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DEFENCES - Automatism - Intoxication

Monday, June 29, 2020 @ 10:32 AM  


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Appeal by the accused Sullivan and Chan from convictions. Chan, who became intoxicated after consuming magic mushrooms, killed his father and grievously injured his father’s partner. Sullivan, who became intoxicated after consuming a heavy dose of a prescription drug in a suicide attempt, repeatedly stabbed his elderly mother. Each relied on non-mental disorder automatism as their primary defence at trial. Section 33.1 of the Criminal Code removed non-mental disorder automatism as a defence where the state of automatism was self-induced by voluntary intoxication and the offence charged was a violence-based offence. The trial judge agreed with Chan that s. 33.1 was a prima facie violation of ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms (Charter) but upheld the constitutionality of s. 33.1 under s. 1 of the Charter as a demonstrably justifiable limit on the Charter rights Chan invoked. Sullivan argued s. 33.1 did not prevent him from relying on the non-mental disorder automatism defence because his intoxication was not voluntary, having resulted from a suicide attempt. The trial judge rejected this contention and found s. 33.1 to apply. Both appellants argued that s. 33.1 unconstitutionally deprived them of access to the non-mental disorder automatism defence.

HELD: Appeals allowed. A new trial was ordered for Chan. Sullivan was acquitted on all charges except breaches of recognizance. The trial judge’s reasons disclosed that s. 33.1 was the sole basis for Sullivan’s convictions of the violence-based offences. Section 33.1 was unconstitutional and of no force or effect. The trial judge erred in finding that violations of ss. 7 and 11(d) of the Charter by s. 33.1 of the Criminal Code were demonstrably justifiable under s. 1 of the Charter. Section 33.1 infringed ss. 7 and 11(d) of the Charter as it was contrary to the voluntariness principle of fundamental justice and permitted conviction without proof of voluntariness. Section 33.1 infringed the presumption of innocence guaranteed by s. 11(d) of the Charter by permitting conviction without proof of the requisite elements of the offence. Substituting voluntary intoxication for the required elements of a charged offence violated s. 11(d) because doing so permitted conviction where a reasonable doubt remained about the substituted elements of the charged offence. By enabling the Crown to prove involuntary intoxication instead of intention to assault, s. 33.1 relieved the Crown of its burden of establishing all the elements of the crimes for which Chan was prosecuted, contrary to s. 11(d) of the Charter. Section 33.1 infringed s. 7 of the Charter by permitting convictions where the minimum level of constitutional fault was not met. The Crown did not demonstrate the rational connection, minimal impairment, or the proportionality required to save the provision. The objectives of s. 33.1 were to hold individuals in a state of automatism due to self-induced intoxication accountable for their violent acts and to protect potential victims from violence-based offences committed by those who were in such a state. The accountability purpose was an improper purpose for s. 1 evaluation. Accountability was not a legitimate goal to employ to override Charter rights designed to limit accountability. The trial judge erred in building a rational connection on the accountability objective. The trial judge erred in applying the overall proportionality test, and the Crown failed to demonstrate that overall proportionality was attained. Section 33.1 enabled the conviction of individuals of alleged violence-based offences, even though the Crown could not prove the requisite elements of those offences, which was contrary to the principles of fundamental justice and the presumption of innocence. The deleterious effects of s. 33.1 included the contravention of virtually all the criminal law principles relied upon to protect the morally innocent, including the venerable presumption of innocence. Only the most compelling salutary effects could possibly be proportional to these deleterious effects.

R. v. Chan, [2020] O.J. No. 2452, Ontario Court of Appeal, D. Watt, P.D. Lauwers and D. Paciocco JJ.A., June 3, 2020. Digest No. TLD-June292020003