Section 33.1 of the Criminal Code prevents an accused from raising the defence of self-induced intoxication in certain circumstances.
In the recent decisions of R. v. Brown and R. v. Sullivan, heard together, the Supreme Court of Canada declared s. 33.1 to be unconstitutional and of no force. The Court held that s. 33.1 breaches rights guaranteed under the Canadian Charter of Rights and Freedoms.
Section 33.1 of the Criminal Code prohibits using self-induced intoxication as a defence
Section 33.1 of the Criminal Code applies to offences that involve an assault or other interference (or threat of interference) with the bodily integrity of another person.
Section 33.1 prohibits an accused from asserting a lack of intent to commit the offence due to self-induced intoxication in circumstances where the accused departed markedly from the standard of reasonable care generally recognized in Canadian society.
Before the enactment of s. 33.1, the automatism defence rarely succeeded because it was difficult to prove in court. It could not be relied on by an accused that was simply intoxicated. To avail oneself of the defence, the accused needed to establish that they were operating under such extreme intoxication that there was an absence of awareness akin to a state of automatism. Evidence of such an extreme state of intoxication was very rarely advanced.
Three people were convicted of offences after becoming voluntarily intoxicated
The decisions of the Supreme Court cited above relate to acts committed by three people.
In the first case, on appeal from Alberta, Mr. Brown consumed alcohol and magic mushrooms at a house party. In a psychotic state, he broke into the nearby house of a stranger and attacked the occupant. He was later convicted of breaking and entering and aggravated assault, even though expert evidence adduced at trial confirmed that the accused had no voluntary control over his conduct.
In the second case, on appeal from Ontario, Mr. Sullivan voluntarily ingested an overdose of prescription medication. He fell into an impaired state, attacked his mother with a knife, and gravely injured her. He was convicted of assault charges.
In the third case, also on appeal from Ontario, Mr. Chan voluntarily consumed magic mushrooms, then killed his father and seriously injured his father’s partner. He was convicted of manslaughter and aggravated assault.
The accused individuals argued that section 33.1 of the Criminal Code, which deprived them of the ability to rely on the defence of self-intoxication, violated the Canadian Charter of Rights and Freedoms.
Section 33.1 deprives individuals of their liberty, violating the principles of fundamental justice
The Court found that s. 33.1 of the Criminal Code breaches s. 7 of the Charter, which provides that:
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
The Court explained that it is a principle of fundamental justice that proof of penal negligence is minimally required for a criminal conviction unless the specific nature of the crime demands subjective fault. In other words, some form of intention to commit a crime is required.
In contrast, section 33.1 imposes criminal liability where a person’s intoxication carries no objective foreseeability of harm. The Court stated:
33.1 deems a person to have departed markedly from the standard of care expected in Canadian society whenever a violent act occurs while the person is in a state of extreme voluntary intoxication akin to automatism. This is so even where a loss of control or awareness of one’s behaviour and a risk of harm was unforeseeable and even where the accused’s conduct did not in fact depart markedly from the standard of a reasonable person.
Section 33.1 also deprives individuals of the right to be presumed innocent until proven guilty
The Court also held that s. 33.1 of the Criminal Code breaches the right to be presumed innocent until proven guilty guaranteed by s. 11(d) of the Charter.
Any person charged with an offence has the right
…
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal; …
For an accused to be convicted, s. 11(d) requires the Crown to prove all the essential elements of the offence, including the necessary element of intent, beyond a reasonable doubt. The Court held “that s. 33.1 improperly substitutes proof of self‑induced intoxication for proof of the essential elements of an offence, contrary to s. 11(d) of the Charter.”
Supreme Court declares s. 33.1 to be unconstitutional and of no force
The Crown was not able to convince the Court that the violations of Charter rights brought by section 33.1 were reasonable and demonstrably justified under s.1 of the Charter, which provides that the Charter rights are guaranteed subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
In considering s. 33.1, the Court acknowledged the important purposes pursued by Parliament but determined that the risk of conviction of someone who had no reason to believe their voluntary intoxication would result in a violent consequence was “too high a cost”. As a result, the Court declared s. 33.1 of the Criminal Code to be unconstitutional and of no force. The convictions of the accused were set aside.
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