No, the government didn't pass a law allowing intoxication as a defence for sexual assault.

Humza Mehdi Khan | October 6th, 2020

If you keep up to date with political and legal developments or even have politically active friends on social media, you may have seen a post or article over the summer with a title something like, “Ontario passes law allowing intoxication as a defence for sexual assault”.

Obviously, such a headline is very disturbing for anyone concerned about sexual violence in Canada. However, this case and the outrage surrounding it are in fact a prime example of misinformation surrounding legal issues in Canada. The true nature of this case cannot be easily summarised in a tweet or Instagram post, nor can it be accurately conveyed through news outlets. Here I will do my best to lay out an unbiased account of the actual facts of this case and my opinion on its ramifications, both ethical and legal.

First, let's talk about what this decision was not. It was not a law passed, nor did it directly involve sexual assault or alcohol. The one-sentence summary of the case would be the following: the Ontario Appeals court ruled that not allowing automatism as a defence for violent crimes was unconstitutional. For all, other than the legally informed readers of this blog, that sentence is probably incomprehensible, so let’s break it down.

The first term you have to understand is automatism. Automatism is a very specific and very rare defence in the legal system. In general, automatism is a state where a person is completely unaware and not responsible for their actions. In such a state, the person often acts involuntarily and is unaware of what is happening or what they are doing. One of the most well-known examples was that of Kenneth Parks, who was found not guilty of killing his in-laws as it was shown that at the time of the crime he was sleepwalking and completely unaware of what he was doing. (1)

A lot of conditions can constitute automatism, whether they be a traumatic brain injury, conditions such as the aforementioned sleepwalking, mental conditions such as schizophrenia or intoxication. (2) It is very important to understand that automatism is NOT SIMPLY BEING DRUNK. Being mildly intoxicated doesn’t take away your awareness of your actions or your ability to voluntarily choose your actions. Even if this decision stands, committing violence while drunk is still illegal in the vast majority of cases. This decision only applies to extreme very rare intoxication and causes a person to be unable to control their actions.

The second question to answer is why automatism isn’t allowed as a defence for violent crimes in the first place. The answer is a 1994 case R v Daviault which is where a connection to sexual assault can be drawn. Daviault was a chronic alcoholic accused of sexually assaulting an elderly woman. However, in a trial, it was revealed that Daviault had consumed eight beers and a whole bottle of brandy before the assault took place. Daviault’s attorney team argued that with that level of intoxication, which Daviault described as being blackout drunk, he could not have had any intent or voluntariness to commit the crime.

The trial judge agreed that that level of intoxication (enough to kill or cause coma in an ordinary person) would raise a reasonable doubt about the accused’s ability to form any intent. (3) However, a long-standing legal precedent the Leary rule prevented this defence. The Leary rule was a legal precedent set through a 1970’s case. The rule essentially stated that voluntary intoxication could not be used for many crimes which fell under the definition of general intent crimes. When appealed to the supreme court they found the Leary rule to be unconstitutional and overturned it, allowing the acquittal of Daviault to stand. (4)

Following Daviault’s acquittal, there were large amounts of public backlash, leading parliament to pass section 33.1. Section 33.1 was a law that prevents voluntary automatism from being used as a defence for violent crimes. (5) Now fast forward to today and another pair of cases have gone before the Ontario Court of Appeals challenging s 33.1. Thomas Chan consumed magic mushrooms and in an unforeseeable reaction, the drugs induced psychosis which caused him to stab and kill his father without any motive. David Sullivan attempted to kill himself by consuming an excessive amount of prescription drugs which also induced psychosis and caused him to stab his mother. (5) However, both were convicted because s 33.1 prevented voluntary intoxication leading to automatism from being used as a defence for their crimes. (5)

Both appealed all the way to the Ontario Court of Appeals and their cases were decided together. The appeals court is not responsible for deciding whether or not they were in a state of automatism or not, that was for the trial judge to decide. This court was responsible for deciding whether s 33.1 violated the Charter or not. Ultimately the appeals judge, David Paciocco, found that s 33.1 did indeed violate the Charter. Specifically, by allowing convictions without sufficient proof that the offence was voluntary, Paciocco found a violation of s.7 and s.11(d) of the Charter; which includes the right to life, liberty, and security of the person as well as the presumption of innocence until proven guilty. This was still not the central issue, as other judges had concluded the same.

The real central issue was whether this violation was permitted under s.1 (the reasonable limits clause). If the crown could show that the violations could fit under a reasonable limit of the Charter, s 33.1 would not need to be overturned and the convictions of Sullivan and Chan could stand. However, Paciocco and the concurring judge Lauwers both found that it could not be saved by s. 1. Both found that the application of s 33.1 was too broad- demonstrated by the fact that it affected Chan and Sullivan’s cases which was probably not the objective of the original lawmakers. They also found other issues such as the law not being minimally impairing and not really deterring violence; it isn’t reasonable to say that people will avoid getting drunk because they may be liable under s 33.1. So, the Ontario Appeals court ruled the law was unconstitutional and should be struck down. (5)

I take substantial issue with both the media's portrayal of this story and the public reaction. The fact that some people understood the news as a new law being passed that allows intoxication to be a defence for sexual assault is ridiculous. Every part of that belief is wrong. Although there may be a slight possibility this defence may be abused, retaining an unconstitutional unjust law is not the solution. It may be possible that some rapists have abused the defence of insanity to be acquitted but we don’t remove the defence of mental illness altogether. Parliament can and should come up with new ways to protect women that don’t catch people like Chan and Sullivan in the crossfire. When the outrage around this case erupted, many people signed petitions demanding the crown appeal to the Supreme Court. Herein lies the ethical issues with the handling of the case. To sign a petition asking for an appeal without knowing the facts of the case is at best ignorant and at worse ethically abhorrent.

This is not a law, it is a court case. If the decision is appealed and overturned, which many who campaigned against it would celebrate, two men’s lives will be ruined. Chan and Sullivan whose only mistakes were taking magic mushrooms and trying to commit suicide respectively would have to face many years in prison on top of the inevitable trauma of losing loved ones due to their actions. At Chan’s trial, the judge said: “Mr. Chan is not a danger to the public. He is a good kid who got super high and did horrific things while experiencing a drug-induced psychosis”(5). These are the individual lives at stake when the media screws up coverage and the public don’t do their research. We cannot allow ourselves to fall victim to the blind “tough on crime” rhetoric being masked by the new façade of preventing sexual violence. Of course, preventing sexual violence is one of the most important objectives in the legal system, which is why we should accomplish it with targeted laws that don’t destroy the lives of the innocent.

Endnotes

1. Jones, Robert. "R v Parks Case Brief." CanLII Connects. Last modified November 2014. https://canliiconnects.org/en/summaries/31806.

2. "DEFINITIONS - Response to the 14th Report of the Standing Committee on Justice and Human Rights - Review of the Mental Disorder Provisions of the Criminal Code." Canadian Department of Justice. Last modified November 7, 2002. https://www.justice.gc.ca/eng/rp-pr/cp-pm/cr-rc/md-tm/defin.html.

3. Jones, Robert. "R v Daviault Case Brief." CanLII Connects. Last modified November 2014. https://canliiconnects.org/en/summaries/31810.

4. Nowakowska, Patrycja. "Extreme drunkenness = defense: carving out an exception to the Leary rule." CanLII Connects. Last modified March 2015. https://canliiconnects.org/en/summaries/36533.

5. R. v. Sullivan, 2020 ONCA 333