Matthew Winston Brown Appellant v. Her Majesty The Queen, 2022 SCC 18

SUPREME COURT OF CANADA Citation: R. v. Brown, 2022 SCC 18 Appeal Heard: November 9, 2021 Judgment Rendered: May 13, 2022 Docket: 39781 Between: Matthew Winston Brown Appellant and Her Majesty The Queen Respondent - and - Attorney General of Canada, Attorney General of Ontario, Attorney General of Manitoba, Attorney General of British Columbia, Attorney General of Saskatchewan, Canadian Civil Liberties Association, Empowerment Council, Criminal Lawyers’ Association and Women’s Legal Education and Action Fund Inc.

Interveners Coram: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ. Reasons for Judgment: (paras. 1 to 168) Kasirer J. (Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Jamal JJ. concurring) Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports .

Matthew Winston Brown Appellant v. Her Majesty The Queen Respondent and Attorney General of Canada, Attorney General of Ontario, Attorney General of Manitoba, Attorney General of British Columbia, Attorney General of Saskatchewan, Canadian Civil Liberties Association, Empowerment Council, Criminal Lawyers’ Association and Women’s Legal Education and Action Fund Inc. Interveners Indexed as: R. v. Brown 2022 SCC 18 File No.: 39781. 2021: November 9; 2022: May 13.

Present: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ. on appeal from the court of appeal of alberta Constitutional law — Charter of Rights — Fundamental justice — Presumption of innocence — Reasonable limits —Section 33.1 of Criminal Code preventing accused from raising common law defence of self-induced intoxication akin to automatism —Whether s. 33.1 violates principles of fundamental justice or presumption of innocence — If so, whether infringement justified —Canadian Charter of Rights and Freedoms, ss. 1, 7, 11(d) — Criminal Code, R.S.C. 1985, c. C-46, s. 33.1.

At a house party, B consumed alcohol and magic mushrooms. Magic mushrooms contain psilocybin, an illegal drug that canbring about hallucinations. B lost his grip on reality and left the house. B was not simply drunk or high: while capable of physicalmovement, he was in a psychotic state and had no willed control over his actions. He broke into the nearby house of a stranger andattacked the occupant, causing permanent injuries. He then broke into another residence and the occupants called the police.

B wascharged with break and enter and aggravated assault, and with break and enter and mischief to property over $5,000. At trial, B argued that he was not guilty of the offences by reason of automatism caused by the consumption of psilocybin.Expert evidence adduced at trial confirmed that B had no voluntary control over his conduct at the time. The Crown invoked s. 33.1 ofthe Criminal Code as a means of precluding B from relying on self-induced intoxication akin to automatism as a defence to the charge ofaggravated assault. Parliament added s. 33.1 to the Criminal Code in response to R. v.

Daviault, (SCC), [1994] 3 S.C.R.63. The Court in Daviault confirmed the common law rule that intoxication is not a defence to crimes of general intent, but a majorityrecognized that the Charter mandated an exception where intoxication is so extreme that an accused falls into a condition akin toautomatism and is incapable of voluntarily committing a guilty act or of having a guilty mind.

Section 33.1 was enacted to address theconstitutional failings identified by the majority in Daviault in a manner that would properly reflect the blameworthiness of theextremely self-intoxicated accused identified by the dissent.

Section 33.1 blocks the defence of automatism for general intent crimesdesignated in s. 33.1(3), including aggravated assault and sexual assault. B challenged the constitutionality of s. 33.1. The voir dire judge concluded that s. 33.1 violates the principles offundamental justice and the presumption of innocence guaranteed by ss. 7 and 11(

d) of the Charter and that the violations are notjustified pursuant to s. 1 of the Charter. He declared s. 33.1 to be of no force and effect pursuant to s. 52(1) of the Constitution Act, 1982.As a result, B was entitled to raise the defence of extreme intoxication akin to automatism at trial. The trial judge found that the defencewas an answer to both charges and entered acquittals. The Court of Appeal reversed the declaration that s. 33.1 was of no force or effect,set aside the acquittal on the count of break and enter and aggravated assault, and entered a conviction for that offence.

The acquittal onthe mischief charge was unaffected by s. 33.1 and not appealed. Held: The appeal should be allowed.

Section 33.1 of the Criminal Code should be declared unconstitutional and of no forceor effect pursuant to s. 52(1) of the Constitution Act, 1982. The acquittal on the count of unlawful break and enter of a dwelling houseand committing aggravated assault therein should be restored. This is not a drunkenness case. B consumed a drug which, taken in combination with alcohol, provoked psychotic,

delusional and involuntary conduct. Criminal liability for violent conduct produced by alcohol alone, short of the psychotic state akin to automatism experienced by B, is not in issue. The outcome of the declaration of unconstitutionality with respect to s. 33.1 has no impact on the rule that intoxication short of automatism is not a defence to violent crimes of general intent, such as assault or sexual assault. While s. 33.1 is unconstitutional, there may well have been other paths for Parliament to achieve its legitimate aims connected to combatting extreme intoxicated violence.

The sense that an accused who acts violently in a state of extreme self-induced intoxication is morally blameworthy is by no means beyond the proper reach of the criminal law. Protecting the victims of violent crime — particularly in light of the equality and dignity interests of women and children who are vulnerable to intoxicated sexual and domestic violence — is a pressing and substantial social purpose.

And it was not impermissible for Parliament to enact legislation seeking to hold an extremely intoxicated person accountable for a violent crime when they chose to create the risk of harm by ingesting intoxicants.

Section 33.1(1) of the Criminal Code eliminates the defence of self-induced intoxication akin to automatism applied to the violent offences identified in s. 33.1(3) where the accused departs markedly from the standard of care described in s. 33.1(2) .

Section 33.1 does not create a new predicate act offence of self-induced extreme intoxication or a new criminal negligence offence. The accused faces the full stigma of conviction and the full brunt of punishment for the general intent offence pointed to in s. 33.1(3).

Section 33.1 applies when three conditions are met: the accused was intoxicated at the material time, the intoxication was self-induced, and the accused departed markedly from the standard of reasonable care generally recognized in Canadian society by interfering or threatening to interfere with the bodily integrity of another person. When these three things are proved, it is not a defence that the accused lacked the general intent or the voluntariness required to commit the offence named in s. 33.1(3).

The requirements of s. 33.1 are not, together or separately, a measure of fault; they are conditions of liability, as the use of the word “while” in s. 33.1(2) confirms. The marked departure described in s. 33.1(2) depends on proof of two facts: that the person was in a state of self - induced intoxication that rendered them unaware of, or incapable of controlling, their behaviour, and that the violent act occurred while they were in that state. These facts are conditions of liability and not measures of fault because neither of them import a criminal negligence standard.

Thus s. 33.1 deems criminal fault for the violent offence to be present based on the accused’s choice to become intoxicated. What Parliament sought was to impose liability for the charged offence, and not the act of self-induced intoxication itself. The rights of victims of intoxicated violence , in particular the rights of women and children, should be considered at the justification stage under s. 1 of the Charter rather than informing the analysis of a possible breach of the accused’s rights under s. 7 .

Balancing competing Charter rights under the breach analysis should occur where the rights of the accused and another party conflict and are directly implicated by state action. The equality, dignity and security interests of vulnerable groups informed the overarching public policy goals of Parliament but they are best considered under s. 1 .

Section 33.1 breaches s. 7 of the Charter by allowing a conviction without proof of mens rea or proof of voluntariness. It is a principle of fundamental justice that proof of penal negligence, in the form of a marked departure from the standard of a reasonable person, is minimally required for a criminal conviction, unless the specific nature of the crime demands subjective fault.

Section 33.1 requires an intention to become intoxicated but intention to become intoxicated to any degree suffices — it matters little that a person did not foresee their loss of awareness or control, and nothing is said about the licit or illicit nature of the intoxicant or its known properties. For this reason, while s. 33.1 applies to those who recklessly invite their loss of control, it also captures unexpected involuntariness, for example an unexpected reaction to a prescribed pain medication. It also imposes criminal liability where a person’s intoxication carries no objective foreseeability of harm.

Furthermore, instead of asking whether a reasonable person would have foreseen the risk and taken steps to avoid it and whether the failure to do so amounted to a marked departure from the standard of care expected in the circumstances, s. 33.1 deems a marked departure to be present whenever a violent act occurs while the person is in a state of extreme voluntary intoxication akin to automatism. Since s. 33.1 allows the court to convict an accused without proof of the constitutionally required mens rea , it violates s. 7 of the Charter .

Section 33.1 also directs that an accused person is criminally responsible for their involuntary conduct. Because involuntariness negates the actus reus of the offence, involuntary conduct is not criminal, and the law recognizes that voluntariness for the conviction of a crime is a principle of fundamental justice.

Section 33.1 also breaches the right to be presumed innocent until proven guilty guaranteed by s. 11(

d) of the Charter . To convict the accused, the Crown must prove all the essential elements of an offence beyond a reasonable doubt. A direction from Parliament that proof of one fact is presumed to satisfy proof of one of the essential elements of an offence can only comply with s. 11 (

d) if, in all cases, proof of the substituted fact leads inexorably to the conclusion that the essential element it replaces exists. Otherwise, the substitution may result in the accused being convicted, based on proof of the substituted fact, despite the existence of a reasonable doubt as to the essential element of the offence that it replaces.

Section 33.1 improperly substitutes proof of self-induced intoxication for proof of the essential elements of an offence. The fault and voluntariness of intoxication are substituted for the fault and voluntariness of the violent offence. This amounts to a constitutionally improper substitution. It cannot be said that in all cases under s. 33.1, the intention to become intoxicated can be substituted for the intention to commit a violent offence.

Parliament had before it a record that highlighted the strong correlation between alcohol and drug use and violent offences, in particular against women, and brought to the fore of Parliament’s attention the equality, dignity, and security rights of all victims of intoxicated violence. Parliament’s protective public goals cannot be understated: these interests bear meaningful attention at both principal steps in the s. 1 analysis. But the Crown must show on a balance of probabilities that the limits of ss. 7 and 11 (

d) brought by s. 33.1 are reasonable and demonstrably justified under s. 1 of the Charter . Given the patent risk that s. 33.1 may result in the conviction of an accused person who had no reason to believe that their voluntary intoxication would lead to a violent consequence, s. 33.1 fails at the proportionality step and thus cannot be saved under s. 1 . With respect to pressing and substantial purpose, the purpose of a provision must be properly identified with a view to justifying the infringement of the Charter , otherwise the exercise is not helpful for the balancing mandated by s. 1 .

In enacting s. 33.1, Parliament blocked the defence of automatism for the extremely intoxicated offender for two legitimate purposes: to protect the victims of extremely intoxicated violence, with particular attention to women and children whose equal place in society is compromised by sexual assault and other violent crimes of general intent in such circumstances; and to call offenders to answer for their choice to voluntarily ingest intoxicants where that choice creates a risk of violent crime.

The protective purpose is sufficiently pressing and substantial to warrant limiting Charter rights — the protection of the public from intoxicated offenders is of sufficient importance to warrant overriding a constitutionally protected right or freedom. As for the accountability objective, it rests on a philosophical idea that one should not be able to create the conditions of one’s own criminal defence to block liability for the crime committed. An individual is

responsible for their involuntary state because that person’s choice to ingest intoxicants and become extremely intoxicated ultimatelycreates a risk of violence. Stated in this manner, accountability in this context is pressing and substantial and fits appropriately within theOakes analysis. The deterrent and denunciating effects of s. 33.1 provide a rational connection to Parliament’s protective objective.

While itis true that s. 33.1 applies to an accused who could not have foreseen the risk of a loss of control or of bodily harm, it also extends tosituations in which there was a foreseeable risk of a loss of control and harm. Thus, an individual who consumes an intoxicant withpsychosis-inducing effects, including those who know they lost control of their conduct while in a drug-induced psychosis in the past,will be caught by s. 33.1. It is reasonable that Parliament would expect the provision to hold some modest deterrent effect for suchindividuals.

This deterrent effect dissuades those contemplating this kind of intoxication and, as such, s. 33.1 is rationally connected to itsprotective purpose. In addition, s. 33.1 is rationally connected to the objective of holding individuals accountable, in as full a manner aspossible, for the choice to become extremely intoxicated and the violence committed while in that state. It is obvious that a personforeclosed from advancing a defence that could result in an acquittal is held accountable.

Section 33.1 is, however, not minimally impairing of an accused’s ss. 7 and 11(

d) rights. There are less harmful means ofachieving Parliament’s objectives in a real and substantial manner. Options have been advanced that would trench less on the rights ofthe accused, including a stand-alone offence of criminal intoxication. Alternatively, a path to liability for the underlying violent offencemight be based on a criminal negligence standard that would allow the trier of fact to consider whether a loss of control and bodily harmwere both reasonably foreseeable at the time of intoxication.

This latter option could allow an accused to be convicted for the underlyingviolent act and not simply negligent or dangerous intoxication while achieving the minimum objective fault standard required by theConstitution.

Section 33.1 also fails on an assessment of the relative benefits and negative effects of the law under the Oakes test. At thefinal stage under s. 1, the question is whether there is proportionality between the overall effects of the Charter-infringing measure andthe legislative objectives. This invites the broadest assessment of the benefits of s. 33.1 to society, weighed against the cost of thelimitations to ss. 7 and 11(

d) of the Charter. With respect to its salutary effects, s. 33.1 gives expression to the close and harmfulassociation between extreme self-induced intoxication and violence and affirms society’s commitment to the equality and security rightsof victims vulnerable to intoxicated crime. It responds meaningfully to inequality by recognizing that women and children deserve thefull protection of the law and by condemning intoxicated gendered and family violence.

It includes in its reach the irresponsible use andmixing of intoxicants that could lead to automatism and violence which discourages such behaviour and raises awareness about the linkbetween extreme intoxication and violence. It contributes to public confidence in the criminal justice system, although this benefit mustbe balanced against recognizing society’s interests in a system of law governed by the principles of fundamental justice. As well, itfosters personal responsibility in respect of voluntary intoxication, which Parliament saw as one of the root sources of violent crime.

However, s. 33.1’s deleterious effects are serious and troubling. Its fundamental flaw is the risk of wrongful convictions itpresents. It contravenes virtually all the criminal law principles that the law relies upon to protect the morally innocent. It enablesconviction where the accused acted involuntarily, where the accused did not possess the minimum level of fault required, and where theCrown has not proven beyond a reasonable doubt the essential elements of the offence for which an accused is charged.

Because s. 33.1does not build in a criterion of objective foreseeability, it is impossible to say who, among those who voluntarily ingest intoxicants, hasthe degree of blameworthiness that would justify the stigma and punishment associated with the underlying offence with which they arecharged. Where the intoxicant is licit, or where no reasonable person would anticipate the risk of automatism, whatever blameworthinessthat comes from voluntary intoxication is relatively low and likely disproportionate to the punishment the individual would face ifconvicted for an offence committed in a state akin to automatism.

It cannot be concluded that the morally innocent will not be punished.This is an extremely serious deleterious effect. Additionally, s. 33.1 disproportionately punishes for unintentional harm, contrary to theprinciple that punishment must be proportionate to the gravity of the offence. The Crown has not discharged its burden of showing that the benefits suggested by the evidence are fairly realized bys. 33.1. There are socially and constitutionally acceptable alternatives to the Daviault exception that achieve the legitimate objectives ofthe law more fairly than in s. 33.1.

In the absence of s. 33.1, the benefits tied to accountability and protection will continue to be metthrough the application of common law rules which prevent the defence of intoxication including to general intent crimes of violence.Parliament can further advance these goals with respect to self-induced extreme intoxication akin to automatism through other means.The weight to be accorded to the principles of fundamental justice and the presumption of innocence cannot be ignored.

Section 33.1trenches on fundamental principles at the core of Canada’s criminal law system, creates a liability regime that disregards principlesmeant to protect the innocent, and communicates the message that securing a conviction is more important than respecting the basicprinciples of justice. Its impact on the principles of fundamental justice is disproportionate to its overarching public benefits. It shouldtherefore be declared unconstitutional and of no force or effect. Cases Cited Applied: R. v. Oakes, (SCC), [1986] 1 S.C.R. 103; considered: R. v. Sullivan, 2020 ONCA 333, 151 O.R.(3d) 353; R. v.

Daviault, (SCC), [1994] 3 S.C.R. 63; referred to: R. v. Stone, (SCC), [1999] 2 S.C.R.290; Rabey v. The Queen, (SCC), [1980] 2 S.C.R. 513; R. v. Luedecke, 2008 ONCA 716, 93 O.R. (3d) 89; R. v. Sullivan,2022 SCC 19; Re B.C. Motor Vehicle Act, (SCC), [1985] 2 S.C.R. 486; R. v. Creighton, (SCC), [1993] 3S.C.R. 3; Leary v. The Queen, (SCC), [1978] 1 S.C.R. 29; R. v. Bernard, (SCC), [1988] 2 S.C.R. 833;Director of Public Prosecutions v. Beard, [1920] A.C. 479; R. v. Chaulk, (SCC), [1990] 3 S.C.R. 1303; R. v. Parks, (SCC), [1992] 2 S.C.R. 871; Bratty v. Attorney-General for Northern Ireland, [1963] A.C. 386; R. v.

Ruzic, 2001 SCC 24,[2001] 1 S.C.R. 687; R. v. Bouchard-Lebrun, 2011 SCC 58, [2011] 3 S.C.R. 575; R. v. Théroux, (SCC), [1993] 2S.C.R. 5; R. v. Vaillancourt, (SCC), [1987] 2 S.C.R. 636; R. v. Hundal, (SCC), [1993] 1 S.C.R. 867; R.v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60; R. v. Penno, (SCC), [1990] 2 S.C.R. 865; R. v. DeSousa, (SCC), [1992] 2 S.C.R. 944; Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101; Carter v. Canada (AttorneyGeneral), 2015 SCC 5, [2015] 1 S.C.R. 331; Dagenais v. Canadian Broadcasting Corp., (SCC), [1994] 3 S.C.R. 835; R.v. Mills, (SCC), [1999] 3 S.C.R. 668; R. v.

Malmo-Levine, 2003 SCC 74, [2003] 3 S.C.R. 571; R. v. George, 2017 SCC38, [2017] 1 S.C.R. 1021; R. v. Levigne, 2010 SCC 25, [2010] 2 S.C.R. 3; R. v. Chaulk, 2007 NSCA 84, 257 N.S.R. (2d) 99; R. v.

Morrison, 2019 SCC 15, [2019] 2 S.C.R. 3; R. v. Vickberg (1998), (BC SC), 16 C.R. (5th) 164; Ontario v. CanadianPacific Ltd., (SCC), [1995] 2 S.C.R. 1031; R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49; R. v. Cooper, (SCC), [1993] 1 S.C.R. 146; R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906; Frank v. Canada (Attorney General), 2019 SCC 1,[2019] 1 S.C.R. 3; Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567; R. v. Robinson, (SCC), [1996] 1 S.C.R. 683; RJR-MacDonald Inc. v. Canada (Attorney General), (SCC), [1995] 3 S.C.R. 199; Quebec(Attorney General) v.

A, 2013 SCC 5, [2013] 1 S.C.R. 61; R. v. Martineau, (SCC), [1990] 2 S.C.R. 633; R. v. Dunn(1999), (ON SC), 28 C.R. (5th) 295; Rodriguez v. British Columbia (Attorney General), (SCC),[1993] 3 S.C.R. 519; R. v. Brenton (1999), (NWT SC), 180 D.L.R. (4th) 314; R. v. Chan, 2018 ONSC 3849, 365C.C.C. (3d) 376; R. v. Stevens, (SCC), [1988] 1 S.C.R. 1153; R. v. Hess, (SCC), [1990] 2 S.C.R. 906. Statutes and Regulations Cited Act to amend the Criminal Code (self-induced intoxication), S.C. 1995, c. 32,

preamble. Canadian Charter of Rights and Freedoms, ss. 1, 7, 11, 15, 28. Constitution Act, 1982, s. 52. Criminal Code, R.S.C. 1985, c. C-46,

Part I, s. 33.1. Authors Cited Baker, Dennis, and Rainer Knopff. “Daviault Dialogue: The Strange Journey of Canada’s Intoxication Defence” (2014), 19 Rev. Const.Stud. 35. Canada. Department of Justice. Self-Induced Intoxication as Criminal Fault: Information Note. Ottawa, 1995. Canada. House of Commons. House of Commons Debates, vol. 133, No. 177, 1st Sess., 35th Parl., March 27, 1995, pp. 11037-39. Canada. House of Commons. House of Commons Debates, vol. 133, No. 224, 1st Sess., 35th Parl., June 22, 1995, p. 14470. Canada. House of Commons. Standing Committee on Justice and Legal Affairs.

Evidence, No. 161, 1st Sess., 35th Parl., June 13, 1995,pp. 22-25. Canada. House of Commons. Standing Committee on Justice and Legal Affairs. Minutes of Proceedings and Evidence of the StandingCommittee on Justice and Legal Affairs, No. 98, 1st Sess., 35th Parl., April 6, 1995, pp. 6, 17. Chapman, Frances E. “Sullivan. Specific and General Intent be Damned: Volition Missing and Mens Rea Incomplete” (2020), 63 C.R.(7th) 164. Coughlan, Steve. “Sullivan: Can a

Section 7 Violation Ever be Saved Under

Section 1?” (2020), 63 C.R. (7th) 157. Dimock, Susan. “Actio Libera in Causa” (2013), 7 Crim. Law and Philos. 549. Ferguson, Gerry. “The Intoxication Defence: Constitutionally Impaired and in Need of Rehabilitation” (2012), 57 S.C.L.R. (2d) 111. Gardner, John. Offences and Defences: Selected Essays in the Philosophy of Criminal Law. New York: Oxford University Press, 2007. Grant, Isabel. “Second Chances: Bill C-72 and the Charter” (1995), 33 Osgoode Hall L.J. 379. Grant, Isabel. “The Limits of Daviault” (1995), 33 C.R. (4th) 277.

Healy, Patrick. “Criminal Reports Forum on Daviault: Extreme Intoxication Akin to Automatism Defence to Sexual Assault — AnotherRound on Intoxication” (1995), 33 C.R. (4th) 269. Healy, Patrick. “Intoxication in the Codification of Canadian Criminal Law” (1994), 73 Can. Bar Rev. 515. Hogg, Peter W., and Allison A. Bushell. “The Charter Dialogue Between Courts and Legislatures (Or Perhaps The Charter of RightsIsn’t Such A Bad Thing After All)” (1997), 35 Osgoode Hall L.J. 75. Kelly, Lisa M., and Nadya Gill.

The punishing response to the defence of extreme intoxication, October 13, 2020 (online:https://policyoptions.irpp.org/fr/magazines/october-2020/the-punishing-response-to-the-defence-of-extreme-intoxication/; archivedversion: https://www.scc-csc.ca/cso-dce/2022SCC-CSC18_1_eng.pdf). Lawrence, Michelle S. “Voluntary Intoxication and the Charter: Revisiting the Constitutionality of

Section 33.1 of the Criminal Code”(2017), 40:3 Man. L.J. 391. Parent, Hugues. “La constitutionnalité de l’article 33.1 du Code criminel: analyse et commentaires” (2022), 26 Can. Crim. L.R. 175. Plaxton, Michael, and Carissima Mathen. “What’s Right With

Section 33.1” (2021), 25 Can. Crim. L.R. 255. Quigley, Tim. “A Time for Parliament to Enact an Offence of Dangerous Incapacitation” (1995), 33 C.R. (4th) 283. Roy, Simon. “Intoxication”, dans JurisClasseur Québec — Collection Droit pénal — Droit pénal général, par Marie-Pierre Robert etSimon Roy, dir. Montréal: LexisNexis, 2013, fascicule 13 (mis à jour 7 juillet 2020).

Shaffer, Martha. “R. v. Daviault: A Principled Approach To Drunkenness or A Lapse of Common Sense?” (1996), 3 Rev. Const. Stud.311. Sheehy, Elizabeth. “The intoxication defense in Canada: why women should care” (1996), 23 Contemp. Drug Probs. 595. Silver, Lisa. Who is Responsible for Extreme Intoxication?, October 7, 2021 (online: http://ablawg.ca/wp-content/uploads/2021/10/Blog_LS_Responsible_Extreme_Intoxication.pdf; archived version: https://www.scc-csc.ca/cso-dce/2022SCC-CSC18_2_eng.pdf).

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No. 1028 (QL), 2021 CarswellAlta 1808 (WL Can.), setting asidea decision of Hollins J., 2020 ABQB 166, 9 Alta. L.R. (7th) 375, [2020] A.J. No. 294 (QL), 2020 CarswellAlta 442 (WL Can.). Appealallowed. Sean Fagan and Michelle Biddulph, for the appellant. Deborah J. Alford, for the respondent. Michael H. Morris, Roy Lee and Rebecca Sewell, for the intervener the Attorney General of Canada. Michael Perlin and Jeffrey Wyngaarden, for the intervener the Attorney General of Ontario. Ami Kotler, for the intervener the Attorney General of Manitoba.

Lara Vizsolyi, for the intervener the Attorney General of British Columbia. Noah Wernikowski, for the intervener the Attorney General of Saskatchewan. Anil K. Kapoor and Dana Achtemichuk, for the intervener the Canadian Civil Liberties Association. Carter Martell, Anita Szigeti, Sarah Rankin and Maya Kotob, for the intervener the Empowerment Council. Lindsay Daviau and Eric Neubauer, for the intervener the Criminal Lawyers’ Association. Lara Kinkartz and Megan Stephens, for the intervener the Women’s Legal Education and Action Fund Inc. The judgment of the Court was delivered by Kasirer J. — I.

Overview [1] Following a party at which he had consumed alcohol and “magic mushrooms”, Matthew Winston Brown violentlyattacked Janet Hamnett, a person he did not know and who had done nothing to invite the assault. At the time, Mr. Brown was in whatthe trial judge described as a “substance intoxication delirium” that was so extreme as to be “akin to automatism” (2020 ABQB 166, 9Alta. L.R. (7th) 375, at para. 87). While capable of physical movement, he was in a delusional state and had no willed control over hisactions. Mr.

Brown’s extreme intoxication akin to automatism was brought about by his voluntary ingestion of the magic mushroomswhich contained a drug called psilocybin. Mr. Brown was acquitted at trial. The Alberta Court of Appeal set aside that verdict andconvicted him of the general intent offence of aggravated assault. [2] At common law, automatism is “a state of impaired consciousness, rather than unconsciousness, in which anindividual, though capable of action, has no voluntary control over that action” (R. v. Stone, (SCC), [1999] 2 S.C.R.290, at para. 156).

It is sometimes said that the effect of automatism is to provoke physical involuntariness whereby there is noconnection between mind and body (see Rabey v. The Queen, (SCC), [1980] 2 S.C.R. 513, at p. 518). Examples oftengiven include the involuntary physical movement of an individual who has suffered a heart attack or seizure. Conduct that is involuntaryin this sense cannot be criminal (see R. v. Luedecke, 2008 ONCA 716, 93 O.R. (3d) 89, at paras. 53-56, relying in particular on Rabey, atp. 519, per Ritchie J., and at p. 545, per Dickson J., as he then was, dissenting but not on this point). [3] Mr.

Brown’s appeal before this Court turns on the circumstances in which persons accused of certain violent crimescan invoke self-induced extreme intoxication to show that they lacked the general intent or voluntariness ordinarily required to justify aconviction and punishment. Similar matters are at the heart of the Crown appeals in R. v. Sullivan and R. v. Chan, for which judgmentsare rendered simultaneously with this case (R. v. Sullivan, 2022 SCC 19) (the “Sullivan and Chan appeals”). The Court is asked in allthree cases to decide upon the constitutionality of

An Act to amend the Criminal Code (self-induced intoxication), S.C. 1995, c. 32 (“Bill

C-72”), in light of, on the one hand, the principles of fundamental justice and the presumption of innocence guaranteed to the accused byss. 7 and 11(

d) of the Canadian Charter of Rights and Freedoms and, on the other, Parliament’s aims to protect victims of intoxicatedviolence, in particular women and children, and hold perpetrators to account. [4] These are not drunkenness cases. The accused in each of these appeals consumed drugs which, they argued, takenalone or in combination with alcohol, provoked psychotic, delusional and involuntary conduct, which are reactions not generallyassociated with drunkenness.

As I note below, there is good reason to believe Parliament understood that alcohol alone is unlikely tobring about the delusional state akin to automatism it sought to regulate in enacting s. 33.1 of the Criminal Code, R.S.C. 1985, c. C-46.As Lauwers J.A. wrote in R. v. Sullivan, 2020 ONCA 333, 151 O.R. (3d) 353, “it is not clear that extreme alcohol intoxication causesnon-mental disorder automatism as a matter of basic science” (para. 288).

In any event, these reasons say nothing about criminal liabilityfor violent conduct produced by alcohol alone short of the psychotic state akin to automatism experienced by Mr. Brown and spoken toby the trial judge. I specifically leave intact the common law rule that drunkenness, absent clear scientific evidence of automatism, is nota defence to general intent crimes, including crimes of violence such as sexual assault. [5] It thus bears emphasizing that Mr. Brown was not simply drunk or high.

To be plain: it is the law in Canada thatintoxication short of automatism is not a defence to the kind of violent crime at issue here. The outcome of the constitutional questions inthese appeals has no impact on the rule that intoxication short of automatism is not a defence to violent crimes of general intent in thiscountry. [6] Parliament added s. 33.1 largely in response to R. v. Daviault, (SCC), [1994] 3 S.C.R. 63. In thatcase, the Court confirmed the common law rule that intoxication is not a defence to crimes of general intent.

The majority in Daviaultrecognized, however, that the Charter mandated an exception to the common law rule: where intoxication is so extreme that an accusedfalls into a condition akin to automatism, a conviction for the offence charged would violate ss. 7 and 11(

d) of the Charter. It would beunfair, reasoned the Court, to hold an individual responsible for crimes committed while in a state of automatism, as they are incapableof voluntarily committing a guilty act or of having a guilty mind. [7] Crown counsel in this appeal and the Sullivan and Chan appeals recall that the Daviault exception was met withpublic incomprehension and disapproval. In dissent, Sopinka J. anticipated this grievance when he wrote that those who voluntarilyrender themselves intoxicated and then violently cause bodily harm to others are “far from blameless” (p. 128).

In order to address theconstitutional failings identified by the majority of the Court in a manner that would properly reflect the blameworthiness of theextremely self-intoxicated accused identified by the dissent, Parliament enacted s. 33.1. The new provision purported to remove thedefence of automatism for the extremely self-intoxicated accused and put in place a constitutionally-compliant measure of criminal faultfor the underlying violent offence.

The Crown and the intervening attorneys general urge us to interpret s. 33.1 as validly imposingliability for violent crimes based on a standard of criminal negligence that would answer the violations of the Charter pointed to inDaviault. [8] But the impugned provision of the Criminal Code does not establish a proper measure of criminal fault by reason ofintoxication. Instead, s. 33.1 imposes liability for the violent offence if an accused interferes with the bodily integrity of another “while”in a state of self-induced intoxication rendering them incapable of consciously controlling their behaviour.

Section 33.1 treats extremevoluntary intoxication, foreseeable or otherwise, as a condition of liability for the underlying violent offence and not as a measure of faultbased on criminal negligence. [9] Accordingly, the accused risks conviction for the relevant general intent offence — in Mr. Brown’s case, foraggravated assault — based on conduct that occurred while they are incapable of committing the guilty act (the actus reus) or of havingthe guilty mind (mens rea) required to justify conviction and punishment.

They are not being held to account for their conductundertaken as free agents, including the choice to ingest an intoxicant undertaken when neither the risk of automatism nor the risk ofharm was necessarily foreseeable. Instead, the accused is called to answer for the general intent crime that they cannot voluntarily orwilfully commit, an offence for which the whole weight of the criminal law and ss. 7 and 11(

d) say they may be morally innocent. Todeprive a person of their liberty for that involuntary conduct committed in a state akin to automatism — conduct that cannot be criminal— violates the principles of fundamental justice in a system of criminal justice based on personal responsibility for one’s actions.

On itsface, not only does the text of s. 33.1 fail to provide a constitutionally compliant fault for the underlying offence set out in its thirdparagraph, it creates what amounts to a crime of absolute liability. [10] I hasten to say that there may well have been other paths for Parliament to achieve its legitimate aims connected tocombatting extreme intoxicated violence. The sense that an accused who acts violently in a state of extreme self-induced intoxication ismorally blameworthy is by no means beyond the proper reach of the criminal law.

Protecting the victims of violent crime — particularlyin light of the equality and dignity interests of women and children who are vulnerable to intoxicated sexual and domestic violence — isa pressing and substantial social purpose.

And as I shall endeavour to show, it was not impermissible for Parliament to enact legislationseeking to hold an extremely intoxicated person accountable for a violent crime when they chose to create the risk of harm by ingestingintoxicants. [11] The alternatives to the constitutionally fragile s. 33.1 strike different balances between individual rights and societalinterests and, no doubt, each has advantages and shortcomings as a matter of social policy. Some of these options would be manifestlyfairer to the accused while achieving some, if not all, of Parliament’s objectives.

I am mindful that it is not the role of the courts to setsocial policy, much less draft legislation for Parliament, as courts are not institutionally designed for these tasks. But it is relevant to theanalysis that follows that, as noted by the majority in Daviault itself (p. 100) and by the majority of the Court of Appeal in Sullivan(para. 132), it would likely be open to Parliament to establish a stand-alone offence of criminal intoxication.

Others, including the voirdire judge in this very case (2019 ABQB 770, at para. 80 ), have suggested liability for the underlying offence would bepossible if the legal standard of criminal negligence required proof that both of the risks of a loss of control and of the harm that followswere reasonably foreseeable.

In either of these ways, Parliament would be enacting a law rooted in a “moral instinct” that says a personwho chooses to become extremely intoxicated may fairly be held responsible for creating a situation where they threaten the physicalintegrity of others (I borrow the phrase “moral instinct” from Professors M. Plaxton and C. Mathen, “What’s Right With

Section 33.1”(2021), 25 Can. Crim. L.R. 255, at p. 257).

[12] Parliament did not enact a new offence of dangerous intoxication, nor did it adopt a new mode of liability forexisting violent offences based on a proper standard of criminal negligence. With the utmost respect, I am bound to conclude the pathParliament chose in enacting s. 33.1 was not, from the point of view of ss. 7 and 11(

d) of the Charter, constitutionally compliant. I amunable to agree with what the Minister of Justice asserted on the third reading of s. 33.1 in Parliament: “. . . the approach taken in BillC-72 is fundamentally fair, both to the victims of violence and to those accused of crime” (House of Commons Debates (“Hansard”),vol. 133, No. 224, 1st Sess., 35th Parl., June 22, 1995, at p. 14470). [13] The violations of the rights of the accused in respect of the principles of fundamental justice and the presumption ofinnocence occasioned by s. 33.1 are grave.

Notwithstanding Parliament’s laudable purpose, s. 33.1 is not saved by s. 1 of the Charter.The legitimate goals of protecting the victims of these crimes and holding the extremely self-intoxicated accountable, compelling as theyare, do not justify these infringements of the Charter that so fundamentally upset the tenets of the criminal law. With s. 33.1, Parliamenthas created a meaningful risk of conviction and punishment of an extremely intoxicated person who, while perhaps blameworthy in somerespect, is innocent of the offence as charged according to the requirements of the Constitution. [14] In the case of Mr.

Brown, and on the strength of the findings of fact at trial, the conclusion may be plainly stated.Mr. Brown might well be reproached for choosing to drink alcohol and ingest magic mushrooms prior to the harm suffered byMs. Hamnett, but that blame cannot ground criminal liability for the aggravated assault that occurred while he was in a state of deliriumakin to automatism. On a constitutional standard, he did not commit the guilty act of aggravated assault voluntarily and he was incapableof forming even the minimally-required degree of mens rea required for conviction of that offence.

In my respectful view, to punish himin these circumstances, however exceptional they might be, would be intolerable in a free and democratic society. The law imposes thesolemn and onerous duty on this Court to declare s. 33.1 unconstitutional (see Re B.C. Motor Vehicle Act, (SCC), [1985]2 S.C.R. 486 (“Motor Vehicle Reference”), at p. 497). For the reasons that follow, I would set aside the judgment of the Court of Appeal,declare s. 33.1 to be of no force and effect pursuant to s. 52(1) of the Constitution Act, 1982, and restore Mr. Brown’s acquittal renderedat trial. II.

Background [15] At a friend’s house party on a January night in Calgary, Mr. Brown had six or seven mixed drinks, a few beers andconsumed several one-half gram or smaller portions of magic mushrooms. He was 26 years old and in his last year of university and wasaware that psilocybin in magic mushrooms is an illegal drug that can bring about hallucinations. He had tried magic mushrooms oncebefore and believed that they generally gave a “fuzzy but positive feeling” (trial reasons, at para. 38). [16] As Mr.

Brown would testify at his trial, at around 1:30 a.m. he felt “wonky” and began to “los[e] [his] grip onreality” (A.R., vol. V, at p. 13). Without any memory of having done so, Mr. Brown removed his clothing and left the house in anagitated state at around 3:45 a.m., running naked and barefoot into the cold winter night. His friends searched for him for about 10 to 15minutes and then called the police. [17] In a nearby house, Janet Hamnett was awoken around 4:00 a.m. by a loud noise. When she went to investigate,Ms.

Hamnett was attacked by someone she did not know who she later described as a huge presence screaming at the top of his lungs.The intruder was Mr. Brown. Ms. Hamnett fell to the ground and put her arms up as he beat her repeatedly with a broken broom handle.With her head, face and arms covered in blood, she managed to get to a bathroom and lock the door. Mr. Brown left the house andcontinued into the street. When all appeared quiet Ms. Hamnett sought refuge at a neighbour’s house, at which time the police werecalled.

The attack left her with cuts and contusions, as well as broken bones in her right hand which resulted in permanent injuries. Shealso suffered psychological harm from the incident. [18] At about 5:00 a.m., Mr. Brown broke into the Varshney residence a kilometer away by throwing a heavy objectthrough the front door window. Mr. and Mrs. Varshney, who did not know Mr. Brown, heard screaming and the sound of breaking glass.They were able to take shelter in their bedroom and call the police. The police found Mr.

Brown lying naked on the floor of a bathroom.He was whispering and appeared confused by his surroundings; his feet were visibly bruised and bloodied. Mr. Brown complied withpolice instructions and was taken for medical care. He recalled coming to in hospital then waking later in a jail cell. Mr. Brown later saidhe had no memory of what transpired at either of the two homes. [19] Mr. Brown had no previous criminal record and no history of mental illness. He was charged with one count ofbreaking and entering Ms.

Hamnett’s home and committing the indictable offence of aggravated assault and one count of breaking andentering the Varshney home and committing the indictable offence of mischief to property over $5,000. [20] At trial, Mr. Brown argued that he was not guilty of the offences charged by reason of automatism. He claimed tohave been so impaired by the consumption of psilocybin that his actions were involuntary and that he did not have the necessary mensrea for conviction of aggravated assault or mischief to property.

Expert evidence adduced at trial confirmed that that the psilocybin wasthe “clear causative factor” for what was described as the accused’s delirium (trial reasons, at para. 73). On the basis of this evidence,Mr. Brown was said to have no voluntary control over his conduct at the time. [21] The Crown invoked s. 33.1 as a means of precluding Mr. Brown from relying on self-induced intoxication akin toautomatism as a defence to the charge of aggravated assault. Mr. Brown answered that, insofar as it prevented him from raisingautomatism as a defence, s. 33.1 violated ss. 7 and 11(

d) of the Charter and could not be saved by s. 1. He said that the defence shouldbe available to him against both charges, including the offence relating to the aggravated assault to which s. 33.1 purportedly applied. III. Proceedings Below A. Alberta Court of Queen’s Bench

(1) The Constitutional Ruling, 2019 ABQB 770 (deWit J.) [22] In a judgment rendered following a voir dire, deWit J. concluded that s. 33.1 violated the principles of fundamental

justice and the presumption of innocence guaranteed by the Charter and was not otherwise justified pursuant to s. 1. [23] The voir dire judge observed that s. 33.1 “does not deal with the consequence of criminal acts” but “simplyeliminates any evidence and argument regarding the mens rea and voluntariness of the accused” (paras. 29-30). He concluded that s. 33.1allows for a conviction in the absence of proof that the underlying violent offence was intended or committed voluntarily, contrary to s. 7of the Charter (para. 31). Instead, the provision operates akin to a regime of absolute liability.

He further held that s. 33.1 enablesconviction even where there is a reasonable doubt about the essential elements of the charged offence, contrary to s. 11(d) (para. 37). [24] He then held that these limits cannot be reasonably justified in a free and democratic society. The judge didrecognize that the provision had pressing and substantial objectives relevant to s. 1 of the Charter.

Section 33.1 was not, however,minimally impairing, as there were less harmful means of assuring Parliament’s protection and accountability objectives (para. 80). Forthe voir dire judge, the deleterious effects of s. 33.1 outweighed its benefits.

Section 33.1’s primary flaw is that it offends “sacrosanct”principles of the legal system designed to avoid convicting the morally innocent (para. 89). This negative effect outweighs the benefits ofthe law, especially when Parliament could have adopted a better-tailored rule bearing on the consumption of intoxicants and their effects. [25] The voir dire judge declared s. 33.1 to be of no force and effect pursuant to s. 52(1) of the Constitution Act, 1982. Asa result, Mr. Brown was entitled to raise the defence of extreme intoxication akin to automatism that s. 33.1 purported to exclude.

(2) Reasons for Judgment on the Merits, 2020 ABQB 166, 9 Alta. L.R. (7th) 375 (Hollins J.) [26] At trial, Mr. Brown led evidence in support of the defence of extreme intoxication akin to automatism. Hollins J.held that every material piece of evidence supported a finding of automatism. [27] The trial judge found that Mr. Brown was in a state of delirium due to his consumption of psilocybin, “which meantthat he was not acting voluntarily in the commission of these offences nor with knowledge of his acts” (para. 34). Expert testimony wasadduced that Mr.

Brown’s conduct was involuntary at the time of the offences and he had no conscious control over or awareness of hisactions. A forensic psychologist, Dr. Thomas Dalby, stated that Mr. Brown’s delirium was caused by the psilocybin and that his reactionwas “unanticipated” (A.R., vol. III, at p. 318). An expert in pharmocology, Dr. Mark Yarema, agreed that psilocybin can “induce a stateakin to legal automatism” (A.R., vol. III, at p. 241). In his view, Mr.

Brown’s actions were those of someone “who has lost touch withreality, does not have a normal level of consciousness, and does not have voluntary control over their actions” (A.R., vol. III, at p. 242). [28] Hollins J. accepted these conclusions as well as the evidence of other witnesses who testified, including the victims,who were all credible in her view.

The defence was an answer to the property-based offence at common law and was available for thecharge relating to the aggravated assault given that s. 33.1 had been declared of no force and effect by her colleague, deWit J.Accordingly, she entered acquittals on both counts of the indictment. B. Court of Appeal of Alberta, 2021 ABCA 273, 30 Alta. L.R. (7th) 1 (Slatter, Khullar and Hughes JJ.A.) [29] In separate opinions written by Slatter, Khullar and Hughes JJ.A., the Court of Appeal reversed deWit J.’sdeclaration that s. 33.1 was of no force or effect.

The court set aside the acquittal on the first count and entered a conviction on theincluded offence of aggravated assault. The acquittal on the mischief charge, unaffected by s. 33.1, was not appealed. [30] Slatter and Hughes JJ.A. both held that the voir dire judge had erred in concluding that s. 33.1 violated ss. 7and 11(

d) of the Charter. [31] For Slatter J.A., the Supreme Court had “expressly invited Parliament to do exactly what it did, namely legislate tofill the gap created by Daviault, contemplating that the result would comply with s. 7” (para. 14). Slatter J.A. saw no breach of theprinciple of voluntariness because it was acceptable for Parliament to criminalize voluntary intoxication in situations where a self-createdrisk of harm is objectively foreseeable.

He further held that there was no breach of the constitutional requirement of mens rea becauses. 33.1 adopts the marked departure standard, which has been accepted as a sufficient measure of fault, in particular in R. v. Creighton, (SCC), [1993] 3 S.C.R. 3. All that is constitutionally required is an “objectively foreseeable risk of personal injury”(para. 26 (emphasis in original)).

Finally, Parliament had not improperly substituted proof of extreme intoxication for proof of theessential elements of the charged offence because s. 33.1 simply “redefined” the mens rea for general intent offences (para. 27).Slatter J.A. concluded that by “self-administering a dangerous drug”, a person is responsible for the objectively foreseeable risksassociated with self-induced intoxication (para. 30). “It follows”, he wrote, “that there is nothing unconstitutional about Parliamentestablishing criminal fault based on the risks inherent in self-intoxication” (para. 34). [32] In the alternative, wrote Slatter J.A., s. 33.1 would be saved under s. 1.

Protecting citizens from violent crimes andholding violent citizens accountable, as specific purposes, can be acknowledged as pressing and substantial, in addition to “the generalpurpose of the criminal law of protecting core social values” (para. 61). The provision has clear benefits: it affirms fundamental societalvalues about protecting women and children, it restores confidence in the justice system, it encourages the reporting of crime, and itdenounces and deters the use of illegal substances. These outweigh any deleterious effects. “No one who is truly morally innocent isimpacted”, he wrote (para. 81).

He concluded that “it is demonstrably justifiable to hold persons like [Mr. Brown] accountable for theirdecisions to consume substances known to affect human behaviour” (para. 85). Slatter J.A. concluded that the appeal should be allowed,the declaration of unconstitutionality set aside, and a conviction should be entered for aggravated assault. [33] In concurring reasons, Hughes J.A. wrote that s. 33.1 requires a measure of fault that reflects a marked departurefrom the standard of care of a reasonable person.

No substitution breach arose under the provision because Parliament created analternative level of objective fault. Accused persons can still raise a reasonable doubt about whether the intoxication was self-induced orunforeseen. There is no Charter breach. If she were wrong in this view, Hughes J.A. would agree with her colleagues that s. 33.1 is savedby s. 1. [34] In her reasons concurring in the result, Khullar J.A. found breaches of ss. 7 and 11(

d) but decided that the provisioncould be upheld under s. 1. In respect of the prima facie breach, she relied on the reasons of Paciocco J.A. in Sullivan that s. 33.1 allows

conviction even though the conduct of the offence was not voluntary (para. 168, citing Sullivan at paras. 64-74) and, as such, it violated aprinciple of fundamental justice constitutionally mandated by the Charter. Relying further on Sullivan, Khullar J.A. noted that s. 33.1fails to satisfy the minimum mens rea required by the Charter (para. 168, citing Sullivan, at paras. 79-94).

Section 33.1 infringed s. 11(d)of the Charter to the extent that it allows an accused to be found guilty despite a reasonable doubt whether they had the mens rearequired by the offence. [35] Khullar J.A. concluded however that the provision could be saved under s. 1. She stated that the justification analysiswas a “hard and close case” but that Parliament’s choice was a defensible one in light of the options it reviewed (para. 166). [36] For Khullar J.A., Parliament had pressing and substantial objectives relating to accountability and protection inenacting s. 33.1.

She disagreed with the view, expressed by the majority in Sullivan, that the accountability purpose is constitutionallyimpermissible.

She was of the view that the majority in Sullivan confused the purpose of the provision with its effects (para. 184).Turning to the proportionality leg of the s. 1 test, Khullar J.A. found that the means were rationally connected to these objectives.Section 33.1 serves as a deterrent and strengthens a social ethos that disapproves of excessive intoxication leading to violence. [37] Khullar J.A. observed that the provision might have been drafted using the modified objective test described by thevoir dire judge which would have been “less problematic” (para. 197).

Parliament was, however, owed deference in its choice for thedifficult moral issues. Thus, s. 33.1 passed the minimal impairment stage of the Oakes test (R. v. Oakes, (SCC), [1986] 1S.C.R. 103). [38] At the final balancing stage, Khullar J.A. acknowledged that there are “serious and troubling negative effects ofs. 33.1” in that it allows conviction for violent crimes even where the conduct constituting the actus reus is not voluntary and theaccused does not possess the mens rea required for the general intent offence (para. 201).

However, the important benefits outweighthese deleterious effects, including the protection of women and children that “breathes some meaning into the equality rights of victims”(para. 202). It also deters the irresponsible use and mixing of intoxicants that could lead to automatism and violent behaviour (para. 204):“Parliament is entitled to craft a legislative response regardless of how often an accused would fall within s. 33.1” (para. 207). [39] In conclusion, Khullar J.A. adopted Slatter J.A.’s disposition of the matter. The Court entered a conviction foraggravated assault. IV.

Issue [40] The only issue is whether s. 33.1 violates ss. 7 and 11(

d) of the Charter and, if so, whether it can be saved under s. 1. [41]

Section 33.1 provides: 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 thegeneral intent or the voluntariness required to commit the offence, where the accused departed markedly from the standard of care asdescribed in subsection (2).

(2) For the purposes of this section, a person departs markedly from the standard of reasonable care generally recognized in Canadiansociety and is thereby criminally at fault where the person, while in a state of self-induced intoxication that renders the person unawareof, or incapable of consciously controlling, their behaviour, voluntarily or involuntarily interferes or threatens to interfere with the bodilyintegrity 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 orany other interference or threat of interference by a person with the bodily integrity of another person. V. Analysis A. Intoxication and Criminal Liability [42] While Mr. Brown was convicted of aggravated assault, it is of central importance to recall that s. 33.1 blocks thedefence of automatism for all general intent crimes designated in s. 33.1(3), including sexual assault and some other forms of genderedviolence. Intoxicated sexual assault was in issue in Leary v.

The Queen, (SCC), [1978] 1 S.C.R. 29, R. v. Bernard, (SCC), [1988] 2 S.C.R. 833, and Daviault. Domestic and sexual violence have had, as the

preamble of Bill C-72 makes plain,a “particularly disadvantag[eous] impact on the equal participation of women and children in society” and Parliament was especiallyconcerned not to allow voluntary intoxication to “excuse” violence against women and children. It is not only important that thispreoccupation be recognized as legitimate, but that it be understood as having shaped arguments challenging the provision (see I.

Grant,“Second Chances: Bill C-72 and the Charter” (1995), 33 Osgoode Hall L.J. 379). [43] The common law has developed an unsympathetic view towards offenders who argue that their intoxication renderedthem incapable of forming the necessary guilty mind. In principle, intoxication does not allow the guilty to evade the stigma of properconviction or the exacting of fair punishment in Canadian law. Intoxication short of automatism is never a defence to crimes of generalintent, including manslaughter, assault, and sexual assault (see Director of Public Prosecutions v.

Beard, [1920] A.C. 479 (H.L.); Leary,at pp. 57-60). In Leary, the majority determined that the recklessness involved in becoming drunk was sufficient to find the guilty mindfor whatever general intent offence follows. At the time, the Leary rule applied to all degrees of intoxication, including extremeintoxication akin to automatism. Intoxication may only negate fault for crimes of specific intent, such as murder, by reason of thecomplexity of mens rea required for conviction.

It bears repeating: The rule that intoxication is not a defence to general intent crimesremains untouched by this appeal, except in the case of intoxication akin to automatism.

[44] The constitutionality of the Leary rule was upheld in Bernard. In concurring reasons, Wilson J. upheld the rule onthe basis that the mens rea for sexual assault could be inferred from the commission of the act, notwithstanding drunkenness, where theaccused engaged in an “intentional and voluntary” act (p. 883). Wilson J. was quick however to distinguish the facts of Bernard fromcases of extreme intoxication akin to automatism.

Wilson J. took care to note that, in a case of true automatism, the Leary rule couldviolate the presumption of innocence by substituting the fault of becoming drunk for the fault of the charged offence (pp. 889-90). [45] It bears recalling, then, that most degrees of intoxication do not provide a defence to crimes of general intent like theoffence of aggravated assault from which Mr. Brown was convicted on appeal.

Only the highest form of intoxication — that whichresults in a person losing voluntary control of their actions — is at issue here: extreme intoxication akin to automatism as a defence toviolent crimes of general intent and, then again only intoxication that is self-induced. [46] The defence of automatism denies the element of voluntariness and therefore negates the actus reus of the offence(R. v. Chaulk, (SCC), [1990] 3 S.C.R. 1303, at p. 1321; R. v. Parks, (SCC), [1992] 2 S.C.R. 871, atp. 896).

Involuntary conduct is understood to be genuinely exculpatory because, while the prohibited act was harmful, the accused lacksthe capacity to answer for what they did (J. Gardner, Offences and Defences: Selected Essays in the Philosophy of Criminal Law (2007),at p. 142).

A physically involuntary act, however wrongful in outward appearance, is not a guilty act that can be imputed to an accused. [47] Automatism is reflected in involuntary movements that may be associated with heart attacks, seizures or “external”shock, or conditions such as sleepwalking or delirium, where the body moves but there is no link between mind and body (Bratty v.Attorney-General for Northern Ireland, [1963] A.C. 386 (H.L.), at p. 409; Rabey, at p. 523).

Physical voluntariness is a principle offundamental justice and a requirement of all true criminal offences, central to the criminal law’s desire to avoid convicting the morallyinnocent (Daviault, at p. 74; R. v. Ruzic, 2001 SCC 24, [2001] 1 S.C.R. 687, at paras. 46-47; R. v. Bouchard-Lebrun, 2011 SCC 58,[2011] 3 S.C.R. 575, at para. 45). Absent a willed movement of the body, the Crown cannot prove the actus reus beyond a reasonabledoubt (R. v. Théroux, (SCC), [1993] 2 S.C.R. 5, at pp. 17-18).

This is distinguished from moral involuntariness, whichdescribes scenarios where the accused retains conscious control over their body but has no realistic choice but to commit a guilty act(Ruzic, at para. 44). [48] In addition, an automaton cannot form the mens rea, or guilty mind, if their actions are involuntary. Where anaccused has no conscious awareness of their movements, they necessarily cannot intend their involuntary acts.

Imposing criminalliability in the absence of proof of fault also offends the principles of fundamental justice (Motor Vehicle Reference, at pp. 513-15). [49] I recall that, in Bernard, Wilson J. wrote that in a case of true intoxication akin to automatism, it may be improper tosubstitute proof of intention to become intoxicated for proof of intention to commit the violent offence (pp. 889-90). The choice tobecome intoxicated through legal or illegal means, a choice that many Canadians make, cannot be said to be the same as an intention toperpetrate the illegal act.

The substitution violates the presumption of innocence, because a person can be convicted despite a reasonabledoubt about whether the essential elements of the offence have been established (Oakes, at p. 134; R. v. Vaillancourt, (SCC), [1987] 2 S.C.R. 636, at p. 656). [50] I note that the defence has been referred to as “rare” in the case law (Daviault, at pp. 92-93; Sullivan, at para. 118).The Attorney General of Manitoba disputes that and points to instances of violence involving street drugs with knownpsychosis-inducing properties. It is certainly plain that intoxicated violence is a serious social problem.

Whatever proportion of thisphenomenon relates to involuntary conduct, it is notable that extreme intoxication akin to automatism is an exigent defence requiring theaccused to show that their consciousness was so impaired as to deprive them of all willed control over their actions. This is not the sameas simply waking up with no memory of committing a crime. A failure to remember does not prove that an individual was actinginvoluntarily. Nor is it the same as suffering a psychotic episode where physical voluntariness remains intact.

But even if one were toaccept that the defence is a rarity, it hardly seems conclusive to either side of the debate. It is cold comfort to the victim of extremeintoxicated violence that their plight is a rare one.

And it is equally chilling to think that denying the defence to a person who is morallyand physically incapable of committing a crime is somehow palatable in that it is a rare occurrence. [51] Disagreements concerning the blameworthiness of voluntary intoxication animated the majority and minorityopinions in Daviault, which addressed squarely the impact of the Leary rule and the preoccupations of Wilson J. in Bernard on extremeintoxication akin to automatism.

(1) Daviault [52] Mr. Daviault sexually assaulted an acquaintance after drinking 7 or 8 bottles of beer and 35 ounces of brandy, anamount that would likely cause death or a coma in an ordinary person. The issue was, as a matter of law, whether evidence of extremeself-induced intoxication akin to automatism could ground a defence to the general intent crime of sexual assault. Cory J. for the majorityheld that the Leary rule offended ss. 7 and 11(

d) of the Charter in three ways, helpfully explained by Paciocco J.A. in Sullivan as the“voluntariness breach”, the “improper substitution breach” and the “mens rea breach” (Sullivan, at para. 47; Daviault, at pp. 89-92). [53] The majority was concerned that an accused in a state of extreme intoxication akin to automatism could be convictedfor conduct that, by reason of its involuntary character, cannot amount to the actus reus of the offence, for which proof beyond areasonable doubt must be made.

This violation of the criminal law’s voluntariness principle would breach the principles of fundamentaljustice in s. 7 of the Charter (pp. 91-92). Moreover, the choice to become intoxicated cannot be properly substituted for the mens rea ofthe offence charged. Proof of voluntary intoxication does not inevitably lead to the conclusion that the accused had the requisite mentalelement required for conviction. The improper substitution of proof of self-induced intoxication for proof of mens rea of the offence is abreach of the presumption of innocence (s. 11(d)) (p. 92).

Finally, the majority in Daviault recalled that voluntary intoxication is not acrime and the consequences of self-induced intoxication may themselves not be voluntary or foreseeable. To convict a person based onself-induced intoxication means that an accused might not have the constitutionally required minimum mens rea that fits the offencecharged and the criminal sanction that attaches thereto. This would violate the principles of fundamental justice in s. 7 of the Charter andconstitutes the mens rea breach (ibid.).

[ 54 ] The majority in Daviault thus modified the rule that intoxication is not a defence to crimes of general intent. Exceptionally, a defence of extreme intoxication akin to automatism, including self-induced extreme intoxication, could be raised by an accused, although intoxication short of automatism would still not be a defence, as it will not interfere with someone’s ability to form the minimum mental element required for a general intent offence (pp. 99-101).

Cory J. invited Parliament to legislate to meet what he considered to be the rare case of this degree of intoxication, noting that it was “always open to Parliament to fashion a remedy which would make it a crime to commit a prohibited act while drunk” (p. 100). [ 55 ] In dissent, Sopinka J. said that self-induced extreme intoxication cannot be a defence for general intent crimes such as sexual assault. In his view, the principles of fundamental justice could be satisfied if there is a blameworthy mental element and the level of blameworthiness is not disproportionate to the seriousness of the offence (p. 118).

Those who voluntarily consume alcohol or drugs and render themselves involuntary are not morally blameless. Sopinka J. wrote that the voluntariness principle must give way as a “perpetrator who by his or her own fault brings about the conditions should not escape punishment” (p. 121). [ 56 ] Thus, following Daviault , at common law, an accused was entitled to an acquittal for a general intent offence if they could prove, on a balance of probabilities, that they committed the acts involuntarily, while in a state of extreme intoxication akin to automatism.

In order to do so, the accused must adduce expert evidence. [ 57 ] In its aftermath, the majority opinion in Daviault was criticized for its “alarming lack of consideration of the social context of sexual assault particularly for women and children” (I. Grant, “The Limits of Daviault” (1995), 33 C.R. (4th) 277, at p. 287 ; see also M. Shaffer, “ R. v. Daviault : A Principled Approach To Drunkenness or A Lapse of Common Sense?” (1996), 3 Rev. Const. Stud. 311, at pp. 324-27).

Professor Grant, for example, argued that alcohol is often implicated in gendered violence, and therefore strong equality protections are necessary (“Second Chances: Bill C-72 and the Charter ”, at p. 389). She wrote that “[t]he suggestion that someone could be too drunk to be convicted of sexual assault shocked the public’s sense of justice and common sense” (p. 383).

(2) Bill C-72 [ 58 ] Within a relatively short period following the judgment of this Court in Daviault , Parliament added s. 33.1 to the general part (Part I — General) of the Criminal Code , which sought to abolish self-induced intoxication akin to automatism as a defence to general intent offences involving violence. The

preamble of Bill C-72, to which I will return, emphasized Parliament’s concerns regarding intoxicated violence and its impact on the equality and security interests of women and children. It also spoke to the moral view that someone who caused harm while voluntarily intoxicated was blameworthy and should be held accountable for that harm. [ 59 ] Before the Standing Committee on Justice and Legal Affairs in advance of the Bill’s enactment, the Minister of Justice stated that in Daviault , Sopinka J. “wrote a strong judgment for the dissent. . . .

He was able to conclude that the moral blameworthiness in the act of inducing your own intoxication was sufficient as a link to criminal liability for the harm charged in the offence” ( Minutes of Proceedings and Evidence of the Standing Committee on Justice and Legal Affairs , No. 98, 1st Sess., 35th Parl., April 6, 1995, at p. 17). He stated that the draft amendment provided a sufficient level of fault in that self-induced intoxication to the point of automatism was a departure from the standard of care ( ibid. ).

In its response to Daviault , Parliament thus sought to supply a link between the intention to become intoxicated and the intention to commit a crime of violence identified by the majority. It endeavoured to do so by legislating the marked departure standard described in s. 33.1(2), which was viewed as avoiding the constitutional infirmities identified by Cory J. and extending the moral and policy reasoning of Sopinka J.’s dissent. [ 60 ] Even after Daviault , there is general agreement that a person acting in a state of automatism deserves an acquittal where their loss of control is truly morally blameless.

But, to borrow a phrase from the United Kingdom Law Commission, there is a persistent sense shared by many that “it is not fair for there to be an acquittal where the accused may be blamed for whatever led to the loss of control” ( Criminal Liability: Insanity and Automatism — A Discussion Paper (2013), at para. 1.117). On this view, a person whose automatism is brought about by self-induced extreme intoxication should shoulder that blame and the law should not allow them to escape liability for their violent conduct.

There is a perceived difference, say, between a person who consumes a spiked drink and, as a result, loses control of their actions and another person who, because they chose to drink or take drugs to excess, falls into a state akin to automatism. At the same time, issues related to agency and automatism are complicated by other factors, including the social problem of addiction that may have a bearing on the question of moral blameworthiness (see, generally, L. Silver, Who is Responsible for Extreme Intoxication? , October 7, 2021 (online); L. M. Kelly and N.

Gill, The punishing response to the defence of extreme intoxication , October 13, 2020 (online)). While this bears noting, it is unnecessary to say more on this problem that does not arise on the facts of this appeal or of the Sullivan and Chan appeals before the Court. [ 61 ] I take due note that the

preamble to Bill C-72 provides that, in most cases, extreme intoxication akin to automatism is brought about not through the consumption of alcohol alone, but by the consumption of other intoxicants or a mix of alcohol and another substance. For this observation, Parliament relied upon reports and testimony by three experts in support of its conclusion that alcohol alone will not induce a state of automatism. One expert, Dr. Harold Kalant, stated that there was no scientific evidence that alcohol could cause automatism, absent an underlying health condition ( Sullivan and Chan appeals, A.R., vol.

VI, at pp. 93-95; see also the evidence of Dr. Kendall and Dr. Bradford in Standing Committee on Justice and Legal Affairs, Evidence , No. 161, 1st Sess., 35th Parl., June 13, 1995, at pp. 22-25). While s. 33.1 refers to intoxication generally, without formally distinguishing between licit or illicit substances, the

preamble to Bill C-72 states that “the Parliament of Canada . . . is aware of scientific evidence that most intoxicants, including alcohol, by themselves, will not cause a person to act involuntarily”. [ 62 ] Although both Daviault and Parliament were focussed on “drunkenness”, the parliamentary record and facts of this appeal and the Sullivan and Chan appeals suggest that the defence of extreme intoxication akin to automatism will generally not be relevant in cases involving alcohol alone.

The experts in this case explained, with reference to the legal definition of automatism, that psilocybin may induce delusions, psychotic episodes, confusion and disorientation (A.R., vol. III, at pp. 241 and 315). Dr. Kalant, in contrast, testified before Parliament that, normally, alcohol progressively decreases nerve cell activity in the brain until a person becomes both unconscious and incapable of physical movement ( Sullivan and Chan appeals, A.R., vol. VI, at p. 93), an effect which would not satisfy the state of impaired conscious and unwilled movements necessary for a true state automatism.

Claims of extreme intoxication must, of course, be assessed with reference to the facts and expert evidence adduced at the trial. It would be inappropriate here to

foreclose a finding of extreme intoxication through any intoxicant taken alone, if medical and scientific evidence adduced compel such aconclusion. [63] I now turn to the question of whether s. 33.1 infringes ss. 7 and 11(

d) of the Charter, as alleged by Mr. Brown. B.

Section 33.1 Infringes Sections 7 and 11(d)

(1) Principal Arguments [64] Mr. Brown says s. 33.1 violates ss. 7 and 11(

d) of the Charter. In its reading of the provision, the Court of Appealerred in departing from the principles set forth in Daviault. He says that s. 33.1 unfairly extends to situations in which there is noforeseeable risk of violence for the general intent offence to which it applies. It creates a regime for absolute liability by allowingconviction without proof beyond a reasonable doubt that the accused intentionally or voluntarily committed the offence.

Section 33.1therefore improperly substitutes intent to become intoxicated with intent to commit the violent offence. Mr. Brown adds that s. 33.1 alsolimits s. 7 because it mandates conviction without any contemporaneity between the actus reus and mens rea of a criminal offence. [65] The Crown responds that, when properly interpreted, s. 33.1 complies with the Charter.

Under the Crown’s reading,s. 33.1 only punishes the intentional and voluntary consumption of drugs to an extreme level, thus meeting the voluntariness requirement.There is no mens rea breach because s. 33.1 contains a true objective standard and includes objective foresight of harm. There is noimproper substitution because s. 33.1 changes the mens rea needed to prove a general intent offence.

Parliament was entitled to setstandards of behaviour that all in society must follow. [66] The intervening attorneys general say that s. 33.1 has cast a unique mode of liability that provides the necessaryingredients for a constitutionally valid offence. The mental element inherent in s. 33.1(2) reflects the minimum objective faultrequirement along the same marked departure standard recognized in cases such as R. v. Hundal, (SCC), [1993] 1S.C.R. 867, Creighton and R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60. Accordingly, s. 33.1 is consistent with ss. 7 and 11(

d) of theCharter because it follows “a blueprint this Court has already endorsed as constitutional” (Condensed Book, A.G. Ontario, at p. 2).Moreover, Parliament can constitutionally preclude intoxication as a defence if it is the gravamen of the offence (R. v. Penno, (SCC), [1990] 2 S.C.R. 865, at p. 891, per Wilson J.). Here, acting on this Court’s invitation in Daviault, Parliament hassought to impose liability for the unintended consequences of a blameworthy predicate act following, in particular, R. v. DeSousa, (SCC), [1992] 2 S.C.R. 944.

(2) Threshold Issue: Internal Balancing Under

Section 7 [67] As a preliminary matter, the Court must first decide whether the rights of victims of intoxicated violence, inparticular the rights of women and children under ss. 7 and 15 of the Charter and alluded to in the

preamble to Bill C-72, should informthe analysis of a possible breach of the accused’s rights under s. 7, or whether it is appropriate to consider these interests specifically atthe justification stage under s. 1. [68] The intervener Women’s Legal Education and Action Fund Inc. (LEAF) invites this Court to balance the rights ofthe accused against the rights of women and children in the s. 7 analysis. It says that, in Daviault, there was no consideration ofcompeting rights at that stage, unlike the clear engagement with equality, security and dignity interests in Bill C-72.

These rights are notsimply other social interests that should be “relegated” to the s. 1 justification. Where courts fail to undertake balancing under s. 7 — asthe majority of the Court of Appeal did not do in Sullivan, for example — the effect is that, wittingly or unwittingly, they favourindividual rights over those of vulnerable groups who disproportionately bear the risk of intoxicated violence.

Others, including theCrown and the Canadian Civil Liberties Association, depart from this view and submit that the interests of women and children areproperly considered under s. 1 following Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, and Carter v.Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331. [69] LEAF invokes Dagenais v.

Canadian Broadcasting Corp., (SCC), [1994] 3 S.C.R. 835, and R. v.Mills, (SCC), [1999] 3 S.C.R. 668, in which this Court balanced competing Charter rights under the breach analysis.These cases involved situations where state action directly implicated multiple sets of Charter rights.

In both, the procedural rights of theaccused brought the Charter rights of another party into conflict and created the risk that both sets of rights would be undermined. [70] In my view, the Dagenais and Mills mode of analysis does not apply and does not support the argument thatbalancing between the rights and interests of alleged perpetrators and victims of crime should take place under s. 7 in this circumstance.Dagenais and Mills apply when the Charter rights of two or more parties are in conflict and both are directly implicated by state action,which is not the case here. Sec

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