- Lewis Waring
The Future of Automatism - Justin Vermette
Before giving an analysis of R v Sullivan (“Sullivan”), it is important to give a brief overview of some of the critical elements involved in the case: actus reus, mens rea, voluntariness, automatism, and section 33.1 of the Criminal Code of Canada (“the Code”).
Actus reus (committing the act) and mens rea (having the intention or the knowledge to commit an act) are very basic, fundamental elements of crime. It is necessary for the Crown to establish both of these elements beyond a reasonable doubt in order to convict an individual of an offence. However, demonstrating them has proven to be very complicated in practice.
Voluntariness is another key element. If the act committed was not committed voluntarily by the accused, then it cannot be established that the accused fulfilled the necessary elements of a crime. Closely related to voluntariness is automatism. In R v Stone (“Stone”), the Supreme Court of Canada (“the Court”) defined automatism as “[a] state of impaired consciousness, rather than unconsciousness, in which an individual, though capable of action, has no voluntary control over that action”. If an accused person successfully demonstrates that they were in a state of automatism while performing the act in question, then they did not perform the act voluntarily and cannot be convicted.
Section 33.1 of the Code states that the defence of automatism cannot be used in cases where the accused has voluntarily gotten intoxicated. The goal of this section is to say that if an individual chooses to get so intoxicated that they are in a state akin to automatism then they should be responsible for whatever occurs while they are in that state.
R v Sullivan (“Sullivan”) is a case that contains all of these elements. Sullivan is a case that was heard in Ontario, where the court ultimately ruled that section 33.1 of the Code violated the accused’s Charter rights under sections 7 and 11(d). Section 7 of the Charter gives the right to life, liberty, and security of person, and section 11(d) gives the right to be considered innocent until proven guilty in court. In effect, section 33.1 is no longer applicable in Ontario. If Sullivan is affirmed by the Court, section 33.1 will no longer be applicable throughout Canada. Therefore, the Court clearly has a very important case in front of them, and the outcome that they reach could potentially impact all of Canada.
Two tragedies fuelled by self-intoxication
Sullivan was actually two jointly heard cases on appeal — R v Chan and R v Sullivan. In Chan’s case, he had consumed a large amount of magic mushrooms. He started to get scared and experience hallucinations, thinking that his family was the devil. During his hallucination, he ran over to his father’s house and stabbed him, killing him. In Sullivan’s case, he had consumed a large amount of Wellbutrin tablets in order to attempt suicide. Shortly thereafter, Sullivan began to hallucinate and started to believe that his mother was an alien. He got aggressive and began to stab her, but fortunately she survived.
At trial in Sullivan, Chan and Sullivan both attempted to plead that they were in a state akin to automatism when they attacked their families, but, since they became intoxicated voluntarily, section 33.1 was triggered. In Chan’s case, the trial judge ruled that section 33.1 violated section 7 and 11(d) of the Charter but also ruled that the violation was justified under section 1 of the Charter. In Sullivan’s case, the trial judge rejected his defence of automatism due to the fact that his intoxication was self-induced.
On appeal, the Court of Appeal for Ontario (“ONCA”) found that section 33.1 violated sections 7 and 11(d) of the Charter and that this violation could not be saved under section 1. The ONCA found that these violations occurred for three core reasons: a voluntariness breach, an improper substitution breach, and a mens rea breach.
The voluntariness breach occurred because voluntariness is a core element needed for a conviction. In operation, section 33.1 is contrary to this principle as it allows for a conviction to be found even when voluntariness is lacking, going against the principles of fundamental justice in Canada.
The majority in Sullivan also found an improper substitution breach. The ONCA stated that it was improper for the trial judges to substitute voluntariness with the fact that the intoxication was voluntary. Proving intention to get intoxicated, held the ONCA, is not the same as proving the intention to commit assaults, the latter being necessary for a conviction.
The mens rea breach occurred simply because the mens rea for the crimes were not established. The minimum requirement needed to find the mens rea for a crime is penal negligence. For penal negligence to be proven, it must be shown that the accused’s actions departed from that of a reasonable person, and that the risks (of attacking their families) must have been a reasonably foreseeable consequence for their actions. The majority stated that the hallucinations causing Chan and Sullivan to attack their families would not have been a reasonably foreseeable consequence when they consumed drugs.
The ONCA concluded that section 1 of the Charter could not justify the violations of sections 7 and 11(d) of the Charter and found that s.33.1 was not minimally impairing, its negative effects heavily outweighing any beneficial effects that it might have. The fact that section 33.1 would allow the Crown to establish a conviction without proving the requisite elements of an offence was unacceptable to the ONCA, so Chan and Sullivan were acquitted.
The Crown has stated that they will be appealing the Sullivan decision to the Court.
The public’s response and potential impact on future cases
Sullivan immediately incited strong opinions from both sides of the debate. Namely, civil liberties groups strongly felt that this decision was a step in the right direction for criminal justice while women’s rights groups strongly felt that this decision was a step in the wrong direction for all women and victims of violence. These feelings of injustice held by women’s rights groups were magnified by various news articles. For example, one CTV news article stated “[a] court ruling allowing people accused of sexual assault or other violent crimes to argue they were so intoxicated they didn’t know what they were doing has angered women’s right activists…”. News articles like this made the situation worse, as they did not accurately reflect the ruling in Sullivan. It is important to note that, in both Chan’s and Sullivan’s situations, they did not sexually assault anybody, and their intoxication was not triggered by alcohol. It is important to note this because those are the types of situations that women’s rights activists are most concerned about.
Many women’s rights groups argued that this decision created another hurdle for those who want to seek justice after being attacked. The Women's Legal Education and Action Fund stated that it "risks sending a dangerous message that men can avoid accountability for their acts of violence against women and children through intoxication”. However, it is important to note that the threshold to establish an automatism defence is extremely high. To be successful in an automatism defence, the accused is required to demonstrate automatism based on medical evidence, as well as witnesses who could testify that they had lost touch with reality. It is an extremely unusual defence and is not one that would allow an accused to simply avoid conviction due to intoxication.
The Court has a very crucial decision to make in regards to section 33.1. If they affirm the rulings made by the ONCA, then section 33.1 will be ruled unconstitutional and will no longer have any effect in Canada. If the Court overrules the ONCA’s decision, then section 33.1 will still be good law in Ontario and throughout Canada. However, the Court also has other options. When the Court finds that a law is unconstitutional but does not want to immediately strike it down, they have the option to suspend their declaration of invalidity in order to give Parliament time to re-write the law.
I believe a suspension of a declaration of invalidity is the Court’s best course of action in this case. During the time in between R v Daviault (the landmark case of an automatism defence resulting from over-consumption of alcohol) and the enactment of section 33.1, there were five cases in which an accused successfully relied on the automatism defence after becoming self-intoxicated from alcohol. Therefore, I believe a law like section 33.1 is necessary in order to prevent these situations from becoming the norm.
However, I also believe that section 33.1 is over-inclusive and that it should not apply to the situations of Chan and Sullivan. By suspending their declaration of invalidity, this would allow Parliament to re-write the law and would also allow the court to give Chan and Sullivan individual remedies under section 24(1) of the Charter — one such remedy could be excusing them from the effects of section 33.1 while it is still valid. Some legal scholars have recommended the possibility of Parliament re-writing section 33.1 to specifically reject alcohol-induced intoxication defences. Since alcohol-related incidents are those which women’s rights groups are most concerned with, this type of remedy seems to be one that would be acceptable by both sides of the debate, and I believe that this is the most reasonable course of action.