Like many of you, my social media timelines were recently inundated with headlines such as:

Ontario Court of Appeal rules intoxication can be used as a defence in sexual assault and violent crime cases

 “Ontario Court of Appeal passes new ruling that is yet another assault on women! Intoxication is now an excuse for sexual assault

A painful step backwards: Calls for appeal of intoxication ruling in Ontario echo throughout Canada

Women’s group angered by ‘intoxication’ ruling

One CTV news article even stated verbatim “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…”.

Understandably, many were upset by news of this ruling which seemingly allowed an offender to use intoxication as a defence to a charge of sexual assault. I, too, was shocked by the headlines. Out of both curiosity and concern, I decided to read through the extensive 110-page decision released by the Ontario Court of Appeal. Below are my thoughts and understandings.

The Appeal Court’s decision arose from a pair of separate cases in which two men, both high on drugs, either killed or injured close relatives.[1] Neither case involved sexual assault or alcohol.

In R v Chan, Mr. Chan consumed “magic mushrooms” which induced a state of psychosis. While in this state, Mr. Chan believed he was a god and his father the devil. He attacked and killed his father, and seriously injured his father’s partner.

In R v Sullivan, Mr. Sullivan consumed a heavy dose of prescription medication in an attempt to take his own life. Instead, the pills induced a state of psychosis and Mr. Sullivan believed he had captured an alien. He attacked and seriously injured his elderly mother.

In order to understand the lengthy decision, one must first understand the following concepts:

  • Two components necessary for someone to be guilty of a crime:
    • Actus reus: having actually and voluntarily done the physical act in question.
    • Mens rea: having had the intention or knowledge to commit the act.
  • Automatism: a state of impaired consciousness, rather than unconsciousness, in which an individual, though capable of action, has no voluntary control over that action. There are two branches to the defence of automatism: (1) mental disorder automatism codified in section 16 of the Criminal Codeand, (2) non-mental disorder automatism common law defence. Mr. Chan and Mr. Sullivan each relied on the common law defence (non-mental disorder).
  • Section 33.1 of the Criminal Code: prohibited an accused from using the defence of automatism when it was self-induced.

Both Mr. Chan and Mr. Sullivan alleged that they were in a state of automatism at the time of the attacks due to the substances they had consumed.

The Court declared that section 33.1 violated two sections of the Charter: the right to life, liberty and security of the person (section 7), and the right to the presumption of innocence (section 11(d)). They further found that it could not be saved under section 1 of the Charter.

The Court concluded that, while there were no real valid benefits to the law, the harm was massive. As the Court states:

“Put simply, the deleterious effects of section 33.1 include the contravention of virtually all the criminal law principles that the law relies upon to protect the morally innocent, including the venerable presumption of innocence”.

The key takeaways from the case are summarized as follows:

  • There were two cases decided by the Ontario Court of Appeal. Neither involved sexual assault nor alcohol.
  • Being intoxicated is not a defence to most crimes, including sexual assault and other violent crimes. This was not changed by either case.
  • The only form of intoxication that can potentially be used as a defence is “intoxication akin to automatism”. This means someone so intoxicated that they no longer have free will as their mind and body are completely out of their control.
  • The Ontario Court of Appeal overturned a law that held people responsible for violent crimes even if they had no control or understanding that they were committing them, so long as it was a result of self-induced intoxication. The whole reasoning for overturning the law was because it was punishing individuals for actions which they were not morally responsible for. Such a law violates the principles of fundamental justice. Notably, the Canadian Civil Liberties Association was one of the groups fighting to get the law overturned.
  • The Court noted in its decision that there is evidence that it is physiologically impossible for alcohol to make someone so intoxicated that the defence of extreme intoxication can apply.
  • This defence is an extremely difficult one to successfully make out. The burden falls on the accused to argue the defence. To argue the defence of intoxication akin to automatism, an accused must provide medical expert evidence proving that they had no control over themselves at the time of the offence.

The R v Sullivan decision is available online for those who wish to read the entire ruling. Though lengthy, the decision offers clear and compelling reasoning as to why section 33.1 of the Criminal Code had to be found to be unconstitutional.


[1]R v Sullivan and R v Chan, 2020 ONCA 333.

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