The Constitutionality of Section 33.1: A Never-ending Story?

In recent decades, the defence of self-induced intoxication leading to automatism has had limited application in Canadian law. The common law rule from Leary v. The Queen¹ circumvented the need for the Crown to prove beyond a reasonable doubt voluntariness and the requisite mens rea for the crime charged if extreme intoxication was claimed as a defence; the fault element was imputed by the fact of voluntary intoxication.² When, in 1994, the Supreme Court of Canada held in R. v. Daviault³ that the Leary rule was an unjustifiable violation of ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms,⁴ Parliament responded the following year by passing Bill C-72.⁵ The Bill introduced s. 33.1 to the Criminal Code,⁶ which removed the automatism defence for general intent,⁷ bodily integrity offences when self-induced intoxication led to the accused being “unaware of, or incapable of consciously controlling, their behaviour.”⁸ However, the constitutionality of s. 33.1 has been in doubt since the passage of Bill C-72 through Parliament. Superior courts across the country faced with Charter challenges to s. 33.1 have come to a variety of different conclusions.⁹ Recent cases, including one decision by the Court of Appeal for Ontario,¹⁰ suggest that a review of the provision by Canada’s apex court may be overdue. This comment gives a brief overview of the controversy surrounding s. 33.1 before looking at cases from Alberta,¹¹ Ontario,¹² and Saskatchewan¹³ which reached different conclusions on the constitutionality of s. 33.1.

 

In rejecting the Leary rule as an unjustifiable limitation on the right to liberty and presumption of innocence, the majority decision in Daviault indicated that “the Charter could be complied with, in crimes requiring only a general intent, if the accused were permitted to establish that, at the time of the offence, he was in a state of extreme intoxication akin to automatism or insanity.”¹⁴ Spurred by the unremittingly negative press coverage of the decision,¹⁵ the government’s response to the Daviault decision was swift.¹⁶ The new Criminal Code provision did not restore the Leary rule in full as it only applied to general intent offences involving “an assault or any other interference or threat of interference by a person with the bodily integrity of another person.”¹⁷ However, in all other respects, it seemed like the legislative response paid little heed to Justice Cory’s judgment in Daviault. Section 33.1 established that, for these offences, it was not a defence “that the accused, by reason of self-induced intoxication, lacked the general intent or the voluntariness required to commit the offence.”¹⁸

Bill C-72’s amendment to the Criminal Code has elicited a variety of different reactions. For Martin Shain, the new provision “essentially roll[ed] back the majority decision in Daviault.”¹⁹ Others agreed that the legislative change did not fundamentally accord with Daviault’s majority decision.²⁰ If Bill C-72 was part of a dialogue between the judiciary and the federal legislative body,²¹ Parliament’s response seemed like a provocation. Nonetheless, not all observers agreed that s. 33.1 was clearly unconstitutional.²² For one, it has been argued that a piece of legislation is owed greater deference than a common law rule;²³ legislative objective is a critical piece of the s. 1 analysis of whether a limitation on rights is reasonable.²⁴ Second, and related to this, Parliament had, in passing Bill C-72, considered a large volume of evidence showing both the scientific implausibility of automatism through self-induced intoxication and the disproportionate effect of violent acts by intoxicated offenders on women and children.²⁵ Indeed, while s. 33.1 trenches on the s. 7 and 11(d) Charter rights of the accused, it also protects equality rights and women and children’s right to security of the person.²⁶ It seems, then, the wider societal concerns that apparently animate the law could offset the diminution of the rights of the accused in a s. 1 analysis.

 

Courts, when faced with an accused seeking to raise the defence, have divided on the constitutionality of s. 33.1. Superior courts in British Columbia,²⁷ Ontario,²⁸ Quebec,²⁹ Nunavut,³⁰ and Saskatchewan³¹ have affirmed the constitutionality of the provision whereas the provision has been declared an unreasonable limit on Charter rights in the Northwest Territories³² and in multiple other decisions in Ontario.³³ Just recently, the Court of Appeal for Ontario has weighed in to address this jurisprudential incoherence, finding s. 33.1 unconstitutional.³⁴ The Supreme Court of Canada, on the other hand, has to this point refrained from ruling on the provision’s constitutionality despite deciding on a question involving s. 33.1 in R. v. Bouchard-Lebrun.³⁵ Although the provision’s constitutionality was not argued in Bouchard-Lebrun, Dennis Baker and Rainer Knopff argue that the judgment amounted to a “camouflaged second look”³⁶ at the self-induced intoxication defence in which the Court “quietly and implicitly accepted the constitutionality of s 33.1.”³⁷ This claim, however, is unpersuasive in light of Justice LeBel’s cautiously delineated judgment.³⁸ In any event, with questions regarding the constitutionality of s. 33.1 appearing once again in recent cases,³⁹ trial judges across the country have certainly not treated Bouchard-Lebrun as binding authority.

 

Mirroring the earlier jurisprudence, courts in recent s. 33.1 cases have diverged when the constitutionality of the provision has been challenged. While Charter applications were dismissed in Robb⁴⁰ and Chan,⁴¹ s. 33.1 was found to be unconstitutional and declared of no force and effect in R. v. B.⁴² and McCaw.⁴³ Most recently, in Sullivan, the Court of Appeal for Ontario considered an appeal of the Chan decision⁴⁴ and found s. 33.1 to be unconstitutional.⁴⁵ The offences involved in each of the cases varied in seriousness: in R. v. B. the accused was charged with two break and enter with intent offences;⁴⁶ Robb and McCaw both involved sexual assaults;⁴⁷ and in Chan, the accused was charged with murder, attempted murder, and aggravated assault.⁴⁸ The intoxicants involved in each case also varied from alcohol alone⁴⁹ to magic mushrooms,⁵⁰ to a combination of alcohol, marijuana, and GHB.⁵¹ Consistent with earlier cases, in each instance, each court found that the provision infringed on the accused’s right to liberty and the presumption of innocence set out by ss. 7 and 11(d) by permitting a conviction where there could be reasonable doubt regarding the accused’s intention to commit the crime and the voluntariness of the accused’s actions.⁵² The different outcomes in each case hinged instead on the application of the Oakes test⁵³ with differences in the interpretation of the legislative objective and the degree of deference owed to Parliament.

 

In Robb and Chan, the two decisions upholding s. 33.1 as a reasonable limit on ss. 7 and 11(d) Charter rights, each court accepted that the extensive preamble to Bill C-72 effectively captures the purpose of the legislation.⁵⁴ In Robb, the Court outlined the “principle objectives” of Bill C-72 and its amendments to the Criminal Code as follows:

 

(1) [T]o ensure the accountability of those who, in a state of self-induced intoxication, cause harm to others; and (2) to protect security interests and equality rights of women and children, who are disproportionately subject to intoxicated violence, particularly sexual and domestic violence.⁵⁵

This interpretation of the purpose of s. 33.1 shaped the subsequent analyses and each court found a pressing and substantial objective and a rational connection between the purpose and the law. The emphasis on protection of third parties in the framing of the law’s objective also informed the minimal impairment analysis. Each court found that the parliamentary record provides ample evidence that other alternatives were considered and rejected for valid reasons⁵⁶ and the provision is sufficiently tailored to show minimal impairment.⁵⁷ Additionally, more deference is required when Parliament passes a law designed to protect Charter rights.⁵⁸ Finally, in both Robb and Chan, the broad salutary societal effects were held to outweigh the deleterious ones, which are acknowledged as serious but restricted in scope given the limited number of defendants affected.⁵⁹ By contrast, in McCaw, Justice Spies cast the purpose of the legislation in exceptionally narrow terms. Spies J. found that Parliament’s intention was simply to make “unavailable a very specific defence that was allowed in Daviault.”⁶⁰ This narrow interpretation’s incapability of supporting a pressing and substantial objective effectively concluded the s. 1 analysis.⁶¹

 

In Sullivan, overturning Chan and finding that s. 33.1 of the Criminal Code could not be sustained under s. 1 of the Charter, the Court of Appeal for Ontario cast the purpose of the provision differently than it had been in both Chan and McCaw. The Court found that the objective of the provision had been overstated in Chan.⁶² Overstating legislative objectives, in the view of the Court, introduces the danger that the “importance [of the objectives] may be exaggerated and the entire s. 1 analysis compromised.”⁶³ The Court also noted that casting the objective too narrowly, as it had been in McCaw, was equally problematic.⁶⁴ The Court found that viewing the purpose of s. 33.1 as being merely to remove the Daviault defence was to “mask[] the underlying reason why Parliament wanted to remove that narrow defence, and it improperly confuses the means of the legislation with its purpose.”⁶⁵ The Court in Sullivan found that while the protective purpose of the legislation satisfied the pressing and substantial purpose requirement of the Oakes test,⁶⁶ the means employed by the provision lacked a rational connection with its objective,⁶⁷ the provision was not minimally impairing,⁶⁸ and it failed to meet the overall proportionality requirement.⁶⁹

 

Unusually for a decision rejecting the constitutionality of s. 33.1, Justice deWit in R. v. B. accepted that Parliament was attempting to protect vulnerable groups from intoxication-related violence.⁷⁰ Here, however, s. 33.1 failed at the minimal impairment and proportionality of salutary and deleterious effects stages.⁷¹ In a thoughtful examination of the evidence surrounding Bill C-72 heard before the Justice Committee, deWit J. highlighted the unpredictable effect of intoxicants on some individuals.⁷² In view of this, Parliament’s interest in imposing accountability on those guilty of a bodily integrity offence while in an intoxication-induced automaton state could be achieved through less rights-impairing means. Specifically, deWit J. proposed an objective standard of care that would assess “whether objectively the person knew the consumption of drugs or alcohol could leave them in a state where they could become unaware of, or incapable of consciously controlling their behaviour and then interfere or threaten to interfere with the bodily integrity of another person.”⁷³ According to deWit J., the Crown’s requirement to prove mens rea and voluntariness of the actus reus—fundamental “sacrosanct principles” of the criminal justice system—are undermined by s. 33.1 and, consequently, the negative effects of the law outweigh the benefits achieved.⁷⁴

 

While the Court of Appeal for Ontario’s decision in Sullivan is a welcome intervention that may resolve many questions on the constitutionality of s. 33.1 of the Criminal Code and settles the matter in Ontario, the Supreme Court of Canada may nonetheless be well advised to weigh in given the inconsistent jurisprudence from other provinces. From the outset, s. 33.1 caselaw has been marked by legal dissonance, which has been amplified by the most recent batch of judgments. The time has surely come for the Supreme Court of Canada to clarify the state of the law. Judgments considering s. 33.1 often note that true automaton incidents are extremely rare,⁷⁵ while a study of the post-Daviault, pre-Bill C-72 caselaw also provided evidence of the defence’s limited use and utility.⁷⁶ Nonetheless, as deWit J. underlined in R. v. B., the principles involved—the need for voluntariness and intent, and the presumption of innocence—are of fundamental importance. Indeed, failure to resolve the uncertainty and division on these integral and foundational concepts risks damaging the coherence of the criminal justice system.

 

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^* JD Candidate (Saskatchewan).

 

¹ (1977), [1978] 1 SCR 29, 1977 CanLII 2 [Leary cited to SCR].

 

² The majority in Leary explained the rule as follows:

 

If the accused was drunk at the time of the alleged offence but it is proved that he did the act intentionally or recklessly, it is irrelevant that but for the drinking he would never have done the act. The intent or recklessness, constituting the necessary mental element, is present and the fact that, by reason of drink, his judgment and control relaxed so that he more readily gave way to his instinctual drives, avails him nothing.

 

(Ibid at 44).

 

³ [1994] 3 SCR 63, 1994 CanLII 61 [Daviault cited to SCR].

 

⁴ Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].

 

⁵ Bill C-72, An Act to amend the Criminal Code (self-induced intoxication), 1st Sess, 35th Parl, 1995 (assented to 13 July 1995), SC 1995, c 32.

 

⁶ RSC 1985, c C-46.

 

⁷ In R v Bernard, [1988] 2 SCR 833 at 863, 1988 CanLII 22, the difference between general intent and specific intent offences was described by Justice McIntyre as follows:

 

The general intent offence is one in which the only intent involved relates solely to the performance of the act in question with no further ulterior intent or purpose. The minimal intent to apply force in the offence of common assault affords an example. A specific intent offence is one which involves the performance of the actus reus, coupled with an intent or purpose going beyond the mere performance of the questioned act. Striking a blow or administering poison with the intent to kill, or assault with intent to maim or wound, are examples of such offences.

 

More recently, Justice Moldaver affirmed that specific intent offences require “a heightened mental element” whereas general intent offences “require very little mental acuity”: R v Tatton, 2015 SCC 33 at para 39, [2015] 2 SCR 574.

 

⁸ Criminal Code, supra note 6, s 33.1(2).

 

⁹ For earlier judgments affirming the constitutionality of s. 33.1, see R v Vickberg (1998), 16 CR (5th) 164, 1998 CanLII 15068 (BCSC) [Vickberg]; R v Decaire, [1998] OJ No 6339 (QL) (Ont Ct J (Gen Div)) [Decaire]; R v T.(B.J.), 2000 SKQB 572, 200 Sask R 42 [T.(B.J.)]; Dow v R, 2010 QCCS 4276, 261 CCC (3d) 399 [Dow]; R v S.N., 2012 NUCJ 2 [S.N.]. For judgments finding s. 33.1 unconstitutional, see R v Dunn (1999), 28 CR (5th) 295, [1999] OJ No 5452 (QL) (Ont Sup Ct) [Dunn]; R v Brenton (1999), 180 DLR (4th) 314, 1999 CanLII 13930 (NWTSC) [Brenton]; R v Jensen, [2000] OJ No 4870 (QL) (Ont Sup Ct) [Jensen]; R v Polo Cedeno, 2005 ONCJ 91, 27 CR (6th) 251 [Polo Cedeno]; R v Fleming, 2010 ONSC 8022 [Fleming].

 

¹⁰ See R v Sullivan, 2020 ONCA 333 [Sullivan].

 

¹¹ R v B., 2019 ABQB 770.

 

¹² R v Chan, 2018 ONSC 3849, 365 CCC (3d) 376 [Chan]; R v McCaw, 2018 ONSC 3464, 416 CRR (2d) 99 [McCaw].

 

¹³ Robb v R, 2019 SKQB 295 [Robb].

 

¹⁴ Daviault, supra note 3 at 103.

 

¹⁵ A Toronto Star headline questioned whether the judgment provided “a licence to rape”: Debra Black, “A licence to rape?: Women fear that a Supreme Court ruling tells men sexual assault is okay as long as they're drunk”, Toronto Star (27 October 1994) E1. See also David Vienneau, “Drinking ruled a rape defence: Feminists outraged at Supreme Court decision”, Toronto Star (1 October 1994) A1; Greg McIntyre, “‘Terrifying’ judges blasted: Women rap rape decision”, The [Vancouver] Province (2 October 1994) A8; “Drunks who rape and go free; Top court ruling means law should be changed”, The [Montreal] Gazette (4 October 1994) B2; “Criminal defence of drunkenness an offence to reason”, The Vancouver Sun (5 October 1994) A10; David Vienneau, “Judges under fire for drunkenness defence: Top Court ruling ‘wreaked havoc’ on other judges”, Toronto Star (9 November 1994) A2; David McNevin, “Drunkenness was never a defence...: At least, it never used to be. Relaxation of the strict rules about mitigating circumstances, however, has meant that ‘the most heinous crimes’ will be committed with relative impunity. Society has been warned”, The Windsor Star (2 December 1994) A7.

 

¹⁶ The Daviault decision was released on September 30, 1994 and Bill C-72 was assented to on July 13, 1995.

 

¹⁷ Criminal Code, supra note 6, s 33.1(3).

 

¹⁸ Ibid, s 33.1(1).

 

¹⁹ Martin Shain, “The Charter and Intoxication: Some Observations on Possible Charter Challenges to an Act to Amend the Criminal Code (Self-Induced Intoxication), 1995, C-72” (1996) 23:4 Contemporary Drug Problems 731 at 733.

 

²⁰ See e.g. Peter W Hogg & Allison A Bushell, “The Charter Dialogue Between Courts And Legislatures (Or Perhaps The Charter of Rights Isn't Such A Bad Thing After All)” (1997) 35:1 Osgoode Hall LJ 75 (“Parliament's part in the dialogue on this issue reads like a rebuttal of the majority's position in Daviault” at 104). See also Michelle S Lawrence, “Voluntary Intoxication and the Charter: Revisiting the Constitutionality of Section 33.1 of the Criminal Code” (2017) 40:3 Man LJ 391; Heather MacMillan-Brown, “No Longer ‘Leary’ About Intoxication: In the Aftermath of R. v. Daviault” (1995) 59:2 Sask L Rev 311 at 331–33; Gerry Ferguson, “The Intoxication Defence: Constitutionally Impaired and in Need of Rehabilitation” (2012) 57 SCLR 111.

 

²¹ See generally Hogg & Bushell, supra note 20.

 

²² See Isabel Grant, "Second Chances: Bill C-72 and the Charter" (1995) 33:2 Osgoode Hall LJ 379; Kelly Smith, “Section 33.1: Denial of the Daviault Defence Should Be Held Constitutional” (2000) 28 CR (5th) 350.

 

²³ Grant, supra note 22 at 400.

 

²⁴ See e.g. RJR-MacDonald Inc. v Canada (Attorney General), [1995] 3 SCR 199 at paras 60, 126, 1995 CanLII 64 [RJR-MacDonald], citing R v Oakes, [1986] 1 SCR 103, 1986 CanLII 46 [Oakes].

 

²⁵ See Smith, supra note 22.

 

²⁶ Grant, supra note 22 at 394.

 

²⁷ See Vickberg, supra note 9.

 

²⁸ See Decaire, supra note 9.

 

²⁹ See Dow, supra note 9.

 

³⁰ See S.N., supra note 9.

 

³¹ See T.(B.J.), supra note 9.

 

³² See Brenton, supra note 9.

 

³³ See Dunn, supra note 9; Jensen, supra note 9; Polo Cedeno, supra note 9; Fleming, supra note 9.

 

³⁴ See Sullivan, supra note 10 at para 161.

 

³⁵ 2011 SCC 58, [2011] 3 SCR 575 [Bouchard-Lebrun]. The case centered on whether an accused who had voluntarily taken drugs that had left him in a psychotic state prior to committing an aggravated assault could claim the defence of mental disorder under s. 16 of the Criminal Code or if s. 33.1 applied on the facts of the case (ibid at paras 1, 23).

 

³⁶ Dennis Baker & Rainer Knopff, “Daviault Dialogue: The Strange Journey of Canada's Intoxication Defence” (2014) 19:1 Rev Const Stud 35 at 53.

 

³⁷ Ibid at 52.

 

³⁸ Bouchard-Lebrun, supra note 35 at para 28.

 

³⁹ Both the Court in McCaw (supra note 12 at paras 88–90) and the Court in Chan (supra note 12 at para 62) expressly rejected the notion that Bouchard-Lebrun limits them. The Bouchard-Lebrun decision is also referenced in R v B. (supra note 11 at para 90), but without any indication as to whether it is in any way binding.

 

⁴⁰ Supra note 13 at para 58–59.

 

⁴¹ Supra note 12 at para 161.

 

⁴² Supra note 11 at para 92.

 

⁴³ Supra note 12. Justice Spies decided the case on the fact that s. 33.1 was already of no force and effect in Ontario due to the earlier declaration of invalidity by the Ontario Superior Court of Justice in Dunn (supra note 9) but, in the alternative, proceeded to carry out a Charter analysis of the provision: McCaw, supra note 12 at paras 77, 84–85.

 

⁴⁴ In Sullivan, supra note 10, the Court considered separate appeals by two individuals. Each of the accused sought to “rel[y] on non-mental disorder automatism as their primary defence” (ibid at para 6). In an unreported trial decision, Mr. Sullivan was convicted of aggravated assault (ibid at para 175). While the constitutionality of s. 33.1 was not raised at trial, Mr. Sullivan sought to challenge the provision on appeal (ibid at para 179). Mr. Chan appealed from the decision in Chan, supra note 12, which upheld the constitutionality of s. 33.1.

 

⁴⁵ Sullivan, supra note 10 at para 161.

 

⁴⁶ Supra note 11 at para 1.

 

⁴⁷ Robb, supra note 13 at para 1; McCaw, supra note 12 at para 1.

 

⁴⁸ Supra note 12 at para 2. The defence of self-induced intoxication remained available to the accused against the charges of murder and attempted murder as specific intent offences (ibid at para 3).

 

⁴⁹ Robb, supra note 13 at para 2.

 

⁵⁰ R v B., supra note 11 at para 1; Chan, supra note 12 at para 2.

 

⁵¹ McCaw, supra note 12 at para 3. The judgment refers to “GBD” but presumably intended to reference GHB (Gamma Hydroxybutyrate).

 

⁵² R v B., supra note 11 at paras 31, 37; Chan, supra note 12 at paras 71, 103; McCaw, supra note 12 at para 114; Robb, supra note 13 at para 18; Sullivan, supra note 10 at para 95.

 

⁵³ See Oakes, supra note 24 at 135–40.

 

⁵⁴ Robb, supra note 13 at para 25; Chan, supra note 12 at para 115.

 

⁵⁵ Robb, supra note 13 at para 25.

 

⁵⁶ Chan, supra note 12 at paras 137–39; Robb, supra note 13 at para 48.

 

⁵⁷ Chan, supra note 12 at paras 130–34; Robb, supra note 13 at paras 49–51.

 

⁵⁸ Robb, supra note 13 at para 46, citing RJR-MacDonald, supra note 24 at 305.

 

⁵⁹ Chan, supra note 12 at paras 151–57; Robb, supra note 13 at paras 55–57.

 

⁶⁰ McCaw, supra note 12 at para 128.

 

⁶¹ Ibid at para 131.

 

⁶² Sullivan, supra note 10 at paras 101, 106.

 

⁶³ Ibid at para 106, citing RJR-MacDonald, supra note 24 at para 144.

 

⁶⁴ Sullivan, supra note 10 at para 108.

 

⁶⁵ Ibid.

 

⁶⁶ Ibid at paras 100–18.

 

⁶⁷ Ibid at paras 119–22.

 

⁶⁸ Ibid at paras 123–43.

 

⁶⁹ Ibid at paras 144–60.

 

⁷⁰ Supra note 11 at para 55.

 

⁷¹ Ibid at paras 84–91.

 

⁷² Ibid at paras 65–76.

 

⁷³ Ibid at para 80.

 

⁷⁴ Ibid at paras 89–91.

 

⁷⁵ See e.g. Daviault, supra note 3 at 93; R v B., supra note 11 at para 87; McCaw, supra note 12 at para 129; Chan, supra note 12 at para 126.

 

⁷⁶ Martha Drassinower & Don Stuart, “Nine Months of Judicial Application of The Daviault Defence” (1995) 39 CR (4th) 280.