Post-Brown s. 33.1 and The SEIA Defence: Balancing Charter Rights and Gendered Realities

Daniella Springer, Articles Editor, University of Toronto Faculty of Law Review Volume 84 and JD Candidate (2027), University of Toronto

I.              Introduction

This paper has three basic objectives. The first is to discuss the competing interests captured by s. 33.1 of the Criminal Code.[1] A defence of self-induced extreme intoxication akin to automatism (“SEIA”) must be available to protect against ss. 7 and 11(d) Charter violations. However, acquittals on the basis of intoxication disproportionately impact the interests of women and girls. The second objective is to discuss alternatives to the current s. 33.1—specifically, the objective foreseeability standard in s. 33.1(2). Finally, this paper will argue that, despite fears of the objective foreseeability standard opening the floodgates for accused men to escape criminal liability by relying on intoxication, the practical evidence shows that such occurrences are exceedingly rare.

II.            The Defence of Self-Induced Extreme Intoxication Akin to Automatism (“SEIA”)

(1)  Pre-Brown Case Law and Legislative History

Prior to the Supreme Court ruling in R v Daviault,[2] the common law rule barred self-induced intoxication as a defence for general intent offences, such as sexual assault.[3] Daviault made the SEIA defence available to an accused who could establish, on a balance of probabilities, that their intoxication produced involuntary conduct, or automatism, at the time of the offence.[4]

            Automatism is a form of involuntariness often associated with conditions such as heart attacks, seizures, or sleepwalking, where “there is no link between mind and body.”[5] In R v Stone, Justice Bastarache observed that automatism is characterized by the “lack of voluntariness, rather than consciousness.”[6] By denying the element of voluntariness, the defence negates the actus reus.[7]

(2)  The Concern with Daviault

In R v Daviault, the Court held that evidence of extreme intoxication could constitute a defense to offences requiring general intent by negating mens rea. Daviault sparked public outrage not only because of its decision but also because of the facts on which it was based. Mr. Daviault, a chronic alcoholic, was in a state akin to automatism due to beer and brandy when he lifted a 65-year-old paralyzed woman from her wheelchair and sexually assaulted her on her bed. In Daviault, Justice Cory, writing for the majority, held that evidence of alcohol consumption cannot “lead inexorably to the conclusion that the accused possessed the requisite mental element to commit sexual assault,”[8] which the Crown must prove beyond a reasonable doubt.[9]

In response to fears that the decision would open the floodgates of accused persons escaping liability due to intoxication, Justice Cory pointed to the High Court of Australia’s decision of O’Connor.[10] In O’Connor, the Court found that the accused was so intoxicated by alcohol and hallucinogens that he lacked the mens rea to commit even a “basic intent” crime. Justice Cory held that the “O’Connor case, far from opening any floodgates, has at most permitted an occasional drip.”[11] Since Justice Cory concluded that the SEIA defence would only be accepted in rare cases, he found no reason to allow public policy to prevail over logic.[12]

However, in the months following the Daviault decision, several cases surfaced in which the SEIA defence was successful, signaling that it would not only lead to “an occasional drip,” as Justice Cory presumed.[13] Within a year of the Daviault decision, the SEIA defence was advanced at least 30 times, with the vast majority involving gendered violence.[14] Of the six cases in which the defence succeeded, four involved spousal assault.[15]

One such case was Blair, handed down within a month of Daviault, in which the accused, a chronic alcoholic, was charged with violently assaulting his wife.[16] The charge was dismissed on the basis that “he was not acting voluntarily,” given the copious amounts of alcohol and drugs he had consumed. Instead, according to the Court, he was “acting [out of] latent drives within himself that were disconnected to his free will [facilitated by] memories of spousal abuse between his mother and father.”[17]

It is uncertain how a court would decide a case like Blair today. Nonetheless, those most vulnerable to intoxicated violence—namely, women and children—suffer at the hands of decisions like Blair. These decisions fail to hold perpetrators to account when their violence is coupled with extreme intoxication.

In response to Daviault and the public outcry that followed, Parliament enacted s. 33.1 of the Criminal Code, blocking the SEIA defence where the accused departed markedly from the standard of reasonable care.

(3)  Post-Brown Switch to the “Objective Foreseeability” Standard

The revised SEIA defense was challenged in the 2022 Supreme Court case, R v Brown. The facts of Brown are that the accused recreationally consumed alcohol and magic mushrooms. After slipping into a state akin to automatism, he stripped naked, ran into the street, broke into strangers’ homes, and beat a woman with a broken broomstick, causing her severe physical and psychological injuries. At trial, the accused challenged the constitutionality of s. 33.1.

In Brown, the Court concluded that s. 33.1 was unconstitutional as it would allow courts to convict an accused for a violent act without requiring evidence of intent to commit the violent act. Instead, the statute substituted evidence of intent to commit an offence with evidence of intent to become intoxicated. As a result, the Court found that s. 33.1 violated ss. 7 and 11(d) of the Charter.[18]

      Parliament responded to Brown by amending the marked departure standard within s. 33.1(2) to include a criminal negligence standard of objective foreseeability.[19] As Professor Kent Roach explained, “Mr. Brown and Mr. Sullivan [had] totally unexpected reaction[s] to drugs and alcohol. … If it’s totally out of the blue and truly unexpected, then the Crown will not be able to prove criminal negligence,” under the current objective foreseeability standard.[20] However, this standard has caused outcry from women’s groups.

III.          Calls for Further Reform to s. 33.1: Countervailing Rights of Vulnerable Groups

The Court in Brown was criticized for allowing attackers who consume copious amounts of intoxicants to be treated with impunity.[21] According to Froc & Sheehy, the SEIA defence suggests that intoxicated violence is an “agentless crime that is an inevitable feature of life,” minimizing the harms faced by women and girls as a result.[22] In Brown, the intervening Women’s Legal Education and Action Fund expressed that when courts fail to consider the competing rights of victims, they “favour individual rights [of the accused] over those of vulnerable groups who disproportionately bear the risk of intoxicated violence.”[23] It is no secret that those most vulnerable to intoxicated violence are the most marginalized in society, particularly racialized and Indigenous women.[24]

Professor Isabel Grant expressed that the objective foreseeability standard is “unprovable [since] extreme intoxication is more likely to lead to unconsciousness or sleep [than harm to another].”[25] Thus, she submits, “Unless [the] accused … consumed the same amount of drugs and alcohol in the same circumstances and committed violence in the past, [it] is almost never going to be reasonably foreseeable that harm to another person would result.” For this reason, many women’s groups have insisted that the Brown decision—like Daviault before it—fails to protect victims of intoxicated violence.

IV.          Proposed Alternatives to the Current s. 33.1

In this section, I will provide an overview of proposed alternatives to the current s. 33.1(2) objective foreseeability standard. However, I will ultimately show that these are not foolproof solutions, and that the current system may pose less of a threat to vulnerable groups than initially anticipated.

(1)  The Case for Returning to the Post-Daviault, Pre-Brown s. 33.1

In Daviault, Justice Sopinka, dissenting, reasoned that an accused who becomes so intoxicated as to lose control over their own body is morally culpable for the actions their body takes, with or without their mind. He concluded that to punish these accused is not to punish the “morally innocent,” provided that the state was self-induced. As such, their punishment does not offend the principles of fundamental justice.

Although the Court in Brown identified scenarios in which the accused could be “morally blameless,” such as in the context of consuming intoxicants for medical purposes,[26] it is useful to consider the scenario of moral culpability that Justice Sopinka addresses.

Consider the following analogy. Imagine a traveller decides to freedive alone into a deep underwater cave. This diver has gone on similar excursions in the past during which the same warnings appeared: “Possibility of losing consciousness or control over body due to low oxygen, pressure changes, and heavy currents.” But this does not dissuade the diver. In fact, his aim is to experience the mild symptoms associated with changes in underwater pressure, such as head rushes. Shortly after diving, he blacks out. As he resurfaces from the swirling waters, he finds himself in an involuntary state and thrashes around in the water, kicking a nearby swimmer. As a result, the swimmer suffers from severe, irreversible brain damage. Upon discovering these facts, the diver claims that he did not cause the swimmer’s injury because he was “agentless.” Yet, he was the one who decided that he was willing to risk losing control over his own body, no matter how rare losing too much control seemed.

Applied to the facts of Daviault, it seems almost absurd to excuse the accused on the basis that he had no control over his actions when he voluntarily rendered himself at a loss of control. He dove into the water not only with the chance, but with the expectation, of losing self-control, albeit to an uncertain degree. He was not pushed; he jumped freely. In the aftermath of his “thrashing,” he finds himself acquitted on the basis that his body moved without his mind.

Given this apparent injustice and the criticism that followed Daviault, Parliament enacted s. 33.1 to block the SEIA defence. However, after the Court in Brown imposed the new objective foreseeability standard, women’s groups have argued that the same post-Daviault problems persist.

Under the current marked departure standard in s. 33.1(2), the Court must consider not only the objective foreseeability of the risk of (i) extreme intoxication, but also (ii) that it would lead to harm to another.

According to Professor Grant, this two-tiered objective foreseeability standard is “unworkable” because it adds layers of protection for the accused.[27] Professor Grant submits that a return to the previous s. 33.1 would safeguard against such an unattainable standard. According to Ms. Suzanne Zaccour, the first tier of the objective foreseeability standard is more problematic than it appears.[28] Zaccour hypothesizes a scenario where a habitual drinker, relying on the SEIA defence, can claim that the risk of their extreme intoxication was not foreseeable given their high tolerance, even if they are often abusive while intoxicated. Thus, the risk of harm may be objectively foreseeable where extreme intoxication is not. Professor Grant argues the second tier also poses challenges since the risk of intoxicated harm is always possible, but rarely probable.

(2)  The Case for Lowering the “Objective Foreseeability” Standard

Professor Grant submits that s. 33.1(2) should be lowered to a more attainable objective foreseeability standard of “loss of self-control.”[29]

It is Professor Grant’s position that unless an accused has repeatedly caused harm while in a state akin to automatism caused by specific intoxicants, then they can almost always escape liability. For instance, Professor Grant suggests that an accused can say, “I’ve been intoxicated before, and I wasn’t violent, so how could I have foreseen [the] harm?” This was Mr. Brown’s position when he stated that his previous experiences with magic mushrooms gave a “fuzzy but positive feeling,”[30] and the Court found “his reaction to the drug was not reasonably foreseeable.”[31] Professor Grant further submits that an accused could argue the opposite and say, “I’ve never been intoxicated before, so how could I possibly have foreseen that it would lead to violence?”

To “play the devil’s advocate,” Mr. Rhéal Fortin asked Professor Grant, “When someone consumes an intoxicating substance, isn’t there always a risk [of violence or harm that accompanies a loss of self-control]?”[32] However, at this early stage, it is unclear what would lead a court to find that a risk is objectively foreseeable. For instance, the type, amount, and frequency of consumption will all play a role in a court’s determination.

Crucially, Professor Grant’s proposed objective foreseeability standard safeguards against convictions in scenarios where an accused could not have possibly foreseen their loss of awareness or control. Prior to Brown, “intention to become intoxicated to any degree suffice[d], captur[ing] the sudden and unexpected onset of involuntariness produced by self-induced intoxication.”[33] Under this proposed objective foreseeability standard, an accused who has an unexpected reaction to a substance would be entitled to the SEIA defence.

(3)  The Case for “Carve-Outs”

In Reference re Assisted Human Reproduction Act, Chief Justice McLachlin clarified that although criminal law cannot confer positive entitlements, it can provide carve-outs or exemptions to an offence.[34] According to Brown, there are “some inherently risky forms of self-intoxication … such as mixing alcohol with dangerous street drugs” while there are other, less risky, and even innocent, forms of self-intoxication.[35] If Parliament were to re-legislate, it could remove the objective foreseeability standard and include carve-outs that ensure the constitutionality of s. 33.1. According to Brown, the primary issue with s. 33.1 was that it allowed for the conviction of the morally innocent.[36] However, if Parliament were to provide carve-outs for “morally blameless individuals who voluntarily consume legal intoxicants for personal or medical purposes,”[37] it may avoid offending such “sacrosanct” principles.

Still, there are fundamental flaws with this approach. For one, it would force Parliament to think of all scenarios in which an accused could voluntarily self-intoxicate in a “morally innocent” way. This standard is difficult to discern, in part because extreme intoxication is not a stand-alone offence. This approach would also likely lead to absolute liability for an accused who consumes illicit substances, as the criminal law system would likely not brand “morally innocent” the consumption of substances that it has already criminalized.

V.            The High Bar That Protects Against Abuse of the SEIA Defence

      After the Brown decision, the overwhelming concern was that accused men would use the SEIA defence to escape liability, and the criminal law would abandon the interests of victims of intoxicated violence. It is worth noting that in three major cases discussing the SEIA defense—R v Brown, R v Sullivan, and R v Chan—accused men were acquitted of violent crimes against female victims, save for one male victim.[38]

However, the practical evidence suggests that Brown did not, in fact, “open up the floodgates to spurious claims of intoxication.”[39] In large part, that is because intoxication must reach the level of automatism to qualify for the SEIA defense—a high bar to clear.[40] The Court in Brown held that “alcohol alone is unlikely to bring about the delusional state akin to automatism.”[41] It is also not sufficient for an accused to simply black out or suffer from memory loss due to intoxication.

In a recent case, R v Miskie, the accused sexually assaulted a sleeping girl while under the influence of alcohol, marijuana, cocaine, and Xanax.[42] He later testified that he had no recollection of the assault. Although the SEIA defence was advanced, the court found that the expert testimony and evidence did not establish that Mr. Miskie was in a state of automatism.

Despite the high bar of the SEIA defence, important questions remain. In particular, it is unclear how the courts will apply the marked departure standard in s. 33.1(2) where the accused consumes illicit drugs or dissociative anesthetics, which carry a known risk of psychosis.

Notes

[1] Criminal Code, RSC 1985, c C-46, s 33.1.

[2] R v Daviault, [1994] 3 SCR 63, 1994 CanLII 61 (SCC) [Daviault].

[3] Leary v The Queen, 1977 CanLII 2 (SCC) [Leary].

[4] Daviault, supra note 2 at para 67.

[5] Bratty v Attorney-General for Northern Ireland, [1963] AC 386 (HL) at 409; Rabey v R, 1980 CanLII 44 at 523 (SCC).

[6] R v Stone, 1999 CanLII 688 at para 224 (SCC) [Stone].

[7] R v Chaulk, [1990] 3 SCR 1303 at 1321, 1990 CanLII 34 (SCC); R v Parks, [1992] 2 SCR 871 at 896, 1992 CanLII 78 (SCC); Daviault, supranote 2 at para 7.

[8] Daviault, supra note 2 at para 42.

[9] Heather MacMillan-Brown, “No Longer ‘Leary’ About Intoxication: In The Aftermath of R. v. Daviault” (1995) 59 Sask L Rev 311 at 322.

[10] O’Connor v The Queen, (1980) 54 ALJR 349 [O’Connor].

[11] Daviault, supra note 2 at para 57.

[12] MacMillan-Brown, supra note 9 at 324.

[13] Ibid at 329.

[14] Kerri A Froc & Elizabeth Sheehy, “Last Among Equals: Women’s Equality, R v Brown, and the Extreme Intoxication Defence” (2022) 73 UNBLJ 268 at 277.

[15] Ibid at 277.

[16] R v Blair, [1994] AJ No 807 (QB) (QL) [Blair], cited in MacMillan-Brown, supra note 9 at 330.

[17] Ibid at 6.

[18] Re BC Motor Vehicle Act, [1985] 2 SCR 486 at 515, 1985 CanLII 81 (SCC); R v Brown, 2022 SCC 18 at paras 95–107, 166 [Brown].

[19] Criminal Code, supra note 1, s 33.1.

[20] Christine O’Doherty, “Episode 54: Self-Induced Intoxication: An Update on Bill C-28” (23 June 2022), online (podcast): <ciaj-icaj.ca/en/podcasts/self-induced-intoxication-an-update-on-bill-c-28/> [perma.cc/H586-HR7S].

[21] Froc & Sheehy, supra note 14 at 269.

[22] Ibid at 277.

[23] Brown, supra note 18 at para 68.

[24] Self-Induced Extreme Intoxication and Section 33.1 of the Criminal Code: Report of the Standing Senate Committee on Legal and Constitutional Affairs (April 2023) (Chair: The Honourable Brent Cotter).

[25] House of Commons, Standing Committee on Justice and Human Rights, Evidence, 44-1, No 034 (27 October 2022) (Isabel Grant) [House of Commons Standing Committee].

[26] Brown, supra note 18 at para 104.

[27] House of Commons Standing Committee, supra note 25.

[28] Ibid.

[29] Ibid.

[30] Brown, supra note 18 at para 15.

[31] Ibid at para 157.

[32] House of Commons Standing Committee, supra note 25.

[33] Brown, supra note 18 at paras 91–92.

[34] Reference re Assisted Human Reproduction Act, 2010 SCC 61 at para 234.

[35] Brown, supra note 18 at para 93.

[36] Ibid at para 24.

[37] Ibid at para 104.

[38] Froc & Sheehy, supra note 14 at 280.

[39] MacMillan-Brown, supra note 9 at 322.

[40] Brown, supra note 18 at para 43; see Director of Public Prosecutions v Beard, [1920] AC 479 (HL); Leary, supra note 3 at 57–60.

[41] Brown, supra note 18 at para 4.

[42] R v Miskie, 2024 ONCJ 145.