim.com/single-post/the-daviault-defence-nikolai-von-schilling> [perma.cc/CV5Q-UDEV].  Supra note 4.  Brown, supra note 1 at paras 96-98.  Ibid at paras 99-105.  Ibid at paras 8, 79, 83.  Ibid at para 167.  Ibid at paras 137, 156.  Criminal Code, RSC 1985, c C-46, s 33.1, as re-enacted by An Act to amend the Criminal Code (self-induced extreme intoxication), SC 2022, c 11, s 1.  Brown, supra note 1 at paras 139.  Karen A. Urbanoski, “Need for equity in treatment of substance use among Indigenous people in Canada” (2017) 189: 44 CMAJ E1350  Department of Justice, “State of the Criminal Justice System Dashboard” (28 April 2022), online: Government of Canada <www.justice.gc.ca/socjs-esjp/en/ind-aut/uo-cs> [perma.cc/X8R6-PZGS].  Lisa A. Silver, “Section 33.1 & How Intoxication Became A Form of Mens Rea” (5 May 2015), online (blog): IDEABLAWG <www.ideablawg.ca/blog/2015/5/5/section-331-how-intoxication-became-a-form-of-mens-rea-episode-38-of-the-ideablawg-podcasts-on-the-criminal-code-of-canada-a-long-read-or-listen> [perma.cc/XM5L-54YB].
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