R. v. Sullivan
The case involves two different defendants, Sullivan and Chan. Their cases are unrelated but were arguing the same issue and have come before the Supreme Court together.
Section 33.1 – Extreme Intoxication
When defence not available
33.1(1) It is not a defence to an offence referred to in subsection (3) that the accused, by reason of self-induced intoxication, lacked the general intent or the voluntariness required to commit the offence, where the accused departed markedly from the standard of care as described in subsection (2).
Criminal fault by reason of intoxication
(2) For the purposes of this section, a person departs markedly from the standard of reasonable care generally recognized in Canadian society and is thereby criminally at fault where the person, while in a state of self-induced intoxication that renders the person unaware of, or incapable of consciously controlling, their behaviour, voluntarily or involuntarily interferes or threatens to interfere with the bodily integrity of another person.
(3) This section applies in respect of an offence under this Act or any other Act of Parliament that includes as an element an assault or any other interference or threat of interference by a person with the bodily integrity of another person.
Sullivan voluntarily overdosed on prescription medication and then attacked his mother with a knife, gravely injuring her. Sullivan was charged with several offences including assault with a weapon and aggravated assault.
Chan voluntarily took shrooms laced with a drug called psilocybin. He attacked and killed his father with a knife and seriously injured his father’s partner. He was charged with manslaughter and aggravated assault.
Both parties argued at their respective trials that their state of intoxication was so extreme it was akin to automatism. Chan also argued that he had an underlying brain condition that contributed to his psychosis and so he was not criminally responsible.
Both parties were convicted. In Sullivan’s case the judge found that Sullivan was acting involuntarily when he attacked his father and step-mother, but that he could not use the defence of automatism because of s. 33.1.
They both appealed and the Court of Appeals for Ontario held that s. 33.1 violates the sections 7 and 11(d) of the Canadian Charter of Rights and Freedoms and must be struck down.
Sullivan’s conviction was set aside, and an acquittal entered. A new trial was ordered for Chan.
The Crown appealed both cases to the SCC. The SCC denied the appeal and said the Court of Appeal had it correct. Section 33.1 is unconstitutional as it violates the Charter and is therefore of no force and affect. The SCC confirmed the Court of Appeal’s decision in both cases and upheld Sullivan’s acquittal and ordered that the new trial go ahead for Chan.
Other Related Cases
The Court in Daviault confirmed the common law rule that intoxication is not a defence to crimes of general intent, but a majority recognized that the Charter mandated an exception where intoxication is so extreme that an accused falls into a condition akin to automatism and is incapable of voluntarily committing a guilty act or of having a guilty mind.
R v. Brown
The SCC said “I specifically leave intact the common law rule that drunkenness, absent clear scientific evidence of automatism, is not a defence to general intent crimes, including crimes of violence such as sexual assault.”
The Supreme Court held that section 33.1 of the Criminal Code violates the Charter and therefore must be struck down.
This means that the defence is now available for violent offences where the accused voluntarily became intoxicated.
The court made it clear that this does not mean that drunkenness is a defence to sexual assault. For an individual to use this defence they must be something more than simply drunk or high. They must be so intoxicated that they have no voluntary control over their actions.