• Lewis Waring

Self-Induced Intoxication Leading to Automatism - Cody Dangerfield

R v Sullivan (“Sullivan”) was the first Canadian appellate case to address the constitutionality of section 33.1 of the Criminal Code (“the Code”), which prevents defendants from using the non-mental disorder automatism defence when caused by self-induced intoxication. Paciocco JA, speaking for the Court of Appeal for Ontario (“the ONCA”), found that section 33.1 of the Code violated sections 7 and 11(d) of the Canadian Charter of Rights and Freedoms (“the Charter”) could not be saved under section 1 of the Charter and thus was declared to be of no force or effect in Ontario. The Supreme Court of Canada (“the Court”) granted the Crown leave to appeal the case.

Thomas Chan, a high school student, ingested “magic mushrooms” one winter evening with his friends while at his mother’s house. When his friends began experiencing the effects of the mushrooms before him, he took an additional quantity of the drug. Later, he became frightened and started losing his grip on reality, believing he was God while calling his mother “Satan”. Chan eventually left his mother’s house, wearing only pants in the freezing temperature outside, and ran to his father’s house nearby. Despite having access to the house through a finger-print recognition security system, Chan broke in through the window, went to the kitchen, and repeatedly stabbed his father as his father tried to calm him down. He then stabbed his father’s partner, seriously injuring her. Chan’s father succumbed to his injuries. The police officers described Chan as having “super-strength” while he was being placed under arrest. Chan raised a defence of non-mental disorder automatism at trial, which failed, and he was convicted of manslaughter and aggravated assault.

David Sullivan was living in a condominium with his mother and began taking Wellbutrin to quit smoking. He began experiencing psychosis, one of the side effects of the drug, and believed aliens were living on the premises with them. One day, Sullivan attempted to end his life by ingesting 30 to 80 tablets of Wellbutrin, which caused an extreme break from reality. Sullivan became convinced his mother was an alien and stabbed her several times, injuring her. The police officers found Sullivan outside running around while screaming incoherently. Sullivan also raised an unsuccessful non-mental disorder automatism defence at trial and was convicted of aggravated assault.

Automatism is a complete defence that states a defendant was not acting voluntarily at the time of the crime and is divided into two categories, mental disorder automatism and non-mental disorder automatism. Mental disorder automatism is brought on by an internal mental disorder, while non-mental disorder automatism is triggered by an external event, such as ingesting drugs or experiencing a shocking incident that results in psychological trauma. In R v Daviault (“Daviault”), the Court found that the defence of non-mental disorder automatism can be raised when the intoxication of the defendant is self-induced. Daviault was a case involving a sexual assault against an elderly woman; there was a public outcry against the decision, which led to the enactment of section 33.1 of the Code that prohibits defendants from raising the automatism defence when caused by self-induced intoxication.

The trial judges for Chan and Sullivan both applied section 33.1 in determining that non-mental disorder automatism defences cannot be used when there is self-induced intoxication. Chan had willingly ingested magic mushrooms while Sullivan had intentionally swallowed Wellbutrin, albeit with the intention of committing suicide. Chan argued section 33.1 is unconstitutional, as it violated sections 7 and 11(d) of the Charter. The trial judge agreed that the impugned section violated sections 7 and 11(d) but found that the provision was saved under section 1 of the Charter, which allows for Charter rights to be limited when those limits are reasonably justified in a free and democratic society. Sullivan argued he did not ingest the Wellbutrin with the intention of becoming intoxicated and thus that section 33.1 did not apply to his case; this argument was rejected by the trial judge.

The ONCA allowed the appeals of Chan and Sullivan to be jointly heard and found that section 33.1 was unconstitutional and could not be saved under section 1 of the Charter. Paciocco JA, speaking for the ONCA, reasoned that section 33.1 infringed section 11(d) of the Charter, which states a defendant has a right to the presumption of innocence. Although a defendant may have voluntarily ingested drugs, they did not have the intention to commit any crime; thus, there is a lack of the requisite elements needed to prove a crime. The ONCA continued to say that section 33.1 also violated section 7 of the Charter as it did not require the minimum level of constitutional fault needed to permit a conviction. Once a law has been shown to infringe Charter rights, the onus is on the Crown to show that, on the balance of probabilities, it can be justified under section 1 using the test deriving from the decision of R v Oakes (“the Oakes test”). The Oakes test involves finding:

  • a pressing and substantial purpose for the law;

  • a rational connection between that purpose and the effect of the law;

  • a minimal impairment of Charter rights; and

  • a proportionality between the rights infringed and the benefits of the law.

The ONCA concluded by stating section 33.1 could not be saved under section 1 because it had failed the minimal impairment test, the rational connection test, and generally failed to attain proportionality between its infringement of Charter rights and its protective effects.

Section 33.1 of the Code, as described by the Crown in Sullivan, had two pressing and substantial purposes. One purpose is to protect potential victims, especially women and children, from violent acts done by those in a state of automatism. The ONCA held that this was a pressing and substantial purpose. Another purpose of the impugned section was to hold self-induced intoxicated individuals in a state of automatism accountable for their violent actions. The ONCA found this was an improper purpose as it was unconstitutional to impose accountability when there is no voluntariness due to automatism. However, the ONCA found that to impose accountability on defendants who have committed a wrongful act against another person is a pressing and substantial objective. It places certain responsibilities on those who are taking intoxicating substances and who must be aware of the effects of the drugs and take preventative measures to ensure they maintain adequate levels of self control. To remove this accountability from individuals who are approaching a state of automatism due to intoxication would remove their concern about what would happen if they were to continue to ingest the intoxicant. There would be no need to restrain oneself from reaching a state of automatism if there was no liability for any actions that would result while a person is in such a state. Therefore, the ONCA found that accountability was a valid pressing and substantial purpose of section 33.1.

The ONCA in Sullivan found that there was no rational connection between the legislative objective and the means used to achieve that objective and also found that section 33.1 of the Code would not deter possible offenders who could not reasonably foresee falling into a state of automatism and committing violent acts. Furthermore, the ONCA argued that, in the possibility that offenders could foresee the risks of violence, if they were not deterred by the law’s stating that reduced inhibitions and clouded judgment are not defences to violent acts, they would not be deterred by section 33.1 of the Code. However, without 33.1, there would undeniably be less deterrence for would-be offenders and, even if that extra deterrence was relatively minimal, it should be affirmed as a valid provision. Thus, the objectives of protection of vulnerable people and holding offenders accountable were found by the ONCA to be rationally connected to the means of the law.

The ONCA decided section 33.1 of the Code was not minimally impairing as it was not narrowly tailored and Parliament had failed to choose a more viable alternative. Section 33.1 of the Code was sufficiently narrow in its scope as it only affected non-mental disorder automatisms related to self-induced intoxication and only in cases where that state of automatism led to violence against another person. The provision adequately addressed the objective of protecting individuals from the harm arising from self-induced intoxicated offenders while minimally impairing Charter rights to achieve its purpose. In R v Robb, the Saskatchewan Court of Queen’s Bench had found that section 33.1 of the Code was minimally invasive and, since the law’s purpose was to protect a vulnerable group, deference to Parliament should be shown. Additionally, the Court found in R v Chaulk that a court should only look to whether Parliament considered other alternatives in their decision to enact the law; they do not need to have chosen the least intrusive option.

The ONCA finally looked at the overall proportionality between the statutory and deleterious effects of section 33.1 of the Code and found they were not proportionate as a result of the negation of voluntariness when committing the actual prohibited act, which is normally needed to convict a defendant. However, the positive statutory effects, namely the protection given to vulnerable groups, outweighed the infringement of the Charter rights of a small number of offenders to whom the provision is applicable. The ONCA found that the protective purpose of the law reached a far greater portion of the population than that of the negative effects. Section 33.1 of the Code was found not to be disproportionate in its application and thus was demonstrably justified in a free and democratic society under section 1 of the Charter.

As this case has been granted leave for appeal to the Court, the final verdict in Sullivan is currently outstanding. The case will be heard by the Court later in 2021, who will make a definitive judgment on the provision and let the debate throughout the lower courts be settled.

Check out the Robson Crim MLJ
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