Extreme intoxication from alcohol as a defence to sexual assault: the non-mental disorder automatism defence

The media’s characterization of two recent appeal cases heard by the Ontario Court of Appeal created a lot of uncertainty and anger among the populace. The headlines read: “The Court of Appeal has cleared the way for a defence of extreme intoxication from alcohol for the offence of sexual assault.” While this is perhaps partially true, the headline was rather misleading.

The cases that were heard and decided were not sexual assault appeals nor were they based on extreme intoxication caused by alcohol. Two appeal cases (R v. Sullivan & R. v. Chan) were heard together as they both raised the same issue: the unconstitutionality of Section 33.1 of the Criminal Code which bars self-induced intoxication as a defence to assault matters including, sexual assault. This provision was a knee jerk reaction after the Canadian public rebelled at the use of this defence when applied to Mr. Daviault who sexually assaulted a wheelchair bound female under extreme intoxication. The Supreme Court of Canada allowed him to rely on the defence on account of being extremely intoxicated due to alcohol.

The result of the recent Court of Appeals case was that the Judge found that s. 33.1 of the Criminal Code unconstitutionally deprived the appellants of access to the non-mental disorder automatism defence. In particular, it violated both ss. 7 and 11 (d) of the Charter. In other words, it was held to be contrary to the principles of fundamental justice (s. 7 of the Charter) and the presumption of innocence (s. 11 (d) of the Charter) to permit accused persons to be convicted of involuntary acts that were not willed.  

An automatism defence is based on the involuntariness of the actions of the accused; meaning, they were not in control of body and mind. It is not a justification or excuse based on overconsumption of alcohol but a medical conclusion that at the time of the offence the individual had no control over their mind and body as a result of the extreme intoxication. In the case of Chan, there was evidence to support a conclusion that the impact of the “magic mushrooms” he consumed resulted in him having “super human strength” which was directly observed by the officers on the scene.

The result of a successful non-mental disorder automatism defence is that, in essence, it negates the crime. If there is no intent and no ability to control your actions, the courts have determined that you cannot be held accountable.

Nonetheless, despite the media’s hype, this defence is likely to be rarely successful. It will only be successful when there is evidence to prove the individual’s level of intoxication removed their ability to control their body and mind. It is unlikely that it will be applied in circumstances where someone has a foggy memory or loss of inhibitions from consumption of alcohol. It has to remove the individual’s capacity and ability to control their mind and body.

This is important to the workplace context as sexual harassment and sexual assault may apply concurrently to behaviour in the workplace especially when the complaint involves unwanted touching. While it may not be relied upon to come to an objective finding about whether or not the behaviour complained of occurred, it’s important to be aware of potential defences.

Back to the headline -  the reason there is some truth to the heading is that there is another case hanging in the wings. R. v. McCaw is a sexual assault matter that has been granted appeal on the basis of the unconstitutionality of s. 33.1 of the Criminal Code. Mr. McCaw will be provided the opportunity to rely on the non-mental disorder automatism defence for sexual assault on the basis of his alleged extreme intoxication by way of alcohol at the time of the sexual assault. If he succeeds, the defence may be applicable to the workplace context. Interestingly, this provision was struck down in the past but remained in the Code.

At this stage, it appears the Crown may appeal the decision to the Supreme Court of Canada. In which case, a decision on the matter will likely take some time before being heard and decided, if leave to appeal is granted.

What does this mean for investigations?

Given the nature of sexual harassment, the defence may be applicable in this context if there is clarity on its applicability in the sexual assault/extreme alcohol ingestion domain. However, without clarity, this defence will have little applicability to an investigation of this nature but could in the future. Unfortunately, it may result in respondents using alcohol as an excuse for bad behaviour. Unless, however, they can prove that they were involuntarily acting or unable to control their mind or body they are unlikely to succeed with such a defence. There may also be a negative impact on complainants who are typically already nervous about lodging complaints. Will they still bother if they know alcohol was a factor, could be a defence, and they can’t prove what occurred (he said/she said)? Complainants often worry about whether or not they will be believed.

Regardless, in the investigation context, a defence may be put forward and considered but will not change the overall objective finding of whether or not the impugned behaviour occurred. An objective conclusion will be reached based on the facts. A defence can be investigated and considered in the analysis but would not absolve a respondent at the investigation stage. It will provide the employer with information they may need to make a decision on how to proceed with managing the results of the investigation. 

Overall, we don’t yet know if the courts will follow suit (they have not in the past) and we don’t know if the Criminal Code will be amended to have the provision removed. Most importantly, we don’t know and the courts seem to question, the veracity of a defence on the basis of extreme alcohol intoxication. Can alcohol truly impair one to the point of acting involuntarily? The Court of Appeal noted in the recent R. v. Sullivan decision that the current breadth of science suggests it cannot.

What do you think? Leave a comment below!