Getting Drunk is not a Defence to Sexual Assault: Misleading Headlines in the Media

by: Laura Remigio, Associate

“Ontario Court of Appeal rules intoxication can be used as a defence in sexual assault and violent crimes cases”.  This was the headline on CP24 and other news outlets in relation to the Ontario Court of Appeal decision in R. v. Sullivan, 2020 ONCA 333. (The full decision can be read here.)

This headline, and others like it, have caused understandable concern and outrage in the community, especially in light of the Me Too movement and the changes that have been made to the laws regarding sexual assault, such as amendments in Bill C-51 relating to s. 276 applications and the compelled disclosure of records in the defence possession, including text messages.   (Our firm has previously discussed this subject.)

These headlines resulted in outrage and a number of petitions to appeal the cases. Even Ms. Andrew, an NDP MPP, made statements urging the Ministry of the Attorney General to appeal the case, calling the case “a step backwards for the safety of women and girls”.[i]

R. v. Sullivan DOES NOT make intoxication a defence to sexual assault or other violent crimes, despite what the media suggests.

The Ontario Court of Appeal heard both the appeals of Mr. Chan and Mr. Sullivan, neither of which were charged with sexual assault and neither of which were drunk at the time of the offence. Both accused people alleged that were in states of psychosis as the unintended consequence of ingesting substances: for Mr. Chan it was “magic mushrooms”, a substance that he had taken before with no unintended consequences; and for Mr. Sullivan, he entered into a state of psychosis after consuming a heavy dose of a prescription drug in a suicide attempt.  It is important to note that these accused men were not alleging intoxication as a defence to their alleged crimes but automatism:

Automatism is defined as “a state of impaired consciousness, rather than unconsciousness, in which an individual, though capable of action, has no voluntary control over that action”: R. v. Stone, [1999] 2 S.C.R. 290, at para. 156, per Bastarache J.  Involuntariness is therefore the essence of automatism.  The “mind does not go with what is being done”: Rabey v. The Queen, [1980] 2 S.C.R. 513, at p. 518, citing R. v. K., [1971] 2 O.R. 401 (S.C.), at p. 401.[ii]

Automatism is not the same as being intoxicated or even “black out” drunk.  Automatism is a very particular mental state, in which a person is found to be so intoxicated that they have “no voluntary control” over their actions.

These sort of mental states are exceedingly rare and the onus is on the defence to provide medical expert evidence to show that the accused had no control over him or herself at the time of the offence.  Essentially, the defence has the onus to prove the accused did not have any free will and their mind and body are totally out of their control.  It’s an extremely difficult defence to make out.

What the Ontario Court of Appeal overturned was s. 33 of the Criminal Code, namely that a person would be responsible for violent crimes even if they had no control or understanding that they were committing them. It made no difference under this law whether the person did not intend to become extremely intoxicated, nor whether they had any intention to harm anyone. Even if a person did something when they had absolutely no control over their body, or were in a state of psychosis or an automatic state, they would be convicted.

This is important to consider, as the main tenant of the criminal law is that a person should only be found guilty of a crime IF they had requisite mens rea, meaning that the accused person had the intention or knowledge that what they were doing, when they were doing it was wrong.

The Ontario Court of Appeal also noted in their decision that “according to evidence that Parliament has accepted, alcohol intoxication is not capable, on its own, of inducing a state of automatism.” [iii]  This line by the Court makes it clear that alcohol induced intoxication would not rise to the state of automatism, thus this defence could not be used as a defence in cases where an accused person committed an offence when they were drunk.

The Court also recognized that s. 33.1 is not targeted at alcohol- induce violence in general, but at the uncommon circumstance of violence committed by offenders while in a state of automatism as the result of self-induced intoxication.

The Court of Appeal’s decision is approximately 87 pages in length and is extremely well reasoned. The Court found that s. 33.1 infringes an accused person’s Charter rights “by enabling the conviction of accused persons who do not have the constitutionally required level of fault for the commission of a criminal offence”.  The reason the law was overturned was that it was punishing people for actions that they were not morally responsible for: “ [p]ut simply, the deleterious effects of s. 33.1 include the contravention of virtually all the criminal law principles that the law relies upon to protect the morally innocent, including the venerable presumption of innocence.” [iv]

Throughout this case the Court of Appeal was very careful to define the parameter of when the automatism defence could be used and when it could not be, and despite how the media portrayed this case, general intoxication cannot be used as a defence for sexual assault cases or cases of violent crime.

[i] NDP “Ontario court ruling, a step backward for safety of women and girls”

Jill Andrew, “Appeal the Decision”

[ii] R. v. Sullivan, 2020 ONCA 333 at para 2.

[iii] Sullivan at para 137.

[iv] Sullivan at para 153.