SEXUAL ASSAULT AND THE INTOXICATION DEFENCE (June 10, 2020)

In the past week the Ontario Court of Appeal issued a ruling on the case of R. v. Sullivan, a decision which has stirred up a lot of controversy, yet is not particularly well understood by the public. This is exacerbated by erroneous press coverage in most major news outlets. It is being reported as a case which allows drunkenness to be used as a valid defense against sexual assault. The truth is that these cases and the respective ruling, are much more complicated.

To begin with, the decision concerns not just one case, but two. In certain instances, if issues are closely related, the Ontario Court of Appeal can merge more than one case together for efficiency. This is precisely what happened with Mr. Sullivan’s case, and a closely related case, R. v. Chan.

The facts of both cases are tragic and need not be repeated here. The crucial aspect in both cases is that both Mr. Sullivan and Mr. Chan, voluntarily ingested hard drugs and committed extremely violent physical attacks against their own family members. At this point, the logical question is, how do cases involving drugs and violent attacks affect drunkenness and sexual assault.

A brief background on criminal law and constitutional law is required here. In 1989, a man by the name of Henri Daviault successfully argued that he should be able to argue extreme intoxication by alcohol as a defense to a sexual assault, of which he was accused. The public outcry was so strong, that parliament quickly passed a law, section 33.1 of the Criminal Code of Canada, which effectively eliminates intoxication as a defence to certain offences, if that intoxication is self-induced.

In Canada, all statutes and laws must comply with the Charter of Rights and Freedoms as passed in 1982. This means that if a criminal code statutes is unconstitutional, it must be struck down. Some exception are allowed, but cannot be easily summarized here. If a statute or law is found to be overly broad, affecting matters well outside of what it was they were intended to do, those laws are struck.

The underlying reasons why the  R. v. Sullivan resulted in section 33.1 being struck, is that it was used in cases which involved neither alcohol, nor sexual assault. Mr. Sullivan and Mr. Chan have very credible evidence that the hard drugs they ingested caused them to enter a state of “automatism”. This is a very specific legal term which means an individual has no mental control over their physical actions. Having no mental capability to control your movements or actions means that you cannot be found criminally responsible in Canadian law. However, section 33.1 prevent both men from raising that defense.

What’s important to remember is that “automatism” is almost impossible to prove in cases of alcohol ingestion. The accused would have to convince the court that they were so intoxicated as to not be able to control their actions. This requires expert evidence, which few accused could afford, and the amount of alcohol which would have to be ingested would have to be close enough to almost be fatal. Having a few beers or even becoming heavily intoxicated would not meet this requirement.

In addition to being overly broad, the court also found that the statue lacked proportionality. This means the wording of the law was not closely enough tied to its objective purpose. For example, Mr. Sullivan did not intend to become intoxicated, but rather experience unforeseen side effects of too much prescription medication. Yet the law which was intended to combat drunken sexual assault, a completely different offence, had the effect of denying him a legal defence.

Moving forward, one of two things will likely happen. The first, is the possibility that the Supreme Court of Canada will overturn the ruling; or second, Parliament will enact a differently worded, more specific provision to deal with the problem of drunkenness in sexual assault offences. The latter would be more preferable.

In situations such as this, it is important not to rush to judgement. Because of the way this was spun in the media, some less than scrupulous individuals might get it in their heads that ingesting a few beers will allow them to act as they please. Nothing could be further from the truth.

If you have a criminal matter or question, call Arkadiusz J. Empel at Empel Law at 416.879.8531 (x. 101)