In the summer of 2020, you may have seen a petition circulating social media urging the Crown to appeal two related cases that were heard at the Ontario Court of Appeal: R. v. Sullivan and R. v. Chan. The issue pinpointed by this petition and the attention surrounding these cases seemed to be that they would make it easier for perpetrators of sexual assault to be acquitted thus further marginalizing survivors of sexual assault. It is understandable that the offence of sexual assault brings out strong emotions in people. Sexual assault is a harrowing and life-altering experience. That being said, the subsequent attention and critique these cases attracted misunderstands the state of the law.

While the circumstances of Sullivan and Chan were tragic, neither of them dealt with sexual assault. In Sullivan, Mr. Sullivan ingested multiple doses of a drug in a suicide attempt. This drug caused psychosis, and he stabbed his mother repeatedly—believing her to be an alien. In Chan, Mr. Chan ingested “magic mushrooms.” He began experiencing hallucinations, including believing that he was God. He broke into his father’s house, stabbing his father several times as well as injuring his father’s partner. Both Mr. Sullivan and Mr. Chan experienced extreme intoxication.

The main issue in these appeals hinged on the constitutionality of section 33.1 of the Criminal Code. Section 33.1 essentially states that an accused cannot use the defence that they were so intoxicated that they lacked the general intent or voluntariness to commit the offence, if that intoxication was self-induced. Criminal offences either involve general intent or specific intent. General intent offences, like assault or even sexual assault, require very minimal mental acuity; usually the fact that you committed the offence is enough to prove the mental element. The thinking behind section 33.1 is that if these offences have such a low threshold when it comes to their mental element, then whether an accused is intoxicated is irrelevant. What the Court of Appeal said in Sullivan and Chan is that when it comes to extreme intoxication, that level of intoxication not irrelevant. In fact, the Court struck down section 33.1, ruling that an accused could now used this defence. The backlash began.

The backlash to the defence, however, is not new. In 1994, the Supreme Court released its judgment in R. v. Daviault. In Daviault, the accused had consumed seven to eight bottles of beer and almost an entire 40-ounce bottle of brandy. He was accused of sexually assaulting the complainant, although he had no recollection of that. A pharmacologist testified that someone at that level of intoxication could experience a blackout and lose touch with reality. The Supreme Court found that extreme intoxication, even when self-induced, can be a used as a defence. It dubbed such extreme intoxication as being “akin to automatism.” The Court noted that while it is an available defence, it is not a defence that can normally be successfully mounted.

There was a similar critique in response to Daviault as there is now to Sullivan and Chan. At that time, Parliament enacted section 33.1 to preclude accused persons from relying on Daviault and the extreme intoxication defence. Sixteen years later, Sullivan and Chan basically reiterated the arguments in Daviault. Not only do the arguments still seem pertinent, the link of this defence to sexual assault through Daviault seems to still be fresh in people’s minds.

Yet it is important to understand the reasoning behind these decisions. We have to understand the fundamental principles of criminal law and justice. One of the most fundamental principles underlying Daviault, Chan, and Sullivan—and criminal law in general—is the principle of voluntariness. It is said that criminal law sanctions actions that an individual does voluntarily. The concept of voluntariness is behind every offence, and it must be demonstrated. But what if the accused does not have awareness and control over their actions? What if they have no concept of what has occurred? Section 33.1 allows an accused to be convicted for involuntary acts (acts that cannot be said to truly be their own), which violates their Charter right to life, liberty, and security of the person and their guarantee of the presumption of innocence. Furthermore, it is the Crown’s duty to prove all requisite elements of an offence beyond a reasonable doubt; section 33.1 allows them to circumvent this requirement.

No matter how ostensibly heinous an offence is or how unsympathetic or unsavoury an accused person is, we cannot pick and choose how fundamental principles are applied and who is afforded these protections. If we did that, our rights would become meaningless. The Crown would then become our judge and jury. It is doubtful that anyone would want to live in such a state of affairs.

Sullivan and Chan and the critiques that follow them present a good time to reflect on the principles of criminal law and how the justice system functions. We must understand and appreciate these principles. We must understand that extreme intoxication is not a catch-all defence. It is not an easy thing to prove in the slightest, and it cannot be emphasized enough that this defence is reserved for the rarest of cases. But our justice system is better for having rulings like Sullivan and Chan.

By |2023-08-11T10:34:18+00:00December 21st, 2020|Sexual Assault|

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Law Society of Ontario
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