C.C. S. 33.1 UNCONSTITUTIONAL

By: Geoff Read

The issue of mens rea and voluntary intoxication has vexed the law for a long time and has engaged something of a contest between the legislative and judicial branches of government.  The latest tweak has just come down from the Supreme Court of Canada.    

To turn back the clock for a moment, the House of Lords in a memorable decision on April 13, 1976 addressed the question of intoxication and drunkenness in the case of DPP v Majewski, [1977] AC 443, [1976] UKHL 2.  Robert Stefan Majewski had been convicted on three counts of assault occasioning actual bodily harm and three counts of assault on a police constable in the execution of his duty.  The Lord Chancellor observed that Majewski had been consuming drugs without a prescription and had also consumed alcohol when he got involved in a bar room melee that then involved the police. That led to him being charged.  

Lord Elwyn-Jones said the appellant's case was that when the assaults were committed, he was acting under the influence of a combination of drugs (not medically prescribed), and alcohol to such an extent that he did not know what he was doing, and remembered nothing of the incidents that had occurred.  After medical evidence had been called by the defence as to the effect of the drugs and drink the appellant had taken, the learned judge in the absence of the jury ruled that he would direct the jury in due course that on the charges of assault or assault occasioning actual bodily harm, the question of whether he had taken drink or drugs was immaterial. The learned judge directed the jury that in relation to an offence not requiring a specific intent, the fact that a man has induced in himself a state in which he is under the influence of drink and drugs, is no defence. Since the counts for assault did not require proof of any specific intent, the fact that the accused might have taken drink or drugs was irrelevant, provided the jury was satisfied that the state which he was in, as a result of drink and drugs or a combination of both was self-induced. He concluded ". . . upon my direction in law you can ignore the subject of drink and drugs as being in any way a defence to any one or more of the counts in this Indictment". In dealing with assault, he directed that it meant some blow or kick, "not something which is purely accidental".

Dr. Bird, called for the defence, said that the appellant had been treated for drug addiction since November 1971. There was no history in his case of psychiatric disorder or diagnosable mental illness, but Majewski had a personality disorder. Dr. Bird said that barbiturates and alcohol are known to potentiate each other and to produce rapid intoxication and affect a person's awareness of what was going on.  In the last analysis, one could be rendered unconscious and a condition known as pathological intoxication can occur, but it is uncommon and there are usually well-marked episodes.  It would be possible, but unlikely, to achieve a state of automatism as a result of intoxication with barbiturates and alcohol or amphetamines and alcohol. Aggressive behaviour is greater. After a concentration of alcohol and barbiturates, it was not uncommon for " an amnesic patch " to ensue. In cross-examination, Dr. Bird said he had never in practice come across a case of "pathological intoxication " and it is an unusual condition.  It is quite possible that a person under the influence of barbiturates, amphetamines and alcohol or all three in combination, may be able to form certain intentions and execute them, punching and kicking people, and yet afterwards be unable to remember anything about it. During such " disinhibited" behaviour, he may do things which he would not do if he was not under the influence of the various sorts of drink and drugs about which evidence has been given.  

Suffice it to say, their Lordships unanimously dismissed Majewski’s appeal after a thorough review and analysis of the relevant law, during which Lord Edmund-Davies, commenting on a case called Lipman, said “The undeviating application of logic leads inexorably to the conclusion that a man behaving even as Lipman unquestionably did must be completely discharged from all criminal liability for the dreadful consequences of his conduct.  It was, as I recall, submissions of this startling character which led my noble and learned friend, Lord Simon of Glaisdale, to comment trenchantly to appellant's counsel, " It is all right to say ' Let justice be done though the heavens fall'.  " But you ask us to say ' Let logic be done even though public order be "'threatened', which is something very different".  Are the claims of logic, then, so compelling that a man behaving as the Crown witnesses testified Majewski did must be cleared of criminal responsibility? As to this, Lawton L.J. rightly said ...: " Although there was much reforming zeal and activity in the 19th century, Parliament never once considered whether self-induced  intoxication should be a defence generally to a criminal charge. It would have been a strange result if the merciful relaxation of a strict  rule of law has ended, without any Parliamentary intervention, by  whittling it away to such an extent that the more drunk a man became, provided he stopped short of making himself insane, the better chance he had of an acquittal".  If such be the inescapable result of the strict application of logic in this branch of the law, it is indeed not surprising that illogicality has long reigned, and the prospect of its dethronement must be regarded as alarming.” (emphasis added)

So, simply understood, the law drew its policy line in the sand and didn’t recognize an absolute defence of voluntarily induced intoxication.  Canadian jurisprudence also continued to allow it only for specific-intent offences but not for those of general intent: see, for example, R. v. Robinson, [1996] 1 S.C.R. 683, and R. v. Tatton, [2015] 2 S.C.R. 574.  Then, in Canada, came R. v. Daviault, [1994] 3 S.C.R. 63 that decided that the common law rule infringed s.7 of the Charter so that intoxication could be a defence even to general intent offences if the accused were so intoxicated as to amount to automatism.  So spoke the judicial branch of government.  The legislative branch responded in short order when Parliament in 1995 enacted s. 33.1 of the Criminal Code which removed the defence of lack of general intent or voluntariness required to commit crimes of personal violence where the accused departs markedly from the standard of reasonable care generally recognized in Canadian society by reason of self-induced intoxication. 

Courts around the country divided on the constitutionality of s. 33.1 but the Supreme Court of Canada has at last weighed-in to settle the question, en banc and unanimously, in the companion cases of R. v. Brown, 2022 S.C.C. 18,  and R. v. Sullivan and R. v. Chan, 2022 S.C.C. 19, all released May 13, 2022: it is unconstitutional.  The judgement of the Court in each case was delivered by Kasirer J.  Parenthetically, note that Lindsay Daviau, who recently joined the Crown’s Office here in Hamilton, appeared for the one of the interveners, the Criminal Lawyers’ Association (Ontario).

In Brown, Kasirer J. said (at para. 1) that “Following a party at which he had consumed alcohol and “magic mushrooms”, Matthew Winston Brown violently attacked Janet Hamnett, a person he did not know and who had done nothing to invite the assault. At the time, Mr. Brown was in what the trial judge described as a “substance intoxication delirium” that was so extreme as to be “akin to automatism”... While capable of physical movement, he was in a delusional state and had no willed control over his actions. Mr. Brown’s extreme intoxication akin to automatism was brought about by his voluntary ingestion of the magic mushrooms which contained a drug called psilocybin. Mr. Brown was acquitted at trial. The Alberta Court of Appeal set aside that verdict and convicted him of the general intent offence of aggravated assault.

Likewise, in the Sullivan and Chan cases, Kasirer J. said (at paras. 1-4) that “[1] After having voluntarily taken an overdose of a prescription drug and falling into an impaired state, David Sullivan attacked his mother with a knife and injured her gravely. He was charged with several offences, including aggravated assault and assault with a weapon. In unrelated circumstances, Thomas Chan also fell into an impaired state after he voluntarily ingested “magic mushrooms” containing a drug called psilocybin. Mr. Chan attacked his father with a knife and killed him and seriously injured his father’s partner. He was tried for manslaughter and aggravated assault. 
[2] In their different circumstances, both Mr. Sullivan and Mr. Chan argued at their respective trials that their state of intoxication was so extreme that their actions were involuntary and could not be the basis of a guilty verdict for the violent offences of general intent brought against them. Mr. Chan argued in particular that an underlying brain injury was the significant contributing cause of his psychosis, rather than his intoxication alone, such that he was not criminally responsible pursuant to s. 16 of the Criminal Code... 
[3] In the case of Mr. Sullivan, the trial judge accepted the accused was acting involuntarily but decided that the defence of extreme intoxication akin to automatism was not available by virtue of s. 33.1 of the Criminal Code. Mr. Sullivan was convicted of the two assault charges. In the case of Mr. Chan, the trial judge dismissed a constitutional challenge to s. 33.1. Mr. Chan’s brain trauma was held to be a mental disorder, but not the cause of the incapacity, which was the result of the voluntary ingestion of magic mushrooms. The trial judge in his case rejected his argument under s. 16. He was convicted of manslaughter and aggravated assault. 
[4] Their appeals were heard together. The Court of Appeal for Ontario held that s. 33.1 violated ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms and was not saved by s. 1. As a result, both Mr. Sullivan and Mr. Chan were entitled to raise the defence of automatism. Based on the findings at his trial, Mr. Sullivan’s convictions were set aside and acquittals entered. The Court of Appeal ordered a new trial for Mr. Chan because no finding of fact had been made in respect of non-mental disorder automatism in his case.”

Now, to constrain the ambit of these decisions, note that Justice Kasirer emphasiszed (at Brown para. 4) that “These are not drunkenness cases. The accused in each of these appeals consumed drugs which, they argued, taken alone or in combination with alcohol, provoked psychotic, delusional and involuntary conduct, which are reactions not generally associated with drunkenness.”  He added (at para. 5) that “ It thus bears emphasizing that Mr. Brown was not simply drunk or high. To be plain: it is the law in Canada that intoxication short of automatism is not a defence to the kind of violent crime at issue here. The outcome of the constitutional questions in these appeals has no impact on the rule that intoxication short of automatism is not a defence to violent crimes of general intent in this country.”

It is also instructive that in the Sullivan and Chan cases Justice Kasirer 
resolved an important stare decisis question (in paras. 33 and 34):  “[33] There are two remaining issues in these appeals: 
1. On what basis can a declaration issued by a superior court pursuant to s. 52(1) of the Constitution Act, 1982 be considered binding on courts of coordinate jurisdiction? ... [34] For the reasons that follow, I conclude on the first issue that the ordinary rules of stare decisis and judicial comity apply to declarations of unconstitutionality issued by superior courts within the same province...”

So, the courts have struck again and reversed Parliament.  Daviault did not completely alter the common law rule that was upheld in Majewski that intoxication is not a defence to crimes of general intent, but it did  - and, thanks to Sullivan, Brown and Chan, still does – allow self-induced intoxication amounting to automatism to be a defence.  Remember, however, as Daviault held, that the burden is on the accused to prove the defence on a balance of probabilities and the accused’s testimony would have to be supported by expert evidence.  Stay tuned for any response from Parliament. n

Geoffrey Read is a sole practitioner in Hamilton. He is certified by the Law Society of Ontario as a Specialist in Criminal Law.

He can be reached at:
20 Hughson Street South, Suite 612
Hamilton, Ontario
L8N 2A1