R. v. Brown, 2022 SCC 18 (39781)
“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,  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.”
The SCC (9:0) allowed the appeal; section 33.1 of the Criminal Code is 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 is restored.
Justice Kasirer wrote as follows (at paras. 4-5, 105-107, 151-152):
“These are not drunkenness cases. The accused in each of these appeals consumed drugs which, they argued, taken alone or in combination with alcohol, provoked psychotic, delusional and involuntary conduct, which are reactions not generally associated with drunkenness. As I note below, there is good reason to believe Parliament understood that alcohol alone is unlikely to bring about the delusional state akin to automatism it sought to regulate in enacting s. 33.1 of the Criminal Code, R.S.C. 1985, c. C‑46. As Lauwers J.A. wrote in R. v. Sullivan, 2020 ONCA 333, 151 O.R. (3d) 353, “it is not clear that extreme alcohol intoxication causes non-mental disorder automatism as a matter of basic science” (para. 288). In any event, these reasons say nothing about criminal liability for violent conduct produced by alcohol alone short of the psychotic state akin to automatism experienced by Mr. Brown and spoken to by the trial judge. I specifically leave intact the common law rule that drunkenness, absent clear scientific evidence of automatism, is not a defence to general intent crimes, including crimes of violence such as sexual assault.
It thus bears emphasizing that Mr. Brown was not simply drunk or high. To be plain: it is the law in Canada that intoxication short of automatism is not a defence to the kind of violent crime at issue here. The outcome of the constitutional questions in these appeals has no impact on the rule that intoxication short of automatism is not a defence to violent crimes of general intent in this country.
In sum, the effect of s. 33.1 is to invite conviction even where a reasonable doubt remains about the voluntariness or the fault required to prove the violent offence, contrary to the presumption of innocence under s. 11(d).
As a final point, Mr. Brown asserts that s. 33.1 infringes s. 7 of the Charter because the violent offence occurs later in time than the intention to become intoxicated. Mr. Brown says this is contrary to rule of contemporaneity, which holds that the actus reus and mens rea must coincide. The Crown responds that symmetry is not required between the mens rea and the consequences of the prohibited act.
Symmetry differs from contemporaneity. Symmetry refers to knowledge or foreseeability of the precise consequences of the actus reus. For example, in Creighton, McLachlin J., as she then was, held that the accused need not foresee death, the consequence, specifically — it was enough to foresee bodily harm that is neither trivial nor transitory (pp. 44‑45). Contemporaneity holds that the guilty mind must concur with the prohibited act, although this principle is applied flexibly (R. v. Cooper,  1 S.C.R. 146, at p. 156). Contemporaneity has not yet been recognized as a principle of fundamental justice, and I respectfully decline to do so here. The mens rea, voluntariness, and improper substitution breaches remain the most accurate and relevant way of describing the way in which s. 33.1 imposes absolute liability, contrary to the principles of fundamental justice.
At the end of the day, Parliament’s own accountability objective was undone by the very means it chose to pursue it. In holding the extreme self‑intoxicated offender to account, s. 33.1 does not require objective foreseeability of the risk of falling into a state of automatism, much less the risk of consequential harm. Parliament’s goal may have been to impose personal responsibility for the creation of the risk of harm, but in the absence of a requirement of reasonable foreseeability, that goal is frustrated. The Minister said in the House — his point was echoed by the Crown in this appeal and the Sullivan and Chan appeals — that s. 33.1 “provides for the link between the fault in self‑induced intoxication and the harm or fault in the criminal conduct which forms the basis of the charge” (Hansard, March 27, 1995, at p. 11038). With great respect, that link is not found in s. 33.1, suggesting strongly that Parliament failed to satisfy its own announced purpose.
The fundamental flaw of s. 33.1 is the risk of wrongful convictions it presents. By denying even a small fraction of accused persons the ability to raise a reasonable doubt as to the voluntariness or mens rea elements of the offence charged, s. 33.1 permits an individual to be convicted, and subject to the stigma, liberty restrictions and other consequences of a criminal conviction, for involuntary conduct. Section 33.1 runs counter to the fundamental organizing principles that are necessary to allow individuals to face the power of the state in the criminal justice system fairly, in particular the all-important presumption of innocence. It enables conviction for conduct that an accused person was not aware of and could not control and therefore cannot be a “guilty act” as defined by the underlying offences. This result follows even where individuals ingest alcohol or drugs in common‑place situations where there is no subjective or objective foresight of automatism or violence.”