R. v. Brown, 2022 SCC 18 – Constitutional law — Charter of Rights — Fundamental justice

On appeal from a judgment of the Alberta Court of Appeal (2021 ABCA 273) setting aside a decision of Hollins J. (2020 ABQB 166).

At a house party, B consumed alcohol and magic mushrooms. Magic mushrooms contain psilocybin, an illegal drug that can bring about hallucinations. B lost his grip on reality and left the house. B was not simply drunk or high: while capable of physical movement, he was in a psychotic state and had no willed control over his actions. He broke into the nearby house of a stranger and attacked the occupant, causing permanent injuries. He then broke into another residence and the occupants called the police. B was charged with break and enter and aggravated assault, and with break and enter and mischief to property over $5,000.

At trial, B argued that he was not guilty of the offences by reason of automatism caused by the consumption of psilocybin. Expert evidence adduced at trial confirmed that B had no voluntary control over his conduct at the time. The Crown invoked s. 33.1 of the Criminal Code as a means of precluding B from relying on self‑induced intoxication akin to automatism as a defence to the charge of aggravated assault. Parliament added s. 33.1 to the Criminal Code in response to R. v. Daviault, [1994] 3 S.C.R. 63. The Court in Daviault confirmed the common law rule that intoxication is not a defence to crimes of general intent, but a majority recognized that the Charter mandated an exception where intoxication is so extreme that an accused falls into a condition akin to automatism and is incapable of voluntarily committing a guilty act or of having a guilty mind. Section 33.1 was enacted to address the constitutional failings identified by the majority in Daviault in a manner that would properly reflect the blameworthiness of the extremely self-intoxicated accused identified by the dissent. Section 33.1 blocks the defence of automatism for general intent crimes designated in s. 33.1(3), including aggravated assault and sexual assault.

B challenged the constitutionality of s. 33.1. The voir dire judge concluded that s. 33.1 violates the principles of fundamental justice and the presumption of innocence guaranteed by ss. 7 and 11(d) of the Charter and that the violations are not justified pursuant to s. 1 of the Charter. He declared s. 33.1 to be of no force and effect pursuant to s. 52(1) of the Constitution Act, 1982. As a result, B was entitled to raise the defence of extreme intoxication akin to automatism at trial. The trial judge found that the defence was an answer to both charges and entered acquittals. The Court of Appeal reversed the declaration that s. 33.1 was of no force or effect, set aside the acquittal on the count of break and enter and aggravated assault, and entered a conviction for that offence. The acquittal on the mischief charge was unaffected by s. 33.1 and not appealed.

Held (9-0): The appeal should be allowed. Section 33.1 of the Criminal Code should be declared unconstitutional and of no force or effect pursuant to s. 52(1) of the Constitution Act, 1982. The acquittal on the count of unlawful break and enter of a dwelling house and committing aggravated assault therein should be restored.

This is not a drunkenness case. B consumed a drug which, taken in combination with alcohol, provoked psychotic, delusional and involuntary conduct. Criminal liability for violent conduct produced by alcohol alone, short of the psychotic state akin to automatism experienced by B, is not in issue. The outcome of the declaration of unconstitutionality with respect to s. 33.1 has no impact on the rule that intoxication short of automatism is not a defence to violent crimes of general intent, such as assault or sexual assault. While s. 33.1 is unconstitutional, there may well have been other paths for Parliament to achieve its legitimate aims connected to combatting extreme intoxicated violence. The sense that an accused who acts violently in a state of extreme self‑induced intoxication is morally blameworthy is by no means beyond the proper reach of the criminal law. Protecting the victims of violent crime — particularly in light of the equality and dignity interests of women and children who are vulnerable to intoxicated sexual and domestic violence — is a pressing and substantial social purpose. And it was not impermissible for Parliament to enact legislation seeking to hold an extremely intoxicated person accountable for a violent crime when they chose to create the risk of harm by ingesting intoxicants.

Section 33.1(1) of the Criminal Code eliminates the defence of self‑induced intoxication akin to automatism applied to the violent offences identified in s. 33.1(3) where the accused departs markedly from the standard of care described in s. 33.1(2). Section 33.1 does not create a new predicate act offence of self-induced extreme intoxication or a new criminal negligence offence. The accused faces the full stigma of conviction and the full brunt of punishment for the general intent offence pointed to in s. 33.1(3). Section 33.1 applies when three conditions are met: the accused was intoxicated at the material time, the intoxication was self‑induced, and the accused departed markedly from the standard of reasonable care generally recognized in Canadian society by interfering or threatening to interfere with the bodily integrity of another person. When these three things are proved, it is not a defence that the accused lacked the general intent or the voluntariness required to commit the offence named in s. 33.1(3). The requirements of s. 33.1 are not, together or separately, a measure of fault; they are conditions of liability, as the use of the word “while” in s. 33.1(2) confirms. The marked departure described in s. 33.1(2) depends on proof of two facts: that the person was in a state of self‑induced intoxication that rendered them unaware of, or incapable of controlling, their behaviour, and that the violent act occurred while they were in that state. These facts are conditions of liability and not measures of fault because neither of them import a criminal negligence standard. Thus s. 33.1 deems criminal fault for the violent offence to be present based on the accused’s choice to become intoxicated. What Parliament sought was to impose liability for the charged offence, and not the act of self‑induced intoxication itself.

The rights of victims of intoxicated violence, in particular the rights of women and children, should be considered at the justification stage under s. 1 of the Charter rather than informing the analysis of a possible breach of the accused’s rights under s. 7. Balancing competing Charter rights under the breach analysis should occur where the rights of the accused and another party conflict and are directly implicated by state action. The equality, dignity and security interests of vulnerable groups informed the overarching public policy goals of Parliament but they are best considered under s. 1.

Section 33.1 breaches s. 7 of the Charter by allowing a conviction without proof of mens rea or proof of voluntariness. It is a principle of fundamental justice that proof of penal negligence, in the form of a marked departure from the standard of a reasonable person, is minimally required for a criminal conviction, unless the specific nature of the crime demands subjective fault. Section 33.1 requires an intention to become intoxicated but intention to become intoxicated to any degree suffices — it matters little that a person did not foresee their loss of awareness or control, and nothing is said about the licit or illicit nature of the intoxicant or its known properties. For this reason, while s. 33.1 applies to those who recklessly invite their loss of control, it also captures unexpected involuntariness, for example an unexpected reaction to a prescribed pain medication. It also imposes criminal liability where a person’s intoxication carries no objective foreseeability of harm. Furthermore, instead of asking whether a reasonable person would have foreseen the risk and taken steps to avoid it and whether the failure to do so amounted to a marked departure from the standard of care expected in the circumstances, s. 33.1 deems a marked departure to be present whenever a violent act occurs while the person is in a state of extreme voluntary intoxication akin to automatism. Since s. 33.1 allows the court to convict an accused without proof of the constitutionally required mens rea, it violates s. 7 of the Charter. Section 33.1 also directs that an accused person is criminally responsible for their involuntary conduct. Because involuntariness negates the actus reus of the offence, involuntary conduct is not criminal, and the law recognizes that voluntariness for the conviction of a crime is a principle of fundamental justice.

Section 33.1 also breaches the right to be presumed innocent until proven guilty guaranteed by s. 11(d) of the Charter. To convict the accused, the Crown must prove all the essential elements of an offence beyond a reasonable doubt. A direction from Parliament that proof of one fact is presumed to satisfy proof of one of the essential elements of an offence can only comply with s. 11(d) if, in all cases, proof of the substituted fact leads inexorably to the conclusion that the essential element it replaces exists. Otherwise, the substitution may result in the accused being convicted, based on proof of the substituted fact, despite the existence of a reasonable doubt as to the essential element of the offence that it replaces. Section 33.1 improperly substitutes proof of self‑induced intoxication for proof of the essential elements of an offence. The fault and voluntariness of intoxication are substituted for the fault and voluntariness of the violent offence. This amounts to a constitutionally improper substitution. It cannot be said that in all cases under s. 33.1, the intention to become intoxicated can be substituted for the intention to commit a violent offence.

Parliament had before it a record that highlighted the strong correlation between alcohol and drug use and violent offences, in particular against women, and brought to the fore of Parliament’s attention the equality, dignity, and security rights of all victims of intoxicated violence. Parliament’s protective public goals cannot be understated: these interests bear meaningful attention at both principal steps in the s. 1 analysis. But the Crown must show on a balance of probabilities that the limits of ss. 7 and 11(d) brought by s. 33.1 are reasonable and demonstrably justified under s. 1 of the Charter. Given the patent risk that s. 33.1 may result in the conviction of an accused person who had no reason to believe that their voluntary intoxication would lead to a violent consequence, s. 33.1 fails at the proportionality step and thus cannot be saved under s. 1.

With respect to pressing and substantial purpose, the purpose of a provision must be properly identified with a view to justifying the infringement of the Charter, otherwise the exercise is not helpful for the balancing mandated by s. 1. In enacting s. 33.1, Parliament blocked the defence of automatism for the extremely intoxicated offender for two legitimate purposes: to protect the victims of extremely intoxicated violence, with particular attention to women and children whose equal place in society is compromised by sexual assault and other violent crimes of general intent in such circumstances; and to call offenders to answer for their choice to voluntarily ingest intoxicants where that choice creates a risk of violent crime. The protective purpose is sufficiently pressing and substantial to warrant limiting Charter rights — the protection of the public from intoxicated offenders is of sufficient importance to warrant overriding a constitutionally protected right or freedom. As for the accountability objective, it rests on a philosophical idea that one should not be able to create the conditions of one’s own criminal defence to block liability for the crime committed. An individual is responsible for their involuntary state because that person’s choice to ingest intoxicants and become extremely intoxicated ultimately creates a risk of violence. Stated in this manner, accountability in this context is pressing and substantial and fits appropriately within the Oakes analysis.

The deterrent and denunciating effects of s. 33.1 provide a rational connection to Parliament’s protective objective. While it is true that s. 33.1 applies to an accused who could not have foreseen the risk of a loss of control or of bodily harm, it also extends to situations in which there was a foreseeable risk of a loss of control and harm. Thus, an individual who consumes an intoxicant with psychosis‑inducing effects, including those who know they lost control of their conduct while in a drug-induced psychosis in the past, will be caught by s. 33.1. It is reasonable that Parliament would expect the provision to hold some modest deterrent effect for such individuals. This deterrent effect dissuades those contemplating this kind of intoxication and, as such, s. 33.1 is rationally connected to its protective purpose. In addition, s. 33.1 is rationally connected to the objective of holding individuals accountable, in as full a manner as possible, for the choice to become extremely intoxicated and the violence committed while in that state. It is obvious that a person foreclosed from advancing a defence that could result in an acquittal is held accountable.

Section 33.1 is, however, not minimally impairing of an accused’s ss. 7 and 11(d) rights. There are less harmful means of achieving Parliament’s objectives in a real and substantial manner. Options have been advanced that would trench less on the rights of the accused, including a stand-alone offence of criminal intoxication. Alternatively, a path to liability for the underlying violent offence might be based on a criminal negligence standard that would allow the trier of fact to consider whether a loss of control and bodily harm were both reasonably foreseeable at the time of intoxication. This latter option could allow an accused to be convicted for the underlying violent act and not simply negligent or dangerous intoxication while achieving the minimum objective fault standard required by the Constitution.

Section 33.1 also fails on an assessment of the relative benefits and negative effects of the law under the Oakes test. At the final stage under s. 1, the question is whether there is proportionality between the overall effects of the Charter‑infringing measure and the legislative objectives. This invites the broadest assessment of the benefits of s. 33.1 to society, weighed against the cost of the limitations to ss. 7 and 11(d) of the Charter. With respect to its salutary effects, s. 33.1 gives expression to the close and harmful association between extreme self-induced intoxication and violence and affirms society’s commitment to the equality and security rights of victims vulnerable to intoxicated crime. It responds meaningfully to inequality by recognizing that women and children deserve the full protection of the law and by condemning intoxicated gendered and family violence. It includes in its reach the irresponsible use and mixing of intoxicants that could lead to automatism and violence which discourages such behaviour and raises awareness about the link between extreme intoxication and violence. It contributes to public confidence in the criminal justice system, although this benefit must be balanced against recognizing society’s interests in a system of law governed by the principles of fundamental justice. As well, it fosters personal responsibility in respect of voluntary intoxication, which Parliament saw as one of the root sources of violent crime.

However, s. 33.1’s deleterious effects are serious and troubling. Its fundamental flaw is the risk of wrongful convictions it presents. It contravenes virtually all the criminal law principles that the law relies upon to protect the morally innocent. It enables conviction where the accused acted involuntarily, where the accused did not possess the minimum level of fault required, and where the Crown has not proven beyond a reasonable doubt the essential elements of the offence for which an accused is charged. Because s. 33.1 does not build in a criterion of objective foreseeability, it is impossible to say who, among those who voluntarily ingest intoxicants, has the degree of blameworthiness that would justify the stigma and punishment associated with the underlying offence with which they are charged. Where the intoxicant is licit, or where no reasonable person would anticipate the risk of automatism, whatever blameworthiness that comes from voluntary intoxication is relatively low and likely disproportionate to the punishment the individual would face if convicted for an offence committed in a state akin to automatism. It cannot be concluded that the morally innocent will not be punished. This is an extremely serious deleterious effect. Additionally, s. 33.1 disproportionately punishes for unintentional harm, contrary to the principle that punishment must be proportionate to the gravity of the offence.

The Crown has not discharged its burden of showing that the benefits suggested by the evidence are fairly realized by s. 33.1. There are socially and constitutionally acceptable alternatives to the Daviault exception that achieve the legitimate objectives of the law more fairly than in s. 33.1. In the absence of s. 33.1, the benefits tied to accountability and protection will continue to be met through the application of common law rules which prevent the defence of intoxication including to general intent crimes of violence. Parliament can further advance these goals with respect to self‑induced extreme intoxication akin to automatism through other means. The weight to be accorded to the principles of fundamental justice and the presumption of innocence cannot be ignored. Section 33.1 trenches on fundamental principles at the core of Canada’s criminal law system, creates a liability regime that disregards principles meant to protect the innocent, and communicates the message that securing a conviction is more important than respecting the basic principles of justice. Its impact on the principles of fundamental justice is disproportionate to its overarching public benefits. It should therefore be declared unconstitutional and of no force or effect.Reasons for judgment: Kasirer J. (Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Jamal JJ. concurring)

Neutral Citation: 2022 SCC 18

Docket Number: 39781