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The Negative Consequences of Legislative Inaction on the Automatism Defence - Jordan Wagner


Automatism is one of the most controversial defences in Canadian criminal law. A large part of the controversy stemmed from a decision made by the Supreme Court of Canada (SCC) in 1994. In R v Daviault, Henri Daviault sexually assaulted a disabled 65-year-old woman and claimed the defence of automatism because of the amount of alcohol he consumed.[1] The SCC ruled in favour of the defendant and ordered a new trial. This decision was not popular with the public, and the subsequent year, Parliament passed Bill C-72.[2] This bill banned the use of this defence for violent crimes such as manslaughter and sexual assault. Now in 2022, a series of court decisions changed how the defence of automatism can be applied. I will start by discussing one of the influential SCC cases regarding automatism, R v Sullivan, and then will go over the subsequent legislation that further altered the Criminal Code to provide clarity on automatism caused by extreme intoxication. The point that I want to get across in this blog is to show the time between the R v Sullivan decision and Parliament passing Bill C-28 was detrimental to the public good. Parliament should have been proactive in updating the Criminal Code instead of being reactive. The decision affected courts across the country and a local example of R v Duck will be used to illustrate this point.


In the R v Sullivan case, David Sullivan violently injured his mother with a knife.[3] He did so after voluntarily overdosing on prescription drugs which left him in an impaired state. Mr. Sullivan was charged with aggravated assault and assault with a weapon, among other charges. At his trial, Mr. Sullivan argued that his actions were involuntary due to his state of intoxication, and therefore he could not be guilty of the offences of general intent brought upon him.[4] The trial judge decided that the defence of extreme intoxication akin to automatism was not applicable because of s. 33.1 of the Criminal Code, and subsequently found him guilty of two assault charges.[5] The Ontario Court of Appeal (ONCA) heard Mr. Sullivan and Mr. Chan’s appeals together, for the succinctness of this blog, I will focus on Mr. Sullivan. The judge ruled that s. 33.1 is unconstitutional because it violated the Canadian Charter of Rights and Freedom ss. 7 and 11 (d).[6] The Crown appealed this decision to the SCC.


The decision among all nine members of the SCC in the R v Sullivan case was unanimous. Justice Kasirer wrote for the court and dismissed the Crown’s appeal.[7] The trial judge ruled that Mr. Sullivan was acting involuntarily but had to be found guilty due to s. 33.1 of the Criminal Code. The SCC found the decision by ONCA was correct in declaring that s. 33.1 is invalid. Subsequently, the SCC agreed with the ONCA that Mr. Sullivan’s conviction should be set aside and substituted for an appeal.[8]

Parliaments Decision

After the SCC decision, there was a flurry of news stories regarding this decision and its impact on the future of the increased prevalence of automatism defences. One of the controversies was that it was now possible for those who commit a violent offence while extremely intoxicated to use the defence of automatism. Parliament introduced Bill C-28 which makes sure that the “Criminal Code will now ensure that individuals who consume drugs and/or alcohol in a criminally negligent manner are held criminally responsible if they harm others while extremely intoxicated”.[9] Bill C-28 received support from all parties. The bill was introduced on June 17th of this year and came into force only six days later.

Although I commend the members of the House of Commons and Senate for their swiftness in passing Bill C-28, it should have never reached that point. Parliament needed to be proactive instead of reactive. The duration between when s. 33.1 of the Criminal Code was ruled unconstitutional and the SCC ruling, allowed the defence of automatism to be used for those accused of a violent crime while intoxicated, to negate general intent or voluntariness.[10] A local example is the case of R v Duck.

A Case Close to Home

In R v Duck, Lucas Duck was originally charged with the death of Lorne Green.[11] Mr. Duck was caught by the police while he was beating Mr. Green to death. A few months before the offence, Mr. Duck experienced a traumatic brain injury that when coupled with the high level of intoxication on the day of the offence, made Mr. Duck incapable of forming the intent to commit murder according to the defence. A manslaughter plea put forth by the defence was accepted by the Crown. However, after the R v Sullivan SCC decision, Mr. Duck was given the chance to reconsider his guilty plea.[12] The defence submitted a motion to withdraw the guilty plea of Mr. Duck. Justice Greenberg, in the Court of Queen’s Bench of Manitoba, granted Mr. Duck’s motion to withdraw his guilty plea to manslaughter.[13]

In criminal law, there is a constant struggle between individual liberties and the needs of the collective. After R v Sullivan, I believe that the needs of society were left in a momentarily inferior position. Although the time between the SCC decision and the passage of Bill C-28 was relatively short, it still influenced our sense of justice across Canada. In the R v Duck case, by allowing Mr. Duck to withdraw his guilty plea, the courts will now let him use the defence of automatism. This does not mean that Mr. Duck will be successful with this defence, as Justice Greenberg alluded to.[14]However, I think it is fair to say that he has a better chance of receiving a lighter sentence, ceteris paribus. Given the SCC decision, according to the law, Justice Greenberg made the right decision. Although I agree with his decision, I believe the community is made worse off by a potentially lighter sentence for an individual who committed such a heinous crime. It is always a challenge to decide what the right length of punishment should be. I would imagine the frustration of family members of the deceased to see the accused plead guilty to a charge and then rescind it because of a momentary gap in what the law ought to be.

The Need to Be Proactive vs. Reactive

Members of Parliament had the chance to be proactive to avoid this situation. Even when ignoring other automatism defence cases over the last two and a half decades, the ONCAs R v Sullivan decision in 2020 should have been a wake-up call for Parliament. This would have made the law clear in relation to extreme intoxication for an automatism defence. It is possible that Parliament did not expect this decision from the SCC, however, in my opinion, the bill would have passed before the decision as well. Another possible reason why they did not update the Criminal Code in 2020 could be related to the pandemic. The focus was on protecting Canadians from the virus and most of their time was allocated to COVID-19 matters.

A point can be made that hindsight bias is playing too large of a role in my argument for Parliament to have been proactive. I would disagree with this assessment because years before the SCC decision, there have been women’s rights groups shown in the media that have already raised concerns about this potential decision. Members of the public and Parliament had an idea of the ramifications regarding the ruling that s. 33.1 is invalid. Another objection that one might have, is that the few court decisions between the SCC ruling and Bill C-28 passage, are not worthy of discussion. By making this argument, one disregards the pain and suffering of those family members who may now feel like true justice will no longer be achieved. Even a small window between judicial and legislative decisions can have a profound impact across the country.


After the R v Sullivan SCC decision, the use of automatism under certain circumstances was widened. Although Parliament acted swiftly to amend the Criminal Code, it still allowed for decisions to benefit the accused in cases across Canada. In my opinion, these decisions, like the one in R v Duck, hurt the collective well-being by allowing the possibility of lighter sentences. I agree with Justice Greenberg’s decision given the state of the law. However, it should have never reached that point. Parliament had known for years of the possibility of a SCC decision regarding the automatism defence. They should have acted proactively and in not doing so, the time between the SCC decision and the Bill C-28 passage created negative consequences.

[1] R v Daviault, [1994] 3 SCR 63 at 64, 118 DLR (4th) 469 [Daviault]. [2] Criminal Code, RSC 1985, c C-46, s 33. [3] R v Sullivan, 2022 SCC 19 at para 1 [Sullivan]. [4] Ibid at para 2. [5] Ibid at para 3. [6] Ibid at para 98. [7] Ibid at para 99. [8] Ibid. [9] Department of Justice Canada, Joint Statement by Minister Lametti and Minister Ien on Bill C-28 on extreme intoxication receiving Royal Assent and coming into force, (23 June 2022). [10] Criminal Code, RSC 1985, c C-46, s 33. [11] R v Duck, 2022 MBQB 181 at para 1 [Duck]. [12] Ibid at para 4. [13] Ibid at para 22. [14] Ibid at para 21.


The views and opinions expressed in the blogs are the views of their authors, and do not represent the views of the Faculty of Law, or the University of Manitoba. Academic Members of the University of Manitoba are entitled to academic freedom in the context of a respectful working and learning environment.


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